January 11, 2011, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Before: Richard Feldman
Decision Date: December 20, 2010
Mr. Jaggernauth was injured in a motor vehicle accident on August 6, 2005. The reason for arbitration was to determine if Mr. Jaggernauth sustained a catastrophic impairment as a result of the accident within the meaning of clauses 2(1.2)(f) and (g) of the Schedule.
On August 6, 2005, Mr. Jaggernauth was attending a family picnic. Mr. Jaggernauth was sitting at a picnic table when a vehicle, driven by his brother, reversed into him, knocking him from the table and then rolling over him. Mr. Jaggernauth suffered numerous serious injuries including fractures of his cervical spine, right forearm and left shoulder and serious lacerations to his head (requiring 30 staples) and to his right calf. As a result of this accident, Mr. Jaggernauth ultimately had to undergo surgeries to both shoulders and to his right forearm.
At the time of the accident, Mr. Jaggernauth was 37 years of age. He was married with two children. He was energetic and physically and socially active in sports, in leisure activities and at work. He was employed as a machine operator and frequently worked overtime. He had an extremely limited education (up to Grade 8 in Guyana) and was functionally illiterate in English.
Following the accident, Mr. Jaggernauth was unable to return to any employment. At the time of the hearing, Mr. Jaggernauth was receiving CPP disability benefits and Economical was continuing to pay income replacement benefits.
As a result of the accident, Mr. Jaggernauth suffered from chronic pain and a reduced range of motion in his neck and shoulders. He suffered some loss of sensation in his right forearm. He has a number of scars, both from the lacerations to his head and right calf and also from the surgeries to his shoulders and right forearm. He had been diagnosed with numerous psychological conditions and was receiving psychological treatment for years following the accident. He was taking numerous medications for accident-related conditions, including narcotics for the pain and anti-depressants.
During seven days of hearing (not including opening and closing arguments), the Arbitrator heard testimony from the following persons (not necessarily in order): Mr. Jaggernauth, Mrs. Jaggernauth (his wife), Dr. JP (his treating psychologist), Dr. JM (a physiatrist who participated in a catastrophic assessment conducted by Custom Rehab & Assessments Canada Ltd. at the request of the Insurer), Dr. AS (a medical doctor from the Toronto Poly Clinic who had treated Mr. Jaggernauth for his chronic pain), Dr. HB of Omega Medical Associates (who organized a team and wrote the executive summary for the catastrophic impairment assessment that was prepared to rebut that of Custom Rehab), Dr. HR (a psychiatrist who participated in the catastrophic impairment assessment conducted by Omega), Dr. CB of Impairment Resources (who, at the request of the Insurer, organized a team to conduct a file review and offer a third opinion with respect to the issue of Mr. Jaggernauth's level of impairment) and Dr. SL (a psychologist who was on the team organized by Dr. CB).
The Law – The Relevant Thresholds
For an accident that occurs after September 30, 2003 (as in this case), under clause 2(1.2)(g) of the Schedule, a catastrophic impairment includes an impairment that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.
In assessing the severity of mental or behavioural impairments under the Guides, four aspects of functional abilities are considered: (1) activities of daily living; (2) social functioning; (3) concentration, persistence and pace; and (4) deterioration or decompensation in work or worklike settings (sometimes referred to as "adaptation").
Also, independence, appropriateness, and effectiveness of activities must be considered. The appeal level of this Commission has ruled in Aviva Canada Inc. and Pastore (2009) that a rating of marked or extreme impairment in any one or more of these four areas is sufficient to qualify as a catastrophic impairment; this decision was binding upon the Arbitrator’s decision.
For an accident that occurs after September 30, 2003 (as in this case), under clause 2(1.2)(f) of the Schedule, a catastrophic impairment also includes an impairment that, in accordance with the AMA Guides (4th ed.), results in 55 per cent or more impairment of the whole person.
Summary of Relevant "CAT" Assessments
There were essentially four experts or group of experts whose opinions were competing in this case.
Custom Rehab & Assessments Canada Ltd. performed the first catastrophic ("CAT") assessment. It was found by this group that Mr. Jaggernauth did not qualify under clause 2(1.2)(g) of the Schedule as being catastrophically impaired as he was found only to have suffered mild to moderate mental or behavioural impairments. From the perspective of physical impairments, Custom Rehab concluded that Mr. Jaggernauth had a 30% whole person impairment (WPI) rating. Custom Rehab concluded that Mr. Jaggernauth's mental or behaviour impairments would rate 24 – 34% WPI (which Custom Rehab, in its executive summary, translated to 29% WPI for mental/behavioural impairments). This resulted in an overall WPI rating (for both physical and psychological impairments) of 50%, which is below the threshold (55%) for catastrophic impairment under clause 2(1.2)(f) of the Schedule.
Mr. Jaggernauth obtained a rebuttal to this opinion from Omega Medical Associates. It was also found by this group that Mr. Jaggernauth did not qualify under clause 2(1.2)(g) of the Schedule as being catastrophically impaired as he was found, overall, only to have suffered moderate mental or behavioural impairments. From the perspective of physical impairments, Omega concluded that Mr. Jaggernauth had a 39% WPI rating. Omega concluded that Mr. Jaggernauth's mental or behaviour impairments would rate 35-40% WPI. This resulted in an overall WPI rating (for both physical and psychological impairments) of 60-64%, which surpasses the threshold (55%) for catastrophic impairment. Therefore, on the basis of clause 2(1.2)(f) of the Schedule, Omega concluded that Mr. Jaggernauth was catastrophically impaired.
Custom Rehab was provided with a copy of the Omega report and was asked to comment thereon. After reviewing the report of Dr. LB, Dr. JM revised his WPI rating for physical impairments to 33% (up from the original total of 30%). Dr. JM then went on to add this rating to 29% WPI for mental or behavioural impairments which he attributed to Dr. G. According to Dr. JM, this resulted in a revised overall WPI rating (for both physical and psychological impairments) of 52%, which was very close to, but did not meet, the threshold for a finding of catastrophic impairment under clause 2(1.2)(f) of the Schedule.
In a letter dated June 13, 2008, Dr. G indicated that he accepted that Mr. Jaggernauth's depression had significantly worsened since Dr. G met with him and that, given the worsening of Mr. Jaggernauth's symptoms, Dr. HR's higher impairment ratings were reasonable. Dr. G suggested postponing giving a final opinion as to Mr. Jaggernauth's catastrophic impairment status until some later date and, during the intervening period, "Mr. Jaggernauth hopefully receives appropriate treatment supervised by a psychiatrist".
Mr. Jaggernauth's treating psychologist, Dr. JP, also provided an opinion as to the severity of his mental/behavioural impairments. She authored two reports (November 19, 2008 and May 3, 2010) in which she concluded that Mr. Jaggernauth suffered from marked or extreme impairments in all aspects of his psychological functioning. On the basis of psychological impairment alone, she concluded that Mr. Jaggernauth had suffered a catastrophic impairment.
In early 2010, the Insurer retained the services of Impairment Resources to review the relevant medical records and previous opinions concerning the issue of whether Mr. Jaggernauth had suffered a catastrophic impairment. Members of this team did not meet with or examine Mr. Jaggernauth. They did have access to surveillance evidence. They disagreed with the manner in which the two Canadian assessment teams interpreted and applied the AMA Guides (4th ed.). It was found by this group that Mr. Jaggernauth did not qualify under clause 2(1.2)(g) of the Schedule as being catastrophically impaired as he was found only to have suffered mild to moderate mental or behavioural impairments (i.e., no marked or extreme mental or behaviour impairments). Applying its interpretation of the AMA Guides (4th ed.), Impairment Resources came up with a WPI rating of 18% for physical impairments and 18% for mental or behaviour impairments for an overall WPI rating (if the two can be combined) of 33%, which is well below the threshold (55%) for catastrophic impairment under clause 2(1.2)(f) of the Schedule.
Overview of the AMA Guides (4th ed.) and its Application in the Context of Accident Benefit Claims in Ontario
The AMA Guides have been used in the United States primarily in relation to obtaining a medical opinion as to the severity of a person's permanent impairment. This estimate of permanent impairment is then considered as one of the factors used to determine whether the person is disabled from working, which can result in that person receiving disability benefits under the federal social security system and/or under some form of government workers' compensation program.
The Fourth Edition conveys several basic principles. A key tenet is that the book applies only to permanent impairments, which are defined as adverse conditions that are stable and unlikely to change (in spite of further medical or surgical therapy). Evaluating the magnitude of these impairments is in the purview of the physician, while determining disability is usually not the physician's responsibility. Impairment percentages derived using AMA Guides criteria represent informed estimates (rather than precise determinations) of the degree to which an individual's capacity to carry out daily activities has been diminished. Disability is a description of the extent to which one or more impairments prevent a person from meeting their personal, social, or occupational demands. A person can have an impairment (loss or abnormality of psychological, physiological, or anatomical structure or function) that does not prevent that person from engaging in any of the activities that they need or want to perform; such a person can be said to have an impairment but no disability, as defined in the AMA Guides.
For an evaluation to be considered to have been done "in accordance" with the AMA Guides (4th ed.), it should be carried out in accordance with the directions in the Guides and should be based on the following three components:
1. Gather and review as much information as possible;
2. Follow the Guides protocols for evaluating each body part or system;
3. Utilize the tables relating to the evaluation protocols.
The AMA Guides (4th ed.) caution the reader (at p. 3) that the Guides do not and cannot provide answers about every type and degree of impairment: “The physician's judgment and his or her experience, training, skill, and thoroughness in examining the patient and applying the findings to Guides criteria will be factors in estimating the degree of the patient's impairment. These attributes compose part of the 'art' of medicine…”
Furthermore, the Guides are meant to provide an informed estimate of impairment, not a precise measure of the extent to which such impairments disable the individual from specific tasks. Therefore, the AMA Guides (4th ed.) states as follows (at pp. 4-5):
“Each administrative or legal system that uses permanent impairment as a basis for disability ratings should define its own means for translating knowledge about an impairment into an estimate of the degree to which the impairment limits the individual's capacity to meet personal, social, occupational, and other demands or to meet statutory requirements.
It must be emphasized and clearly understood that impairment percentages derived according to Guides criteria should not be used to make direct financial awards or direct estimates of disabilities.”
There are several difficulties in applying the AMA Guides (4th ed.) in the context of a claim for accident benefits in Ontario:
1. First, the AMA Guides were designed for and, in the United States, are used primarily in cases where a person is applying for long-term financial compensation as a result of an alleged disability that prevents the person from working. Not surprisingly, there appears to be a heavy emphasis (or bias) in the AMA Guides towards impairment of work-related functions, with significantly less emphasis on other activities of daily living and social functioning.
2. Second, the fourth edition of the AMA Guides is now out of date. It is based on data that is more than twenty years old and does not necessarily reflect the most up-to-date approach to the issue of long-term physical and mental/behavioural impairments.
3. Third, the AMA Guides recommend that an estimate of permanent impairment not be done until the affected person has stabilized (i.e., has reached maximum recovery), regardless of how long that takes. In the context of the Ontario Schedule, however, it is not clear that this is practical or necessary.
A finding of catastrophic impairment is not necessarily linked to a permanent impairment. For instance, a score of 9 or less on the Glasgow Coma Scale ("GCS") according to a test administered within a reasonable period of time after an accident by a person trained for that purpose would also qualify a person as catastrophically impaired. A reduced GCS score suggests some brain injury. Nevertheless, a person who had a GCS score of 9 or less shortly after an accident may suffer few, if any, long-term effects. The GCS score is no indication of permanent impairment.
If one looks at all of the types of impairments under the Schedule that can qualify as catastrophic impairments (paraplegia, quadriplegia, amputation, permanent total loss of vision in both eyes, brain injury as measured by a diminished GCS score, marked or extreme mental or behavioural impairments, or a combination of impairments that result in 55% or more whole person impairment) and tries to find a common thread, what becomes apparent is that the legislature has attempted to provide access to an enhanced level of accident benefits to those who have suffered the type of impairments that are likely to result in the person requiring substantially greater-than-average assistance.
4. Fourth, assigning a WPI number suggests a precision that just does not exist. The WPI rating is a rough estimate of the long-term impairments suffered by an individual. In and of itself, the WPI rating offers little insight into what effect those impairments will have on that person's day-to-day functioning in the real world (i.e. their level of disability with respect to specific, real-world tasks).
5. Fifth, the AMA Guides (4th ed.) does not provide a methodology for assigning a WPI rating for mental/behavioural impairments.
6. Sixth, the Guides assume that there will be multiple assessments and that assessors will communicate with each other and work towards a consensus. It suggests that where one assessor obtains results that are different from a previous assessor's results, the two assessors should communicate and try to resolve the divergent results. The arbitrator found that this expectation of collaboration is unrealistic in the adversarial system that exists in Ontario.
7. Finally, notwithstanding the warnings contained therein, in the U.S., an estimate of impairment under the AMA Guides often determines (or plays a significant role in determining) whether a person receives financial compensation. In Ontario, under the Statutory Accident Benefits Schedule, a determination that a person has suffered a catastrophic impairment never directly results in the payment of any benefits. It simply permits the person to make claims to an enhanced level of benefits. If challenged by the insurer, a person who has been found to have suffered a catastrophic impairment will still have to prove that he or she suffers the requisite level of impairment to qualify for that particular benefit.
A larger and more liberal interpretation of the AMA Guides may be justified in Ontario given that the Schedule is meant to be consumer protection legislation and given the fact that a determination of catastrophic impairment in Ontario only permits an accident victim to advance a claim but does not necessarily result in any compensation. Therefore, in the case of ambiguity, the arbitrator found that it is appropriate to construe the AMA Guides in a manner that favours the insured person. In a close case, it is probably preferable to err on the side of finding a person to be catastrophically impaired and permit them their "day in court" than to automatically bar a person who is seriously impaired from making further claims because of an unnecessarily restrictive or narrow interpretation of a guide to medical assessments that was designed for use in a different regime and, at best, provides only an estimate of the person's level of impairment.
Mr. Jaggernauth's Psychological History and Diagnoses
There was no evidence to suggest that Mr. Jaggernauth had any mental or behavioural impairments prior to the accident of August 2005. Since the accident, he developed mental and behavioural impairments that were attributed to the accident.
Unfortunately, Mr. Jaggernauth's psychological condition quickly deteriorated. In May 2006, he was seen by Dr. JP and, based upon her interview, she recommended a comprehensive psychological assessment.
In August 2006, Mr. Jaggernauth's wife reported that Mr. Jaggernauth was "miserable" and Mr. Jaggernauth agreed that he was upset and depressed because he could not do what he used to do. He also reported problems with memory and concentration.
Around the same time (August 2006), Dr. JP produced her first psychological assessment of Mr. Jaggernauth. Dr. JP diagnosed Mr. Jaggernauth as having post-traumatic stress disorder and major depressive disorder (moderate).
Economical arranged for a multi-disciplinary assessment of Mr. Jaggernauth in August 2006 that included a psychological assessment by Dr. DC. Dr. DC determined that as a direct result of the accident, Mr. Jaggernauth met the diagnostic criteria for: (1) Adjustment Disorder Associated with Anxious and Depressed Mood; (2) Pain Disorder with Associated Psychological Factors and a General Medical Condition. Dr. DC also noted symptoms of post-traumatic stress. Dr. DC recommended psychotherapy and consideration of a chronic pain management program.
In the period of March and April 2007, at the instigation of the Insurer, Dr. MC conducted a neuropsychological assessment of Mr. Jaggernauth and found that he suffered from: (1) post-traumatic stress disorder; (2) major depressive disorder (moderate to severe), single episode with psychotic features; and (3) pain disorder associated with both psychological factors and general medical condition, chronic.
Based upon his review of the medical history and his assessment of Mr. Jaggernauth, Dr. G was satisfied that Mr. Jaggernauth's accident-related diagnoses were as follows: (1) major depressive disorder (single episode, chronic); (2) pain disorder associated with both psychological factors and a general medical condition; and (3) anxiety disorder not otherwise specified (with features of post-traumatic stress disorder).
In June 2008, Dr. G was asked to comment on the report of Dr. HR. He found that the worsening of Mr. Jaggernauth's depressive symptoms, the worsening of psychotic symptoms and his increasing preoccupation with suicide reported by both Dr. HR and Dr. JP were plausible and well supported by clinical evidence. Therefore, as noted earlier in this decision, Dr. G found Dr. HR's higher impairment ratings to be reasonable but questioned whether it was appropriate to be providing any opinion as to Mr. Jaggernauth's permanent level of impairment given that Mr. Jaggernauth's psychological condition had still not stabilized and that, in the opinion of Dr. G, all treatment options (including much more aggressive pharmacological treatment, especially for his psychotic depression) had not yet been exhausted.
In February 2010, Dr. MC was authorized by Economical to perform a neuropsychological re-assessment of Mr. Jaggernauth. After an extensive review of the relevant documentation, an interview of Mr. Jaggernauth and administration over two days of numerous neuropsychological tests, Dr. MC concluded as follows:
“It is my opinion that at this time, Mr. Jaggernauth's condition is permanent and he is left with serious impairments and the need for support… The primary issue is depression secondary to pain and physical restrictions, and both pharmacological (psychiatric) and psychological help need to continue, most likely indefinitely. His serious physical restrictions prevent him from returning to work, to his previously enjoyable lifestyle, and from involvement in a full range of domestic chores. Further progress is unlikely.”
Assessing the Severity of Impairment Caused by Psychological Problems
For an assessment to be considered valid, it must be done in accordance with the methodology required by the Guides. Amongst other requirements, the assessor must:
1. Gather and review as much information as possible;
2. Follow the Guides evaluation protocols;
3. Utilize the tables relating to the evaluation protocols; and
4. Prepare a report that conforms in form and content to the requirements of the Guides.
The Guides are designed to estimate impairment of function. A person can be diagnosed with a serious condition but have little or no impairment of function. This can be because the condition is in remission, the symptoms are being controlled by medication or other forms of treatment, the condition affects a function that is not crucial to this individual's daily activities and so forth.
Impairment of function due to mental or behaviour impairments is measured in four spheres: activities of daily living; social functioning; concentration, persistence and pace; and deterioration or decompensation in work or worklike settings (adaptation).
Analysis - Clause 2(1.2)(g) of the Schedule – Classifying Mr. Jaggernauth's Level of Impairment Due to Mental and Behvioural Disorders
Dr. JP diagnosed Mr. Jaggernauth as having: (1) severe depression; (2) post traumatic stress disorder; and (3) pain disorder. The intensity of his symptoms changed over time but the diagnoses remained the same.
While the observations made by Dr. JP may have been useful in this case (after all, she got to meet with him many more times and over a considerably longer period than any of the other experts who have given an opinion in this case), the arbitrator gave little weight to her conclusions when it came to the categorization of the level of Mr. Jaggernauth's mental or behavioural impairments for the reasons that follow.
First and foremost, she utterly failed to follow the procedures required for a valid assessment under the Guides. She made no effort to gather and evaluate the complete medical history. In particular, she did not obtain clinical notes and records, test results, assessments or reports from other mental health professionals who treated or assessed Mr. Jaggernauth.
Her reasoning was that it was not necessary since she knew Mr. Jaggernauth better than anyone else so that there was no point in reviewing such records. On cross-examination, it became obvious, however, that Mr. Jaggernauth had withheld some very important information from Dr. JP, including the fact that it was his brother who had run him over and that he had undergone a psychological assessment in August 2006. It therefore appears that, had she obtained and reviewed the complete medical records, she may have gained some useful insights. In any event, failing to do so meant that her assessment was not done in accordance with the Guides.
Furthermore, the testimony of Dr. JP revealed that she was really not as familiar with the Guides as she ought to have been and could not even say which edition of the Guides she had used in making her assessment (and there are significant differences between editions).
Finally, Dr. JP seemed more concerned with the seriousness of the diagnoses than with gathering information about how Mr. Jaggernauth's psychological problems were actually impairing his function. Certainly, her notes were lacking much in the way of specific examples. Her conclusions appeared to be based more on her concern for what would occur in the future than on specific examples from the past.
For the reasons that follow, the arbitrator gave less weight to the conclusions of the assessors from Impairment Resources when it came to the categorization of the level of Mr. Jaggernauth's mental or behavioural impairments.
First, Dr. SL and the other assessors at Impairment Resources never actually met with Mr. Jaggernauth. While this is not necessary in every case (and it was recognized that the Guides suggest that anyone trained in the Guides should be able to review and comment upon another practitioner's assessment), in a complex case of this sort, firsthand observations was important. This was especially true because the credibility of the person being assessed was an issue. Dr. SL stated that he believed that credibility was an important issue in this case.
Second, Dr. SL admitted that he "downgraded" the impairment classification for Activities of Daily Living and for Social Functioning from "moderate" to "mild to moderate" because of his concerns that Mr. Jaggernauth was exaggerating his level of impairment. The surveillance evidence in this regard influenced Dr. SL’s opinion. Dr. SL's conclusion that Mr. Jaggernauth was deliberately exaggerating his level of impairment was also based upon the results of neuropsychological tests that were administered to Mr. Jaggernauth and validity measures from those tests.
Dr. MC (one of the experts who actually obtained the test results that Dr. SL found to be questionable), however, was not concerned about the credibility of Mr. Jaggernauth. Dr. JP testified that cultural factors could affect the reliability of validity testing. Dr. HR agreed that validity testing can be influenced by cultural factors and went on to testify that it can also be influenced by such factors as: a lack of education/illiteracy (i.e., having the questions read to the person being assessed can skew the results) and an unconscious "cry for help" (which can be a symptom, rather than evidence of a deliberate attempt to mislead). Dr. HR did not find any evidence of exaggeration. In fact, none of the other mental health professionals who actually met with Mr. Jaggernauth had any serious concerns in this regard.
Third, although the assessors at Impairment Resources were familiar with the AMA Guides, this was primarily in the context of workers' compensation and social security cases from the U.S. Dr. CB testified that, while he had been involved in tens of thousands of assessments under the Guides, he had been involved in as few as 10 cases from Ontario. A narrower, more restrictive interpretation of the Guides may be appropriate in the U.S. A larger and more liberal interpretation may be required in the context of a catastrophic impairment assessment under the Ontario Statutory Accident Benefits Schedule.
Furthermore, the refusal of Impairment Resources to assess any impairment that was not static (i.e., unchanging and recorded consistently by virtually every assessor) is an approach that has been disapproved of by the Financial Services Commission in the context of a catastrophic impairment assessment under the Ontario Statutory Accident Benefits Schedule.
All of this suggested that the approach taken by the assessors from Impairment Resources simply had been inappropriate for assessments of catastrophic impairment under the Ontario Statutory Accident Benefits Schedule. While the arbitrator did not dismiss out-of-hand the opinions of the assessors from Impairment Resources, he was mindful that the approach they took and the interpretation they gave to the Guides was not be consistent with the jurisprudence and the statutory scheme here in Ontario.
Effect of Mr. Jaggernauth's Mental or Behavioural Impairments on Activities of Daily Living
Mr. Jaggernauth was physically capable of doing many activities of daily living but he was often so depressed or in so much pain that he did not. He would stay in bed or refuse to leave the bedroom. A main feature of depression is a feeling of exhaustion.
The arbitrator accepted the testimony of Mr. Jaggernauth and his wife that there were many days that, due to his psychological impairments, Mr. Jaggernauth did not engage in many of the daily activities in which he used to engage and could not do so independently (without constant reminders and cuing), appropriately and effectively.
Based upon the evidence, the arbitrator found that the impairment to Mr. Jaggernauth's activities of daily living as a result of mental or behavioural impairments was moderate (but at the lower end).
Effect of Mr. Jaggernauth's Mental or Behavioural Impairments on Social Functioning
Both Mr. Jaggernauth and his wife reported episodes of angry outbursts, where Mr. Jaggernauth was verbally abusive towards his wife or showed violence to objects. His relationship with his wife suffered greatly. All of the evidence suggested that this was completely different from the way things were before the accident. While he could sometimes carry on a friendly conversation, he often had difficulty engaging in meaningful interactions with others. He withdrew when depressed.
Surveillance revealed that Mr. Jaggernauth was capable of some social interaction. On November 27 and 28, 2008, he was seen sitting in the food court of a shopping mall engaged in conversation with others. On August 17, 2009, on what was presumably a warm summer day, he appeared to enjoy the company of others while he entertained a few friends for a couple of hours outside of his new home in Brampton. On March 17, 2010, he was seen chatting with someone outside a restaurant for about 20 minutes while he smoked a cigarette. Thus, Mr. Jaggernauth was not significantly impeded or precluded by his impairments from social functioning.
Nevertheless, based upon the testimony of Mr. Jaggernauth and his wife, when one compared how Mr. Jaggernauth interacted with others at the time of the hearing compared to how he interacted before the accident, there was a dramatic difference. At the time of the hearing, he spent much less time with former friends. He was rarely involved in social activities. Perhaps most importantly, his relationship with his wife suffered greatly. His angry outbursts and his frequent periods of depression and self-imposed isolation severely damaged this relationship.
Before the accident, Mr. Jaggernauth said that he and his wife were best friends. Mr. Jaggernauth described their marriage before the accident as "great". Since the accident, they rarely went out together. They fought a lot. Mr. Jaggernauth was often angry and moody and had thrown a glass at his wife on one occasion.
According to Mrs. Jaggernauth, while they stayed together for the benefit of the children, their relationship was in crisis. Because of Mr. Jaggernauth's mood, they could talk about either the past or the future. It was hard to get him to talk at all. He did not complain a lot but he would not tell his wife how he was feeling. Sometimes he was happy (like when they moved into their new home in Brampton) but it never lasted long. They rarely went out or had fun. They argued all the time. Mrs. Jaggernauth said that she still loved her husband but she felt that she was on her own – that she had no support.
Mr. Jaggernauth's social life before the accident revolved around his friends and family and, since the accident, his social functioning in both regards had been impaired. The arbitrator therefore found that the impairment to Mr. Jaggernauth's social functioning as a result of mental or behavioural impairments was moderate.
Effect of Mr. Jaggernauth's Mental or Behavioural Impairments on Concentration, Persistence and Pace
The arbitrator noted that Dr. JP, in her report of May 3, 2010, related that Mr. Jaggernauth's sleep was still highly disturbed and non-restorative (due to pain, anxiety, nightmares, etc.), which left him exhausted during the day, with poor energy levels. Although Mr. Jaggernauth testified that he tried to take naps during the day, it was reasonable to conclude that chronic sleep deprivation was likely impairing Mr. Jaggernauth's ability to concentrate on and to persist in many tasks.
In a complex case such as this, especially where credibility was an issue, the arbitrator found that it was important for an assessor to actually meet with the person being assessed. The fact that the assessors at Impairment Resources were the only ones never to have met with Mr. Jaggernauth is one of the factors that the arbitrator considered in deciding how much weight to give their opinion. It was also found that the assessors at Impairment Resources were unduly influenced by the results of the 2010 validity tests and by the surveillance. It was worth noting that the assessor who obtained the results in 2010 (Dr. MC) was not concerned that the results he obtained lacked validity. Also, there may have been reasonable explanations for poor validity scores other than a deliberate attempt by Mr. Jaggernauth to exaggerate his symptoms. Following a review of the surveillance, the arbitrator did not find that it undermined Mr. Jaggernauth's credibility or that it was particularly helpful in assessing the impact of Mr. Jaggernauth's mental or behavioural impairments on concentration, persistence and pace.
It was found that the impairment to concentration, persistence and pace as a result of mental or behavioural impairments was moderate.
Effect of Mr. Jaggernauth's Mental or Behavioural Impairments on Adaptation
The experts seemed to agree that adaptation was the area of function which had been most affected by Mr. Jaggernauth's mental or behavioural impairments. Mr. Jaggernauth had great difficulty coping with change or stress, he had difficulty maintaining a schedule as he was very labile and his participation in any activity was dependent upon his mood at that moment. He had not been able to work.
The evidence clearly revealed that Mr. Jaggernauth responded extremely poorly to stress and to unexpected changes. He had great difficulty adjusting to the idea that he would not make a full recovery from the accident and that he would have to continue to live with chronic pain and other accident-related problems, probably for the rest of his life. At such times, he simply would "shut down" and he posed a risk to himself or others. Dr. SL testified that this did not count because, although it was an example of decompensation, it was in response to events that anyone would find stressful. What Dr. SL failed to acknowledge was the severity and duration of the decompensation that the evidence suggested is much more than normal.
Pharmacological treatment and psychotherapy helped Mr. Jaggernauth to reach a level of stability in recent years. Nevertheless, when it came to adaptation, the level of impairment certainly bordered on one that significantly impeded useful functioning. The arbitrator had no difficulty in finding that the impairment to Mr. Jaggernauth's adaptation as a result of mental or behavioural impairments was at the high end of the moderate range.
Conclusion with respect to clause 2(1.2)(g) of the Schedule
Based on the evidence described above, the arbitrator found that Mr. Jaggernauth had not suffered an impairment that, in accordance with the Guides, resulted in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder. Therefore, Mr. Jaggernauth failed to prove on a balance of probabilities that he sustained a catastrophic impairment within the meaning of clause 2(1.2)(g) of the Schedule.
Analysis - Clause 2(1.2)(f) – 55% or More Impairment of the Whole Person
a) Estimating a WPI Rating Based on Physical Impairments
As a direct result of the accident, Mr. Jaggernauth sustained a type III odontoid fracture of the C1/C2 vertebrae with displacement of up to 8 mm on imaging. By the time of the CAT assessments, the fracture had healed (without the need for surgery), but with residual pain and asymmetric loss of motion of the cervical spine. According to both the Custom Rehab and the Omega reports, such an injury is given a 25% WPI rating under the AMA Guides (4th edition).
The divergence in opinions concerning the appropriate rating to assign to Mr. Jaggernauth's spinal injury resulted largely from inconsistency found within the AMA Guides (4th ed.). For most impairments, including those related to the musculoskeletal system, the Guides instruct the assessor to only consider permanent impairments that exist at the time of assessment. In Chapter 3 (The Musculoskeletal System), however, an exception seems to have been made when it comes to spinal injuries.
In the 4th edition of the Guides, for most musculoskeletal impairments, the level of impairment is measured by loss of range of motion. For spinal injuries, the 4th edition of the Guides introduced an "Injury Model" (also called the Diagnosis-Related Estimates Model or DRE Model).
The question, then, that had to be answered in this case was, "How should one estimate impairment in the case of a healed odontoid fracture of the cervical spine with loss of motion segment integrity?" Should the whole person impairment rating be determined using the most appropriate category identified in Table 70 based upon the original injury or based upon the person's condition at the time of assessment? Dr. JM and Dr. HB, in their respective reports, both rated the impairment as it was at the time of injury. Dr. CB's team considered the injury after it had healed. Dr. JM testified that, were he to do the assessment again, he now would also base the WPI rating on the healed injury rather than the original injury.
The arbitrator concluded that, for this type of injury, the impairment rating should be based upon the initial injury unless the Guides specifically provide otherwise.
The medical professionals who testified about this issue all agreed that if Mr. Jaggernauth had surgery to repair the cervical fracture, the appropriate WPI rating would be 25%. They also agreed that if surgery had been recommended but he had refused, the appropriate WPI rating would be 25%. In both cases, it would not have mattered if the condition of Mr. Jaggernauth's cervical spine had improved or deteriorated. It therefore seemed absurd to the arbitrator that, according to the interpretation urged by Dr. CB, the fact that Mr. Jaggernauth's doctor tried to help him heal through use of a cervical collar rather than through surgery should result in a substantially lower WPI rating. Dr. CB offered no medical justification for treating similar cases in such a dissimilar fashion and the arbitrator rejected such an interpretation.
It was argued that this was inconsistent with the overall scheme of the Guides which, in general, seeks to rate only permanent injuries. While it is true that, in general, the Guides seek to rate only permanent injuries (and this principal is repeated in the section of the Guides on the "The Spine"), the introduction of an Injury Model into the 4th edition of the Guides is an anomaly that was bound to create uncertainty. In cases of ambiguity, as already indicated, in the context of the Ontario accident benefits scheme, the arbitrator found it appropriate to resolve such ambiguities in favour of the insured person.
Therefore, the aribtrator concluded that the appropriate impairment rating related to Mr. Jaggernauth's cervical spine injury was 25% whole person impairment.
Using the Combined Values Chart (p. 322) of the Guides, the total whole person impairment rating for Mr. Jaggernauth based upon his physical impairments was 34%. This was based upon a WPI rating of 25% for the spinal injury, 9% for impairment of the upper extremities and 3% for the effects of medication.
b) Combining Estimates of Mental or Behavioural and Other Impairments
If an insured person proves that they suffer from a marked or extreme mental or behavioural impairment under clause (g), they will be deemed to be catastrophically impaired and there is no need to refer to clause (f). When considering whether a person's impairments or combination of impairments results in 55 per cent or more impairment of the whole person, the only clause being considered is clause (f). The real issue under clause (f) is whether a numeric rating for mental or behavioural impairments can be included as part of the whole person impairment rating.
Although the preponderance of the existing case law (both from the Financial Services Commission of Ontario and from the Ontario Superior Court of Justice) suggests that a whole person impairment rating under clause (f) ought to include a rating for mental or behavioural impairments, this issue is far from settled.
The arguments for including such a rating are explained in the Desbiens decision. Based upon the cases that the arbitrator read and from the testimony given and submissions made before him (and at the risk of oversimplifying), some of the main arguments in favour of the inclusion of a rating for mental or behavioural impairments can be summarized in the following six ways:
1. The language used in Chapter 14 of the Guides concerning this issue is equivocal. If the Guides are ambiguous, they ought to be construed in a large and liberal fashion in favour of the insured person.
2. It is not really an assessment of the "whole person" if you exclude consideration of psychological impairments and it would be unfair to the injured person to ignore significant psychological impairments just because they fall below the level of "marked" or "extreme".
3. The 4th edition of the AMA Guides does not say to ignore mental or behaviour impairments when assessing impairment of the whole person; it simply anticipates using word descriptors for such impairments rather than trying to reduce the mental or behavioural impairments to a numeric (percentage) rating.
4. Behavioural impairments are specifically given a whole person impairment rating in the 4th edition of the Guides when such impairments are neurologically-based. To fail to rate virtually identical behavioural impairments that are psychologically-based would be discriminatory and might well fail to withstand challenge under either the Ontario Human Rights Code or the Canadian Charter of Rights and Freedoms.
5. Previous and subsequent versions of the AMA Guides (for example, the 2nd and 6th editions) do permit the inclusion of a numeric rating for mental or behavioural impairments as part of the estimation of whole person impairment.
6. Many other jurisdictions that use or have used the 4th edition of the AMA Guides have found a way to permit a whole-person impairment assessment that provides a numeric impairment rating that reflects both physical and psychological impairments.
The arguments against including a rating for mental or behavioural impairments as part of a whole person impairment rating under clause (f) are set out in the recent decision of Kusnierz. Again, at the risk of oversimplifying, some of the main arguments against the inclusion of a numeric rating for mental or behavioural impairments can be summarized in the followsing three ways:
1. On this issue, the Guides are not ambiguous. They deliberately do not permit the mental and behavioural disorders in Chapter 14 to be assessed in percent terms and combined with the percentage values derived from impairments assessed under the other chapters of the Guides for the purpose of determining whole person impairment.
2. The structure of the Schedule reinforces the bright line demarcation between mental and behavioural impairments on the one hand (which are dealt with under clauses 2(1.1)(g) or 2(1.2)(g) of the Schedule, depending upon the date of the accident) and other types of impairments on the other hand (which are dealt with under clauses 2(1.1)(f) and 2(1.2)(f) of the Schedule).
3. This interpretation is consistent with the legislative purpose of limiting catastrophic designation to rare and exceptional cases including those where, as a result of a motor vehicle accident, a person has suffered a marked or extreme mental or behavioural impairment (clause (g)) or where, based on other types of impairments, the person has sustained impairments that, in accordance with the AMA Guides, 4th edition, results in 55 per cent or more impairment of the whole person (clause (f)).
In short, the arguments against including a percentage rating for mental or behavioural impairments as part of a whole person impairment rating under clause (f) is that doing so would not be in accordance with the 4th edition of the Guides and would be contrary to the intent of relevant provisions of the Schedule.
If unrestrained, the arbitrator would have had to enter into a detailed analysis of these opposing views and, ultimately, would have to decide one way or the other. The arbitrator was not unrestrained however. Rather, he was bound by the FSCO appeal decision of Pilot and Ms. G. In that case, one of the grounds of appeal by the insurer was that the arbitrator allegedly erred in following the Desbiens approach (i.e., arriving at a numeric rating based upon mental or behavioural impairments and adding this number to other WPI ratings to arrive at an overall WPI rating of 55%). The Director's Delegate hearing the appeal upheld the original decision and explicitly approved of the methodology adopted by the hearing arbitrator. Until the appeal level of FSCO or the Ontario Divisional Court, the Court of Appeal or the Supreme Court of Canada says otherwise or the Schedule is amended in such a way as to overrule the interpretation that FSCO has given to this part of the Schedule, the Pilot and Ms. G. decision continues to govern the approach that the arbitrators take with respect to this issue, including the issues of this particular case.
Therefore, the arbitrator had to determine the appropriate percentage WPI impairment rating to attribute to Mr. Jaggernauth's mental or behavioural impairments and then combine that rating with the WPI rating determined earlier in this decision with respect to all of his other impairments.
c) Estimating a WPI Rating Based on Mental or Behavioural Impairments
Not surprisingly, since the 4th edition of the AMA Guides recommends against trying to convert descriptions of mental and behavioural impairments into percentage ratings of impairment, it does not provide any methodology for doing so. What method should be used then in determining a percentage impairment rating for mental and behavioural impairments?
Of course, without a mandated methodology it is difficult, if not impossible, to achieve the consistency that the Guides were intended to create. Furthermore, when choosing amongst possible methods of estimating a person's whole person impairment rating based upon mental or behavioural impairments, it will be difficult to establish that one approach is superior or more "in accordance with" the 4th edition of the Guides than any other method.
The arbitrator found, based upon Mr. Jaggernauth's mental or behavioural impairments, the level of impairment was moderate for all four spheres of function. But this then led to the question of how then ought this to be converted into a percentage whole person impairment rating?
d) Method(s) Adopted in This Case
Determination of a whole person impairment rating for mental or behavioural impairment is to be done "in accordance with" the 4th edition of the Guides, therefore the arbitrator agreed with the preponderance of case law that relies heavily upon the ratings that are actually referred to within the text of the 4th edition (i.e., Table 3 of Chapter 4 at page 142 and the ratings from the 2nd edition referred to at page 301 of the 4th edition). Again, following the cases that have gone before, in the arbitrator’s attempt to find impairment ratings for moderate impairments that would be common to both sources (pages 142 and 301), the arbitrator was left with a range of 25-29%.
In choosing a percent rating within the moderate range, the aribtrator had to consider the opinions of various assessors (including Drs. G, HR, SL and JP) and the GAF scores. Although the GAF scores did not, in and of themselves, yield a reliable rating of permanent impairment, they were consistent enough over time and across assessors to determine that: (1) Mr. Jaggernauth deteriorated after seeing Dr. G and remained more impaired than when seen by Dr. G; (2) while the level of impairment was not consistently severe enough to be considered "marked", the arbitrator found a moderate level of impairment in all four spheres of function, approaching a marked level of impairment in at least one sphere.