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Dr. Hope provided two reports.  In his first, he refused to provide a rating because he concluded that, “in the absence of valid evidence of a significant psychological impairment that could be attributed directly to the accident in question, I give no rating”.  He came to that conclusion because he determined that the Applicant was over-reporting her symptoms and that the psychometric testing results that he had were not valid.  I give his opinion no weight for the following reasons.

I do not share Dr. Hope’s view that there is “no valid evidence of a significant psychological impairment”.  I find such evidence in that of Dr. Liao, Dr. Kiraly, Mr. Beedling and Dr. Robinson, and in the medical history set out in the reports of Dr. Robinson and Dr. Mills as well as in the clinical notes and records of those treating the Applicant.  I reject the opinion of Dr. Hope that the Applicant is exaggerating her symptoms and could not be rated.  He does not dispute that she suffers mental behavioural impairments.  His information on her history was incomplete.  He did not know that the Applicant had suffered other recent personal losses due to other motor vehicle accidents.  Dr. Robinson did know about these losses and indicated that these were complicating factors impacting on her emotional and mental outlook.  Further, when Dr. Hope reviewed in his testimony under cross-examination the questions that he believed had been answered in a manner that indicated exaggeration, the answers that he recorded during the Applicant’s testing were consistent with her evidence.  She could not truthfully have answered them any other way.  I find the more probable explanation for the answers in the testing that is consistent with the other evidence I have is the explanation given by Dr. Robinson, that is, that the answers were indicative of an individual overwhelmed by the issues facing her.

I was also troubled by Dr. Hope’s reference in his report to the Applicant making a workplace injury claim even though her injury had completely healed prior to the accident and forms no part of the issues in this case.  None of the other psychologists regarded this as significant in the psychological assessment.  When questioned, Dr. Hope indicated that, based on this claim experience, her answers were influenced by the potential for gain.  He had no more information than that she had made the claim and the injury was resolved.  His opinion that she was probably exaggerating is not supported by his speculation on this claim. I also note that his work in providing opinions is almost exclusively for insurers.  In all the circumstances and given the other evidence I have, I find that his opinion and his refusal to provide a rating are not consistent with the rest of the evidence and were not appropriate in the circumstances.

Because Dr. Hope regarded the Applicant’s test results as invalid he refused to provide a rating.  There is no evidence that Dr. Khaled did anything else to identify a Mental Behavioural Disorder rating for her, despite the opinion of Dr. Robinson expressed on three different occasions as to the impairments suffered by the Applicant and the evidence of significant impediment to her function identified by Ms. Javasky.

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I do not accept the ratings arrived at by Dr. Khaled for Optimum.  He was an advocate for strict compliance with the wording of the Guides but failed to apply the same rigor to the work of his own team.  Dr. Khaled insisted that the proper and only credible way to arrive at the ratings was to have the ratings done by the medical professionals who examined the Applicant for the purpose of the CAT determination.  Dr. Adam and Dr. Zakzanis testified that they could take a diagnosis from another expert and provide a valid rating under the Guides without seeing the patient. Further, as noted above, the Guides specifically provide in Section 2.2, that “any knowledgeable person can compare the clinical findings with the Guides’ criteria and determine whether or not the impairment estimates reflect those criteria.”  Dr. Gallimore is experienced and qualified to more than satisfy the requirement of a knowledgeable person to determine the appropriate ratings based on the clinical findings and reports of the experts who in fact assessed the Applicant.

In my view, Dr. Khaled gave Optimum the outcome it wanted.  I am satisfied on the evidence that he deliberately closed his eyes to relevant information that he should have taken into account.  The Guides are specific that the history of medical treatment of the patient is an essential element in the assessment and rating.  Dr. Khaled included Dr. Robinson’s reports in his review of the records but when there is a specific issue related to the diagnosis of Mental and Behavioural Disorder requiring ongoing treatment, Dr. Khaled simply ignores the evidence and relies solely on Dr. Hope’s refusal to accept the test results as valid.  In cross-examination Dr. Khaled indicated that he focused on the assessments that were done for the CAT determination.  He gave little if any weight to the past history. 

I find that his handling of the evidence as to the Applicant’s mental behavioural impairments ignored the evidence of Dr. Robinson and Dr. Mills as well as that of the Occupational Therapist Ms. Javasky.  In his testimony Dr. Khaled used every opportunity to advocate for his approach to the interpretation of the Guides which I find is not supported by the Guides themselves. 

Also, I am entitled to draw adverse inferences from the failure of a party to bring forward evidence that was in the power of the party to produce.  Optimum had lots of notice that mental and behavioural disorders were a factor in the Applicant’s medical history and that she had been diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood by its own assessor.  Dr. Gallimore flagged the desirability of bringing a psychiatrist onto the assessment team.  Optimum objected strenuously to Dr. Kiraly’s report, that of the only psychiatrist, but it could have retained its own in order to adjust this claim fairly.  Alternatively, Dr. Zakzanis was capable of undertaking the mental behavioural disorder assessment and he explained in the stand the analysis which would assess the functionality of the Applicant in terms of what was attributable to the brain injury and what was attributable to the mental and behavioural impairment.  Dr. Robinson likely could have as well.  By failing to take the step of securing that impairment rating, I am entitled, on the basis of all the evidence, to draw the conclusion that Optimum did not seek a further assessment because it knew it likely would support a rating sufficient to bring the Applicant over the 55% whole person impairment or alternatively of a Marked Class 4 Impairment.  In a tort action, there is no obligation on an adverse party to fill in a gap, if it exists, in an opposing party’s case.  The onus lies on the Applicant to prove her case both in tort and in accident benefits, but, in accident benefits, there is an obligation of good faith on the part of the insurer. Optimum, in its adversarial approach to the claim for catastrophic impairment here, has failed to discharge that duty.

I therefore find that the Applicant has met her onus on the balance of probabilities to prove that she suffered catastrophic impairment as a result of the accident in accordance with the Schedule.

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Where I find fault with Optimum was the decision, whether by it or by its adjuster Pinnacle, to ignore the reports of Dr. Robinson and to use Dr. Hope instead.  They used medical professionals who almost exclusively do work for insurers and there was clear evidence, on the part of Dr. Hope and in the advocacy of Dr. Khaled, that the assessment ratings did not assess the Applicant in accordance with its obligations to adjust the claim in good faith and in accordance with the Guides.  There has not, however, been a delay in payments that would support a special award.