http://www.fairassociation.ca/wp-content/uploads/2013/02/Augello-and-Economical-Mutual-+-Arbitration-2008-12-18-FSCO-A07-001204.pdf

By way of context, it is no secret that there is a profound disagreement between many medical experts in the field of disability assessment as to the exact role that the AMA Guides play in determining catastrophic impairments under the Schedule. The prime dissident group rallying against the interpretation taken by the courts and arbitrators to date (the Desbiens approach) is centred around the position taken by Dr. Brigham, a prominent American advisor on disability issues.

Dr. Ameis, whose article on Impairment Evaluation is cited by Economical clearly falls into the Brigham camp. Indeed, Dr. Brigham is listed as a co-author of the article.

One of Dr. Brigham’s claims to fame is that he participated in the development of the original guidelines, and claims to have a special insight into what was intended by the committee which draughted the original guidelines. Dr. Ameis and Dr. Brigham have posited that the intention or original meaning of the provision was that no numeric rating could be given to psychological disorders, with the result that such disorders could not directly be added to the numerical physical rating to push the whole person impairment over the necessary threshold for catastrophic impairment.

It is clear from the Catastrophic report of the Custom Rehab team, headed by Dr. Rehan Dost, neurologist, that the Insurer’s experts were firmly in the Brigham/Ameis camp, finding a 20% whole person impairment, when, as they acknowledged in their own report, the amount under a Desbiens approach would have been 55%.

Indeed, Economical has acknowledged that should the Desbiens approach be found to be appropriate, Ms. Augello would meet the criteria for catastrophic impairment.

https://www5.fsco.gov.on.ca/AD/1870

…The question of neck spasm and indeed Ms. Levey’s pre-accident condition in general was taken up by Dr. Arthur Ameis in a report he wrote for Traders dated February 20, 1997. Dr. Ameis had some of the same materials that I had before me. For instance, he writes that the summary of the April 1995 report by Dr. Killian indicates habitual pre-morbid positioning and posturing. Having examined the report and the summary, I can find only a reference to “habitual positioning/posturing” but no reference to its being pre-morbid. He also states a strong position on the possible development of torticollis: “One can be certain that if the claimant was to develop torticollis acutely from the accident…it would have developed very rapidly…and definitely presenting at the time of the first medical visit.” Regarding that first medical visit, Dr. Ameis finds it of interest that “a 9-day latency occurs prior to the first post-trauma family doctor visit” (his emphasis — he does not refer to the fact that the emergency department suggested Ms. Levey follow up in seven days with her family doctor, nor that the accident happened on a Saturday evening and that Ms. Levey saw Dr. Liang on Monday, April 18 (1994). He refers to the mild nature of the accident, noting that the damage was $175 (the insurance appraisal sets out parts of $175, but it also shows that straightening of the automobile’s unibody structure required six hours of labour, and the total estimate before taxes comes to over $1,100) and that important secondary gains can be derived from such an “unexpected opportunity” to displace personal distress through misattribution onto the accident. He writes that, to Dr. Punthakee in March 1996, Ms. Levey was “exhibiting behaviours suggesting a spasmodic torticollis which apparently is related in time to the accident” (again, his emphasis).

…I find that Dr. Ameis’s report, in its constant suspicion of Ms. Levey, to be less than helpful. Furthermore, Dr. Paulseth and Dr. Oczkowski are both experts in the area of spasmodic torticollis. Accordingly, I prefer their evidence and find that the onset of spasmodic torticollis may be delayed after trauma. ….

http://canlii.ca/t/20zfs

[1]          Section 267.5(5) of the Insurance Act R.S.O. 1990, c.1.8 (“the Insurance Act”) relieves defendants from liability for pain and suffering damages unless the plaintiff has sustained permanent, serious impairment of an important physical, mental or psychological function.  By way of observation, I am uncertain as to what other functions might exist relating to the body.

[2]          Whiplash may well incorporate all three of these functions to different degrees but the root cause is a physical one emanating from soft tissue, physical injury to the neck and shoulder.

[3]          I think we have transcended the era when whiplash, due to the fact that it is often without objective findings, was equated with faking.

[4]          A whole specialty in medicine now exists dealing with physical medicine and rehabilitation.  This is sometimes referred to a s physiatry.  Experts in this field are relied upon by litigants often.  They do not rely upon the expert for treatment or rehab but rather to determine whether or not the expert believes pain exists.

[5]          Pain, and its degree of severity, are subjective and can exist without any objective finding.  Calling an expert to say that no objective finding equals no pain is on longer acceptable.  That same expert will often treat the pain that exists even though it is without objective findings.

[24]     I reject Dr. Clark’s evidence outright.  He was a physiatrist called by the defence.  His evidence was a classic example of a highly qualified doctor with a pre-existing bias, appearing as a hired gun to discredit Ms. Montero.

http://canlii.ca/t/1d4dz

[44] The impression I had of Dr. Richman was that he felt able to offer opinion and/or criticism in almost all areas involving the plaintiff whether he was qualified to do so or not.  Dr. Larry Waterman, Registered Psychologist, considered Dr. Richman to “go beyond his area of expertise” when he considered that the plaintiff’s pain complaints were not significant.  Although I accept the vast experience of Dr. Richman, I agree that in some areas he is not the best person to proffer opinions.  I have assessed his evidence with that caution.

http://www.fairassociation.ca/wp-content/uploads/2013/02/Rumak-and-Personal-Insurance-Special-Award-+-Arbitration-2004-10-07-FSCO-A01-000065.pdf

For the following reasons I find that in the period between when Personal terminated Mr. Rumak’s income replacement benefit and the DAC report, Personal acted unreasonably in withholding Mr. Rumak’s income replacement benefit.

Terminating an applicant’s income replacement benefits is a very serious matter with potentially serious consequences. An insurer contemplating the termination of income replacement benefits, or maintaining a denial, must act reasonably and consider all of the documentation before it. An insurer cannot pick and choose information that favours its own position while ignoring relevant information that favours the applicant.

I find that Personal had a paucity of medical evidence to support its termination of Mr. Rumak’s income replacement benefit and that it acted unreasonably in ignoring relevant information that favoured Mr. Rumak.

I find it unreasonable that Personal would choose to rely on Insurer’s Examinations in 1998 as a basis to terminate Mr. Rumak’s income replacement benefit in September 2000 and yet completely disregard Mr. Rumak’s medical evidence in 1998 because it was outdated.

(a)  Report of Dr. Shah

Dr. Shah’s report of his assessment on August 10 and 11, 1998 concludes:

At this time, Mr. Rumak is considered substantially psychologically disabled from returning to a part-time employment . However, following approximately eight cognitive-behaviour therapy sessions to help him cope with his anger, it will be advisable for him to return to employment concurrent with on-going therapy.

The psychological impairment is reducible and reversible.

An Independent Psychiatric Examination is considered essential to further clarify/modify diagnosis and treatment recommendations provided within this report.

Based on the results of this assessment, neuro-cognitive rehabilitation is not indicated. Mr. Rumak has made a remarkable cognitive recovery, which is likely to improve further as Mr. Rumak begins to resolve some of the psychological issues.

[emphasis added]

The first thing to note in the report is that Dr. Shah found Mr. Rumak was “substantially psychologically disabled” and had only opined that after “eight cognitive-behaviour therapy sessions … it will be advisable for him to return to employment concurrent with on-going therapy.” In short, this report recognizes that Mr. Rumak has cognitive-behavioural problems that interfere with his ability to work part-time and that even if he would return to working part-time he would need further treatment.

Personal did not terminate Mr. Rumak’s benefits in 1998 on the basis of this report. Neither did it seek a follow-up neuro-psychological assessment to confirm Dr. Shah’s findings that “Mr. Rumak has made a remarkable cognitive recovery.” I note this latter fact because Personal knew from the Catastrophic DAC report dated October 26, 1999 that Dr. Shah was not qualified to do a neuropsychological assessment on Mr. Rumak. [See note 5 below.]

Note 5: In the Catastrophic DAC report, which found Mr. Rumak had suffered a catastrophic impairment as a result of the car accident, Dr. H. Becker noted that “Dr. Shah is not registered by his college to undertake such neuropsychological assessments.”

In short, at the time that Personal terminated Mr. Rumak’s income replacement benefit in September 2000, Personal had clear notice that Dr. Shah’s neuropsychological assessment of Mr. Rumak in 1998 was not valid because of his lack of qualifications to do so. The only valid neuropsychological report that Personal had in 1998 was from Dr. Brooker, who had been recommended by Personal’s case manager to assess Mr. Rumak. In his report of February 18, 1998, six months before Dr. Shah’s report, Dr. Brooker states that, “There is no fundamental change from his report of December 19, 1997.”

find that Personal’s one-sided view in ignoring relevant information that supported Mr. Rumak’s claim in favour of its own clearly superficial and weak Insurer’s Medical to be unreasonable as basis to terminate Mr. Rumak’s income replacement benefit.

I do not agree with Personal’s submission that there were no substantial flaws that could easily be discerned from reading the DAC report. For the following reasons I find that there were obvious discrepancies, contradictions and omissions that should have given Personal pause for concern.

I find that in weighing all of the evidence and for the reasons given above, Personal, in choosing to ignore the obvious flaws in the Disability DAC, namely the superficiality, lack of neutrality, and the serious omission of the DAC not commenting on Dr. Ouchterlony’s report, acted unreasonably in relying on the DAC and in continuing to withhold Mr. Rumak’s benefits.

At the arbitration hearing Personal had little evidence to contradict Mr. Rumak’s testimony and his supporting evidence regarding his inability to sustain any employment. The one report that Personal relied upon, the Disability DAC report, proved to be substantially flawed.

It was very clear at the arbitration hearing on entitlement that the Disability DAC report, which Personal was relying to support its position, had substantive failures in respect of its accuracy, completeness and impartiality. As well, the DAC proved to have seriously failed in following the proper DAC procedures. These failures have all been articulated in my decision on entitlement dated November 5, 2003.

What is most significant is the fact that the DAC’s flaws, especially the procedural flaws, were brought out in examination-in-chief by Personal’s own witnesses, Dr. Bauer and Dr. Kim. This included the facts that there had been no consensus meeting by the DAC assessors, nor did the DAC assessors see or sign the consensus report. It was also under examination-in-chief that Dr. Bauer revealed that she provided a computer disk of her report which was incompatible with the computer of the AIM DAC facility so that her report would not be changed without her knowledge.

Dr. Bauer was the first to testify. Therefore, by the time Dr. Kim testified, Personal not only knew that there had been no consensus meeting at that DAC, but also that the AIM DAC facility in Whitby had a practice of changing the content of an assessor’s report without his or her knowledge.

Under examination-in-chief, Dr. Kim confirmed Dr. Bauer’s testimony regarding the lack of consensus meeting. It was also during Dr. Kim’s testimony that it was revealed that the DAC co-ordinator had changed Dr. Kim’s original assessment report in significant ways – including Dr. Kim’s conclusion. In my decision on entitlement, I found that these changes were more likely done without Dr. Kim’s knowledge.