Arbitrator applied appropriate principles when determining that insured was catastrophic.

October 22, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Decision Date: August 18, 2016

Heard Before: Adjudicator David Evans, Regulation: 403/96, Decision: Appeal, Final Decision, FSCO 4980.

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

1. The Arbitrator’s order of February 26, 2015, is confirmed and this appeal is dismissed.

REASONS FOR DECISION

In a decision dated February 26, 2015, Arbitrator Arbus found that Mr. Georgios Apostolidis is catastrophically impaired due to a pain disorder associated with both psychological factors and a general medical condition. The Arbitrator found this mental or behavioural disorder markedly impairs the activities of daily living of Mr. Apostolidis.

Wawanesa appeals this order on the basis that the Arbitrator failed to:

• maintain internal consistency, because he rejected and then accepted an expert’s report

• give sufficient reasons, especially for preferring that expert’s report over another

• separate physically-related pain complaints from those caused by mental disorder

• follow the accepted method for determining a marked impairment

For the reasons that follow Arbitrator Evans rejects those submissions and find that the Arbitrator’s reasons were:

• internally consistent, as the Arbitrator did not first reject and then accept the report

• sufficient, as his basis for accepting the report could be inferred

• adequate for separating pain and mental disorder, given the disorder’s nature

• informed by the relevant principles for determining the impairment, even though the accepted method was not explicitly laid out

Accordingly, the appeal is dismissed.

Mr. Apostolidis was hurt in a car accident on October 30, 2009. His injuries included three fractures requiring a couple of surgeries to his left ankle and leg. In addition to left leg pain, Mr. Apostolidis complained of pain in his neck, lower back and right shoulder, and breathing problems due to his nose, which had been lacerated and stitched. He was not able to return to his job as a cook. Wawanesa continues to pay IRBs, contingent on his attending English as a Second Language classes. Mr. Apostolidis and his wife, Albina Dimitrova, moved from a home to a smaller apartment because of the expense and because of Mr. Apostolidis’s inability to perform the tasks he had done before.

The Arbitrator referred to the uncontradicted evidence of Mr. Apostolidis and his wife that prior to the accident he had worked up to 60 hours per week at a restaurant, did much of the heavier work around the house, and engaged in the couple’s busy social life and happy marriage.  He was left in pain, unable to work at the restaurant, engage in intimacy with his wife, and depressed following the accident.

Mr. Apostolidis claimed that he was catastrophically impaired under the SABS–1996. He claimed that he suffered an impairment or combination of impairments that, in accordance with the ‘Guides’ resulted in a 55 per cent or more impairment of the whole person (WPI). He claimed that under clause he suffered a class 4 impairment due to mental or behavioural disorder (MBD).

In the result, the Arbitrator found that Mr. Apostolidis did not meet the whole-person impairment criteria but did meet the mental or behavioural disorder criteria under for one class 4 impairment regarding activities of daily living. The dispute centered on the expert reports of two psychiatrists, Dr. G, Mr. Apostolidis’s assessor, and Dr. H, a member of a multidisciplinary catastrophic assessment insurer’s examination. Dr. G found a class 4 impairment; Dr. H found none.

The Arbitrator briefly reviewed the expert reports. The Arbitrator reviewed the role of pain as part of a mental or behavioural disorder, as explained by Dr. G, and he cited Pastore v. Aviva Canada Inc., 2012 ONCA 642, and Mujku and State Farm Mutual Automobile Insurance Company (A10-002979, January 14, 2013) for taking a cumulative, multidisciplinary approach that includes pain from the general medical condition if connected with the diagnosed mental disorder.

The Arbitrator then considered whether the impairment of Mr. Apostolidis’s activities of daily living attain a marked level. noting that “Mr. Apostolidis’ evidence includes potentially all of the items mentioned above as being unable to be performed as a result of his injuries,” and found that “Dr. G’s summary clearly meets the ADL limitations sufficient to signify a Class 4 marked impairment.” The Arbitrator noted that Mr. Apostolidis’s lack of intimacy with his wife added to his stress, and he found the surveillance did not contradict Mr. Apostolidis’s evidence.

The Arbitrator reviewed the contrary opinion of Dr. H, who concluded that Mr. Apostolidis did not have any MBD that would meet the class 4 threshold as a result of the accident.

Wawanesa submits that the Arbitrator’s reasons were internally inconsistent because he implicitly rejected Dr. G’s opinion when determining the WPI did not meet the 55% threshold but then accepted his opinion when determining the MBD.  Wawanesa submits that, even though he did not specifically say so, the Arbitrator must have combined Mr. Apostolidis’s mental and behavioural disorder with his physical impairments when arriving at the Whole-Person Impairment of less than 55%. Second, Wawanesa submits that in combining (f) and (g) for the WPI, the Arbitrator implicitly rejected Dr. G’s opinion. Arbitrator Evans did not find this submission persauasvie.

Arbitrator Evans found that the Arbitrator did not combine (f) and (g) to arrive at a WPI figure, and found the Arbitrator simply made separate rulings for clauses (f) and (g) and never had to make a ruling about combining them. Therefore, there was no contradiction in his findings.

Wawanesa’s second major ground of appeal is that the Arbitrator failed to give sufficient reasons to permit appellate review, in particular by giving greater weight to Dr. G’s medical evidence over that of Dr. H without explanation, by referring to the problems Mr. Apostolidis had in attending English as a Second Language courses without tying them to the marked impairment, and by only assessing some activities of daily living.

Regarding the weight the Arbitrator gave to the respective expert reports, it would have been preferable for him to say outright why he preferred Dr. G’s over Dr. H’s. However, Arbitrator Evans found the Arbitrator did provide implicit reasons for preferring Dr. G’s evidence because the reason he preferred one report over another can be easily inferred in the context of this case. The context is the drastic opposition of the expert views of Mr. Apostolidis’s MBD impairments – class 4 versus none – and the Arbitrator’s own findings that Mr. Apostolidis did suffer impairments. The Arbitrator set out the two findings of the experts, alluded to the role pain plays in Mr. Apostolidis’s mental and behavioural issues as explained by Dr. G, and found that the insured does indeed suffer an MBD. Since he found that Mr. Apostolidis suffered impairments, as did Dr. G, it naturally follows that he preferred Dr. G’s view. If Dr. H had found at least some form of impairment, such as class 2 or 3, instead of no impairment at all, then more explanation by the Arbitrator would have been required. But where the Arbitrator was faced with such diametrically opposed views, Arbitrator Evans found his preference for Dr. G’s evidence, given his own finding that Mr. Apostolidis suffered an impairment due to the disorder, was reasoned.

Arbitrator Evans found that Wawanesa’s second point, namely the Arbitrator’s allusion to Mr. Apostolidis’ frustration with the English as a Second Language classes is simply obiter.

Regarding the third point, that the Arbitrator’s alleged failure to fully discuss the activities of daily living, Wawanesa submits that the Arbitrator did not explain why he only assessed some of the ADLs in determining whether Mr. Apostolidis suffered a marked impairment. Arbitrator Evans reviewed the transcripts and noted that the Arbitrator then went on to note the difficulties with walking, standing, sitting, sexual function, social life, yard work and long trips. The Arbitrator then discussed the evidence about the lack of intimacy causing stress, and then he found the surveillance did not contradict the evidence overall.

The Guides, on page 294, include a list of activities, including sexual function, sleep and social or recreational activity. Mr. Apostolidis’ evidence includes potentially all of the items mentioned above as being unable to be performed as a result of his injuries. It is clear that prior to the accident, Mr. Apostolidis performed all of these functions but, as a result of the accident, his activities in these areas are severely limited. Certainly, walking, standing, and sitting for any prolonged period have been severely restricted. Dr. G, in summarizing Mr. Apostolidis’ ADL limitations, enumerates all of the things that Mr. Apostolidis can no longer do, including walking, sexual functioning, social life (and lack thereof), and his inability to do any yard work, or go on long trips. Dr. G’s summary clearly meets the ADL limitations sufficient to signify a Class 4 marked impairment.

Wawanesa submits that in not reviewing all activities of daily living, the Arbitrator left an open question as to whether Mr. Apostolidis’ impairment was consistent with some useful functioning and so his impairment would be classified as only moderate or class 3. Wawanesa notes that Mr. Apostolidis continued to perform some ADLs after the accident.

However, this was essentially a finding of fact. The Arbitrator had before him evidence of the extent of Mr. Apostolidis’ impairment. He also accepted the opinion of Dr. G as set out in Dr. G’s summary that Mr. Apostolidis met the Class 4 criterion. The fact that the Arbitrator did not refer to every possible ADL in his decision does not mean that he failed to consider them, and to infer that those unmentioned did not rise to the level of a Class 4 impairment is conjectural. Furthermore, as the Guides point out, an assessor is to assess not just the number of activities that are limited, but the overall degree of restriction or combination of restrictions. An applicant may be able to perform some ADLs yet still be found to suffer a catastrophic impairment. Here, the choice was between markedly impaired or unimpaired, so a briefer analysis sufficed, given that Dr. G’s opinion prevailed.

Arbitrator Evans found no error in the Arbitrator’s consideration of the ADLs.

Wawanesa submits that the Arbitrator drew the wrong conclusions from the relevant legal principles and failed to apply them to the evidence. In reviewing the transcripts Arbitrator Evans found the correct principles were considered and that the Arbitrator was entitled to take a cumulative approach in light of the diagnosis of Dr. G, which he accepted, so he was not required to go through every impairment from walking through social life and sexual functioning to determine which part of the impairment was physical and which part was due to the disorder.

Wawanesa submits that while the Arbitrator set out evidence, he did not refer to the three-stage process for making the determination of a class 4 MBD impairment or make explicit findings related to them.

Chapter 14 of the Guides sets out a three-stage process for evaluating catastrophic impairment based on mental disorder using four categories of functional limitation and five levels of dysfunction. The first stage is diagnosis of any mental disorders, followed by the second stage where the impact on daily life is identified. The third stage is assessing the severity of limitations by assigning them into the four categories and determining their levels of impairment.

Thus, the dispute in this case is resolved by answering the following three questions:

1. Did the accident cause Mr. Apostolidis to suffer a mental or behavioural disorder?

2. If it did, what is the impact of mental or behavioural disorders on his daily life?

3. In view of the impact, what is the level of impairment?

While the Arbitrator did not specifically list these stages, his use of the principles from Pastore informed his decision. Thus, to paraphrase what the Court of Appeal said at para. 37 in Lawson, although the Arbitrator did not articulate the legal principles for which he had regard when making his determination that the respondent suffered a Class 4 marked impairment, it is clear from his reasons that his findings are based on the applicable legal principles.

Accordingly, the Arbitrator did follow the accepted method for determining that Mr. Apostolidis suffers a Class 4 impairment due to a mental or behavioural disorder.

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