May 15, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Harb and Allstate
Decision Date: 2018-04-04
Heard Before: Adjudicator Charles Matheson
CATASTROPHIC IMPAIRMENT: adjudicator takes issue with IE physician ‘cherry picking’ assessment criteria; adjudicator determines that the assessment methodology set in the Guides is not a guideline but a straightforward process for assessment of claimants; adjudicator notes that the IE physician used a classification system foreign to the Schedule or the Act which imposed higher barriers upon the insured to achieve an impairment rating under the Guides, thus rendering the medical report as significantly flawed and useless to the trier of fact
Mr. Adel Harb was injured in a car accident on July 6, 2012 when his car was t-boned on his side of the vehicle. His vehicle was damaged to the point that he and the children had to exit the vehicle from the driver’s side. He took the children to the hospital right away, but didn’t experience any pain until later, as he was worried about his children’s and wife’s injuries. He went to see his doctor three days post-accident.
He applied for and SABs from Allstate payable under the Schedule, however, when the parties were unable to resolve their disputes through mediation Mr. Harb applied for arbitration at the FSCO.
- Did Mr. Harb sustain a catastrophic impairment within the meaning of the Schedule?
- Is Allstate liable to pay Mr. Harb a special award?
- Mr. Harb sustained a catastrophic impairment as a result of this accident.
- Allstate is not liable to pay Mr. Harb a special award.
Mid-Hearing Motion #1
Upon closing his case and prior to Allstate calling Dr. Sharma, an orthopaedic surgeon, Mr. Harb objected to the doctor taking the stand in order to testify.
Mr. Harb argues that the doctor did not assess Mr. Harb for a catastrophic impairment but opined on Mr. Harb’s IRB issue. This case is only about a catastrophic determination, under mental and behavioural issues. There is no relevance to Dr. Sharma’s testimony or in other words there is not a relationship with the doctor’s expertise and the issues in dispute. There is no probative value to his testimony, which may be prejudicial to Mr. Harb. Mr. Harb is unsure as to the intention of this witness’ testimony. Thus the evidence as it relates to the issue in dispute is unknown to the opposing party. Mr. Harb argues that all non-relevant evidence should be excluded.
Allstate argues that there is no prejudice in this instance and the fact that Mr. Harb does not know what the relevance of his evidence is, is not in itself prejudicial to Mr. Harb. Mr. Harb has the doctor’s reports and the diagnosis and the conclusions of the reports. Allstate argues that Mr. Harb suffers from a constellation of symptoms, as has been already evidenced in this Hearing, according to the Guides: chronic pain under Chapter 15, a closed head injury under Chapter 4, and not just the narrow issue of mental and behavioural issues under Chapter 14. Therefore, Allstate argues it has the right to bring this case to the attention of the trier of fact and present its case as it sees fit. Allstate argues that Mr. Harb best fits Criterion 7 and not Criterion 8.
Mr. Harb replies that Dr. Sharma did not have any expertise in chronic pain. This is subjective and goes to the credibility of Mr. Harb which cannot be allowed as the doctor did not ask the correct questions to Mr. Harb directly.
Allstate argues that Dr. Sharma is not being called for credibility issues alone, but he has tracked Mr. Harb’s physical condition, and Allstate wants to argue this case on that basis. Further Allstate suggests that it will not be asking for a whole person impairment (“WPI”) rating from the doctor, which has not been provided in the doctor’s report.
In the interest of fairness to Allstate, the witness is allowed to testify to his reports and the implications of those reports on Allstate’s perspective of this case. Allstate also has the right to present its best evidence for its best defense. This of course does not have an impact on Mr. Harb’s ability to present his case as he ultimately has the burden of proof of entitlement.
Mid-Hearing Motion #2
During the examination of Allstate’s expert, Dr. Sharma, counsel for Allstate and Dr. Sharma recognized that his final report was not the report that the doctor had dictated or submitted to the service provider known as “CVE”. Allstate moved that the Adjudicator allow the correct version of the report in as evidence despite the late service.
Allstate argued that under Rule 39.3 (c) of the Dispute Resolution Practice Code,the Adjudicator may allow the evidence due to extraordinary circumstances. This section reads as follows:
39.3 The hearing arbitrator will determine the relevance, materiality, and admissibility of evidence submitted at the hearing, but will not admit evidence at a hearing that:
(c) was not served on the opposing party in accordance with Rules 39.1 and 39.2, unless the hearing arbitrator is satisfied that extraordinary circumstances exist to justify an exception.
Allstate argues that the only explanation it or Dr. Sharma can offer is that the third party service provider, who polishes the doctor’s formatted reports and submits them to Allstate for dissemination, somehow and inexplicably changed vital sections of his report. Unfortunately, this has just been discovered and is out of the control of either party or the doctor. The doctor testified that he does not see the finished product prior to it being sent out to the parties. The doctor dictates the report, it is transcribed, and he then reviews it, makes any adjustments and then approves it for the proper formatting and the auto-signature to be applied. The doctor admitted it has not been his practice to review final reports in their final format in the past.
Mr. Harb argues that the Adjudicator should not allow the new report into evidence, for three reasons: first, the Code does not permit it, second, he has already objected to the doctor’s evidence, and third, it is not consistent with the principles of natural justice as he has been taken by surprise and/or ambushed. He is unable to properly cross-examine the witness. Mr. Harb has not been able to request the doctor’s notes and records in order to understand his evidence.
Allstate’s remedy to Mr. Harb’s concerns of prejudice is to adjourn the Hearing, for two weeks, in order for Mr. Harb to read any documents he may want to review in order for him to properly cross-examine the doctor.
Extraordinary circumstances are situations that appear as a surprise, and the surprise is out of the control of the parties. This is the case before me today. Essentially, CVE submitted a false report that negatively impacted on Mr. Harb, as Allstate relied on this report in determining benefits Mr. Harb may have been entitled to, to one degree or another. This is verified by Insurer’s counsel. This issue was discovered on the day, just hours prior to the commencement of this proceeding and was reported immediately thereafter.
For the reasons above the Adjudicator adjourned the Hearing, after the doctor’s examination-in-chief had been completed, for two weeks, in order for Mr. Harb to properly prepare his cross-examination.
At the time of the accident, Mr. Harb was married with two children, one and a half and three years old respectively, and was employed as a full-time hair dresser and manager of a hair salon. Mr. Harb and his family were residing in a two-bedroom apartment at the time of the accident. Mr. Harb had immigrated to Canada from Lebanon, in 2008 on a permanent basis, with his wife. Mr. Harb had a previous accident in 2009, and another accident in May 2016, which are not the subject of this arbitration. Mr. Harb testified that he had heart health issues since birth and underwent surgery in Lebanon to rectify his issues without further complications.
Mr. Harb testified that he equally shared all household duties and chores with his wife. Making meals, laundry and all other household chores are included in his assessment of the various duties he and his wife shared. Mr. Harb testified that he was an active parent with his children and participated in social events such as gathering of friends in the park for barbeques where he would play soccer with friends and his children. He would also participate in pick-up soccer games once or twice a week with his social circle of friends. Further on a weekly basis he would visit friends for dinner after work or have friends over for dinner, where he enjoyed preparing Lebanese dishes for the meal. He testified that he had a loving and affectionate relationship with both his wife and children; it was “fantastic”. He enjoyed a wide circle of friends who also had children who were the same age as his children. In particular his family befriended an elderly neighbour who spent a lot of time with his family until her death in 2016. Mr. Harb testified that he had not completed high school and had dropped out during grade 9, to help his parents financially as he has six other siblings.
Post-accident Mr. Harb testified that he went to his family doctor shortly after the accident, as he began to experience symptoms of headaches, vomiting, and shoulder and neck pain, along with swelling in his leg. He realized that his mood was more on the irritable side, as too much noise would trigger his anger. The frequency of the pain in his arms/shoulders and his knee/leg was constant. He began physiotherapy treatment in August 2012. He realized that the physical pain was worse in cold weather, so he began using a lot of Bengay to help with his symptoms. Mr. Harb testified that he tried chiropractic treatment but it was unpleasant. He stopped treatment as his back pain put him in the hospital for two weeks. He also tried massage therapy, but he was in too much pain to lay on his stomach for prolonged periods. However, acupuncture in September 2013 seemed to help with pain relief. The pain symptoms started to get worse as Mr. Harb continued to work after the accident, then the doctor gave him a two-week leave of absence. Mr. Harb’s family doctor then arranged for some MRIs and further x-rays and prescribed some anti-inflammatory and anti-depression drugs. The imaging occurred in December 2012 and showed some disc damage in the L4-L5 area with gaps in the discs and the MRI on the shoulders showed some nerve issues and damage, which was verified later in 2016. Mr. Harb was referred to Dr. Kapur, a neurologist, and Dr. McKee, an orthopedic surgeon, who diagnosed Mr. Harb with depression, chronic pain and a spinal disorder.
Mr. Harb stated that during his return to work attempts he experienced angry outbursts with his clients. He noticed he was having good and bad days both physically and emotionally. His shoulders and back were sore and when clients became demanding, he became argumentative. He was getting depressed because he felt that he had lost his life, he had no dreams and he started to dislike himself, as he felt that his family was falling behind financially on a daily basis. This was compounded by his marital issues as his wife was wanting to separate from him as his mood was fluctuating and the family finances were getting hard to manage. He acknowledges that his inappropriate anger outbursts were focused on or towards his wife if she asked him to simply help around the house. Mr. Harb stated that he was feeling more isolated as time went on, as he was in constant invisible pain throughout his whole body. His sleep patterns were being interrupted with flashbacks and nightmares, which impacted his eating habits. Mr. Harb suggested that as he spiralled into depression he slowly began to have motivation issues, in so far as he didn’t want to move out of bed, clean himself, cook or shave. His wife had to assist him with his personal hygiene as time went on.
Mr. Harb did return to work for about a month after the accident, on a part-time basis. Prior to the accident Mr. Harb stated he was working 50 to 60 hours per week. His duties were to wash, colour, cut and blow dry clients’ hair, but he found that he was taking too many breaks during and in between each client following the accident, which was putting pressure on his fellow employees. Mr. Harb verified that he was eventually suspended from his employment.
Mr. Harb stated that he no longer plays any sports, including soccer, and he no longer runs. He no longer enjoys large gatherings with friends in the park, or conversations with multiple friends. Mr. Harb suggests that he does not enjoy cooking anymore because of the pain he experiences while preparing meals. He no longer plays with the children in the park as he finds it difficult to supervise the children, let alone participate with them. Further, Mr. Harb testified that he has moved himself into the garage, as he has a TV there and he is able to turn down the lights, close the door for quiet, and he can smoke cigarettes and marijuana without disturbing the children and smelling up the rest of the house.
Mr. Harb mused that he is no longer the person that she married. Their relationship has been stressed since his money has run out after he lost his job. He believes that she is ignorant about the pain he is in and has no empathy. Conversations eventually break down with yelling and screaming. He states that she moves out of the house from time to time so she can get a break from him. Their intimacy routine has changed significantly, as he has lost interest. It hurts him to lie flat on his back. By November 2015 Mr. Harb’s wife told him she was ready for a divorce: then she left with the children and went back home to Lebanon, returning to Canada in July 2016 after her father passed away. Mr. Harb said that when he thinks of this situation, the low point in his life, he begins to cry uncontrollably. Mr. Harb states that he and his wife would not speak for days, but today, they continue to live together without interruption and continue to work on their relationship. Under cross-examination Mr. Harb stated that he did not obtain a licence to cut hair as required by Ontario law; he just worked as an apprentice under someone who had a licence.
Mr. Harb has a blood condition and osteoarthritis but elected not to take anti-inflammatory drugs due to his health concerns about how the medication would react with his heart. He agreed that there wasn’t any recorded documentation that reflects any doctor that raised any potential health risks or side effects when the anti-inflammatory drugs were prescribed. Mr. Harb maintained his belief that the pain in his side and his kidneys was as a result of the accident, in that his kidney stone, suffered in 2013, was a result of the drugs he was given as a result of the accident.
Mr. Harb maintained that laser therapy helped reduce the pain and swelling in his shoulders, and that physiotherapy helped to increase his function, in that he was able to interact with his family at a pain level of 5 out of 10, instead of 8 out of 10. Massage therapy also helps with his symptoms of swelling, which in turn gives him pain relief and more function on good days. Mr. Harb suggests that he is trying to reduce or stop taking narcotics for pain with the use of marijuana. He takes the narcotics as the swelling dictates. Mr. Harb stated he was not able to use marijuana regularly as he does not have the money to do so, but he has used narcotics and marijuana at the same time. Mr. Harb maintains that all his medications and treatments helped in certain degrees on a daily basis, and relieve his symptoms, which in turn help his functioning.
In regards to his application to Canada Pension Plan for benefits, Mr. Harb stated he applied for benefits in 2016, but was denied. He has not appealed that decision. In regards to the Ontario Disability Support Plan, Mr. Harb testified that he did not remember making an application for benefits; he only remembered getting support from the Trillium Program for his prescription drugs.
The Adjudicator reviewed the medical evidence.
Mr. Harb has a pre-catastrophic determination, and is diagnosed with pain disorder associated with both psychological and general medical issues and anxiety disorder with mixed anxiety and depressed mood. However, the doctor suggested that Mr. Harb was failing to adjust to his new situation. Mr. Harb scored within the moderate range in cognitive, emotional and physical or somatic scale. Emotionally Mr. Harb was feeling profoundly sad, without any suicidal ideations. She found that Mr. Harb was in the above average range of a normal population in depression. The doctor suggested that Mr. Harb, within her sessions, was pre-occupied with pain and when coupled with his depression, Mr. Harb was unable to function at the same level socially or recreationally as he did prior to the accident. The doctor made recommendations for further treatment from Allstate, which were eventually accepted.
A second report dated January 15, 2015 shows that the doctor had changed her diagnosis of Mr. Harb to a Major Depression Disorder and a Somatic Symptom Disorder as pain still remained a primary issue for him. Mr. Harb continued to manifest different physical symptoms, in that he had swelling of his arms and hands, narcotics were not being taken and his energy levels had fallen off. The doctor opined that Mr. Harb was no longer suffering from an adjustment disorder as the symptoms of depression were now severe. Further, Mr. Harb’s sleep disorder had worn him down to a state of chronic depression.
Mrs. Harb testified to the poor state of their marriage and home life.
Allstate’s OT concluded that Mr. Harb had recovered and no longer suffered a substantial inability to preform his pre-accident HH activities, with no further recommendations for further treatments. He noted that Mr. Harb had more bad days than good days as far as his daily activity levels went.
The psychologist who authored a catastrophic impairment assessment report under Criterion 8 of the Schedule dated February 26, 2016 testified. The report notes Mr. Harb’s decline from July 2013 to January 2015. Dr. Ricci also recognized that the second Psychiatrist Assessment Report of Allstate’s and the Psychiatric Assessment Report of Allstate’s assessor, were similar in that both doctors diagnosed Mr. Harb with Somatic Disorder, predominantly pain, persistent, and a persistent major depressive disorder separately within the summer of 2015. The doctor opined that Mr. Harb’s physical treatments brought him to a plateau and he maintained this level of function and pain. Mr. Harb was unable to sustain strategies for pain management because of his moods swings. Mr. Harb was severely depressed at this time.
Mr. Harb’s orthopaedic surgeon determined that his current back pain was due to degenerative changes and not due to the accident.
Mr. Harb argues that the test for a catastrophic impairment (“CAT”) will be met where an individual has suffered a Marked or Class 4 impairment in one of the following four areas of functioning: activities of daily living; social functioning; concentration; and adaption. In order to determine if an insured meets the CAT definition, an assessment must be conducted in accordance with the Guides with a finding of a Class 4 impairment (Marked) or Class 5 impairment (extreme). Further, the assessor is required to use the table in Chapter 14 of the Guides called “Classification of Impairments Due to Mental and Behavioural Disorder”.
Mr. Harb continues to argue that as the only mental health professional to assess Mr. Harb in an IE for Allstate, Dr. Scott, used the WSIB Scale. It is submitted that the Scale is not accepted for use in determining catastrophic impairment under the Schedule and it imposes a much more stringent test than the proper five-part classification set out in Chapter 14 of the Guides. Equally troubling, Dr. Scott failed to disclose anywhere in his report that he was using the more onerous and inappropriate Scale.
As a result, it is submitted that Dr. Scott’s evidence and report should be given little, or no, weight in light of the serious flaws with his report and his supporting evidence. It is Mr. Harb’s position that the evidence clearly points to a Class 4 impairment rating for three of the four spheres, but in particular, the sphere of “adaption” as supported by a balance of his healthcare.
Allstate argues that Mr. Harb and his wife have no credibility and their testimony should be disregarded. Mr. Harb’s testimony about not suffering from any impairments from the 2009 accident was brought into question and they pointed to the fact that Mr. Harb was suffering from chronic pain and depression as late as May 10, 2010. Allstate asserts that the question of causality of the impairments is now raised. If Mr. Harb was not completely symptom-free from the 2009 accident, as he claimed, then this affects the baseline that the doctors relied upon in arriving at their respective diagnoses. Therefore, if the diagnoses are flawed, then by extension the Classification ratings are also wrong. Thus, it was not the 2012 accident that caused his catastrophic impairments, if he is deemed to be catastrophically impaired.
Allstate argues that Mr. Harb should have been assessed under Criterion 7 and not Criterion 8, and relies in part on the Court of Appeals case of Aviva Canada Inc. v. Pastore, at paragraph 63, to arrive at this conclusion.
Allstate argues that surveillance has captured Mr. Harb shopping, driving and entering restaurants without assistance and incident, all of which demonstrates the abilities of a person who does not suffer from a Class 4 impairment in any sphere.
The Adjudicator does agree that there are a few anomalies in the historical records. However, Allstate did not present any evidence as to the meaning or veracity of the irregular statements made in regards to the post-2009 accident. The Adjudicator noted that the authors of the irregular statements did not testify. The Adjudicator note that Allstate also did not present any evidence about how a person who suffers from chronic pain cannot recover from it over time, or for that matter for what length of time chronic pain continues to exist in a person after being diagnosed with chronic pain. Allstate did not provide any evidence as the severity or frequency of the pain Mr. Harb was in after the 2009 accident, and that recovery from that pain was unlikely. The Adjudicator further noted that Dr. Scott did not refer to or discuss apportionment in support of Allstate’s assertions of one or more pre-existing condition(s).
In the Adjudicator’s view, causality is not in question as the symptoms which gave rise to Mr. Harb’s impairments are a direct result of the 2012 accident. The Adjudicator had no evidence to the contrary. Allstate did not call any witnesses to verify the reports or notes which Allstate suggested conflict with Mr. Harb’s statements. Therefore the Adjudicator was unable to ascertain the accuracy and veracity of these statements and what weight, if any, he should give to their meaning.
The Adjudicator was unconvinced that a slight variance in a doctor’s baseline ultimately nullifies a diagnosis. None of the doctors who testified agreed that their diagnoses were incorrect or that there needed to be changes made to their diagnoses because of a slight variance in their baseline.
The Adjudicator remained unconvinced that Dr. Scott’s position that the Guides are simply a guideline for him to follow is correct. The Adjudicator does agree that the Guides do not specify that the recommended steps within the Guides are mandatory. The Schedule mandates health practitioners to follow the Guide’s recommendations in order to arrive at the correct impairment rating or classification. This is a legal test, as noted in Pastore by the Court of Appeal in 2012; it is not a medical cherry picking exercise of what the doctor wants to do or likes to do. In this case Dr. Scott was asked to do a catastrophic assessment according to the Guides as mandated by the Schedule and not by using the WSIB’s Scale.
In the Adjudicator’s view, the doctor strayed outside of the Guides and used a classification system foreign to the Schedule or the Act, which imposed higher barriers upon Mr. Harb to achieve an impairment rating under the Guides, thus rendering Dr. Scott’s report as significantly flawed and useless to the trier of fact. The Adjudicator noted there is no evidence how the WSIB, which has an entirely different legislated purpose and mandate, arrived at its definitions or standards.
The Adjudicator took the position of Mr. Harb is the most persuasive when taking into consideration all the evidence in this case. The Adjudicator am unable to give any weight to Dr. Scott’s report or testimony, as Dr. Scott was the only other mental health professional to render a catastrophic impairment rating or assessment, and the Adjudicator remained unconvinced that his opinions and report are the most accurate in the circumstances. Therefore, for the above reasons, the Adjudicator found that Mr. Harb sustained a catastrophic impairment as a result of this accident, as he has suffered a Marked or Class 4 impairment in one of the four spheres, being Deterioration, or Decompensation in a Work or Work-like Setting.