IME

https://www5.fsco.gov.on.ca/AD/4201

Although he found that she continued to have symptoms substantially similar to complains identified in his earlier assessment, Dr. Best concluded that Ms. Burgess had made progress, and her ongoing complaints were likely not related (or at least no longer mainly related) to the accident. As a result, Dr. Best found that Ms. Burgess no longer suffered from a substantial inability to return to her pre-accident employment. On the basis of this follow-up assessment, Pembridge terminated Ms. Burgess’ entitlement to IRBs on the basis of disability in an OCF-9 dated December 11, 2008. 

Dr. Best’s conclusion that Ms. Burgess could return to her pre-accident employment is problematic on a number of fronts. First, he did not comment on the work Ms. Burgess had been doing and, on cross-examination, stated that he arrived at his conclusion on the understanding that Ms. Burgess was working as an accountant. He does not appear to have considered her work as owner/operator of Docktails. Dr. Best also testified that, according to his understanding, “substantial inability” means being able to do less than 50% of a job.[19] It was his opinion therefore that Ms. Burgess was capable of doing 51% or more of the tasks of an accountant. However, he could not say how much more than 51%. Dr. Best also testified that Ms. Burgess’ ongoing cognitive symptoms, fatigue and sleep disorder could be attributed to a number of factors not related to the accident, such as the stress of her job as an accountant and weight gained after stopping the drug topiramate following her first rhizotomy.[20] However, Dr. Best’s evidence was not clear regarding how much weight Ms. Burgess may have gained after she stopped taking topiramate.

I find that Dr. Best’s opinion that Ms. Burgess’ ongoing symptoms were likely no longer mainly related to the accident was, in large part, a reflection of his expectation that Ms. Burgess’ post-concussive symptoms should have resolved by the time of his second assessment. As stated in his December report, “the contribution from the motor vehicle accident itself is fading into the distant past, or should be at least.” [my emphasis] Dr. Best did admit on cross-examination that, in a minority of cases, post-concussive symptoms linger, and he agreed that this was possibly the case with Ms. Burgess, although he resisted that conclusion.

In summary, Pembridge terminated IRBs on the basis of Dr. Best’s follow-up assessment in December 2008. The assessment is fraught with problems, including a misapprehension of Ms. Burgess’ pre-accident employment and the test of disability, as well as what seemed to be a bias toward the conclusion that Ms. Burgess’ recovery from post-concussive syndrome should have followed the rule, rather than the exception.