It is also submitted by Ms. Keyes that the DAC has breached the Guidelines in failing to avail themselves of an assessment by an appropriate specialist such as a psychologist, neurologist or psychiatrist where there is “concern about a brain-injured claimant’s ability to exercise appropriate judgement without supervision.” It is also alleged that the report of the DAC reveals that they have gone beyond assessment to become advocates for a point of view. By way of example, Ms. Keyes alleges that the DAC misquotes reports of treating practitioners and without foundation accuses them of conflicts of interest.
There is little doubt that there are significant issues with the North York DAC assessment. The assessment was conducted on March 13, 2006. A report, signed by both assessors, was released on March 31, 2006 with attached Form 1 indicating that no attendant care was required. A second report appeared on April 13, 2006. The clinic coordinator, Dr. Rocco Guerriero, in a cover letter, indicates that the first report was issued in error and contained only the views of one assessor, as well as lacking an executive summary. Here is the salient text of Dr. Guerriero’s letter:
As part of our quality assurance measures, we recognized that this Attendant Care DAC Assessment report recently released was done so in an incomplete manner. The report that was released dated March 31, 2006, only included the Registered Nurse’s component (pages 1 to 34). It did not include the Occupational Therapist’s component by Lyn Cook. It also did not include the Executive Summary by Lyn Cook. We are releasing the corrected report.
We apologize to all parties for this oversight. This does not change the outcome of this Attendant Care DAC Assessment report.
It is clear that the cover letter underplays the extent of the problem with the DAC assessment reports. It might have been more accurate to describe the portion that was initially released as a partial draft. It is manifestly not the same report as was issued later and, rather than being incomplete in the sense of parts of the true report of the assessors being inadvertently not included, even those portions that are largely reproduced in the so called erratum report (the April 13th report) have been changed. To cite just one example, the description of an incident where Jessica Keyes found herself fighting a small fire in a trailer is quite different from one report to the other. In particular, the first description of the incident has Jessica Keyes in the trailer with a friend, who put a hat over the candle causing the fire. In the second description, it is said that Jessica Keyes is alone in the trailer. Both cannot be accurate, of course. The fact that both versions of the report purport to carry the signatures of both assessors calls into serious question whether or not the DAC complied with Part 4 of the Attendant Care DAC Assessment Guidelines.
The North York DAC report also contains significant errors. For example, despite the assertion to the contrary, Jessica Keyes’ pre-accident conditions are acknowledged by several of her treating personnel and other assessors. Dr. McKinnon, for example, deposed that when she first assessed Ms. Keyes in September 2004, she was aware of the diagnosis of ADHD. This is confirmed in her various reports predating the North York DAC. Indeed, it is simply not accurate to claim as the North York DAC assessors do, that most of Jessica Keyes’ treating practitioners ignore or downplay her pre-existing conditions. The documents are replete with comments on these pre-existing difficulties, in particular the diagnosed ADHD, but for many assessors the pre- existing diagnoses could well mean that Jessica Keyes would have even greater difficulties as a consequence of her brain injury.
By way of another example, whether this is an error, or an attempt to mislead, I will leave to the hearing arbitrator, however it is suggested in the report that Ms. Maria Hren who conducted an assessment on behalf of the Personal questioned the need for attendant care. This is simply not the case, as is evident from a fair reading of Ms. Hren’s July 9, 2004 report.
Returning to a consideration of the DAC assessment at issue here, it is significant in my view that the North York DAC expressly declined to consider whether or not Jessica Keyes’ noted vulnerabilities pre-accident have been exacerbated by the injuries sustained in the accident. This is at the heart of the controversy in this case and the failure of the North York DAC to address the “thin skull” issue, leaving it rather to the “court or arbitrator” to grapple with, is remarkable in the circumstances.
I also accept Ms. Keyes’ contention that the North York DAC failed to ensure that it had access to the appropriate assessment team in the circumstances contrary to the expectation of the Guidelines as set out earlier. In this regard, I also accept the contention of the Applicant that the North York DAC relied, to its detriment, too much on the report of Jessica Keyes and downplayed the input of her mother. In some instances, this caused them to get it entirely wrong. To cite just one example noted in the material, on page 30 of the second North York DAC report, it is noted that Jessica Keyes reported no major changes with her caloric intake since the motor vehicle accident. This is contrary to the well documented difficulties with diet that the Applicant has experienced since the accident.
The tone of the DAC is markedly partisan. Ms. Fitzhenry Bedard in particular is singled out with a suggestion that she is in a conflict because the Personal is funding the treatment she provides, the suggestion being that she is motivated to support more rather than less treatment. On the other hand, the assessments conducted by Aneez Virani and Dr. Kumchy are characterized as independent assessments as opposed to assessments requested by the Personal. The North York DAC team also critiques an earlier attendant care DAC which supported entitlement to the benefit, by the use of possibly confidential information somehow obtained from another DAC assessment.