I disagree with this assessment for a number of reasons. I find Dr. Gnam based his conclusion on limited and inaccurate information. Limited, because neither he nor Ms. Krushed interviewed any family members for insight into what she could, or would, actually do on her own on a daily basis, without cueing, unlike Dr. Levitt, who interviewed Ms. M.G.’s mother for collateral information. I also find it inaccurate because I find Ms. Krushed’s report failed to consider the effect of pain, diminished capacity and lack of motivation on the effectiveness and sustainability of Ms. M.G.’s ADLs.
In relying on Ms. Krushed’s inaccurate report, I find Dr. Gnam’s opinion was based on misleading information.
Secondly, Dr. Gnam failed to consider, compare and differentiate the criteria for moderate, marked and severe impairment before arriving at his conclusion. His statement, that mental impairment that appears to “preclude some but not all useful functioning” [emphasis added] is consistent with Moderate impairment, is not accurate.
I do not believe Dr. Gnam’s opinion to be either correct or reasonable for two reasons. The first is that Ms. M.G. testified, and I find, that even simple volunteer efforts such as calling out bingo numbers or helping visiting family members at the hospital were overwhelming for her, and she quickly became fatigued, confused, irritable and unable to cope. I find the facts indicate Ms. M.G. has not been able to “maintain some restricted work-like stresses or activities” as Dr. Gnam claims.
The second reason I reject Dr. Gnam’s opinion is that, even if he were not wrong on the facts, his application of the impairment rating system set out in theGuides is not correct in this case. His conclusion, that Ms. M.G.’s impairment is Moderate because she is “not completely unable to engage and maintain some restricted work-like stresses and activities,” applies the wrong test. The test for Moderate impairment, or even Marked impairment, is not, as he suggests, “complete inability.”
I find Dr. Gnam failed to consider and compare all of the relevant impairment levels and correctly apply them to the facts and his conclusion was flawed as a result.
As can be seen from the chart above, the only assessment of physical impairments that falls short in this case is that of the Custom Rehab team. I did not find their assessment and rating to be as reasonable or as persuasive as those of Dr. Garner or the Drs. Becker for a number of reasons. The first reason is that I do not find the Custom Rehab team had a realistic or accurate grasp of Ms. M.G.’s actual functional abilities for her activities of daily living. As discussed above, I did not find Ms. Krushed’s extrapolations from her observations of Ms. M.G.’s abilities to complete daily living tasks and engage in social activities to be realistic or reasonable. Consequently, to the extent Dr. Mathoo and Dr. Dost relied on Ms. Krushed’s faulty statements and conclusions, their reports are similarly inadequate.
The second reason I prefer the evidence of Kaplan and Kaplan and Omega over that of Custom Rehab, is that I find the Custom Rehab team’s approach resulted in their under-rating of Ms. M.G.’s physical impairments. There appear to be a number of reasons for this. One is that the team members did not consult with each other, or even exchange their reports; each simply conducted his or her own assessment and prepared a report, and the team leader, Dr. Mathoo, included their findings in his Executive Summary. I find this lack of communication impeded the exercise of clinical judgment or interpretive analysis by team members – essential components of assessing the impact of impairments on daily functioning.
The effect of this compartmentalized approach can be seen in how the Custom Rehab team members accounted, or rather, failed to account, for the effects of pain on daily functioning. …
Although Ms. M.G. complied with her obligations, and despite requests from her counsel, Economical did not reinstate Ms. M.G.’s IRBs until just before the start of this hearing, two and a half years after stopping them. Economical did not provide any explanation for the delay. I find both the delay and the lack of any explanation to be completely unacceptable. As it is well-established that an insurer cannot avoid a special award simply by paying an overdue benefit just before the issue is to be adjudicated, I find Economical’s conduct merits a special award in this case.
Read: http://www.torontosun.com/2013/01/18/catastrophic-impairment-cases-continue-to-vex-insurers