In Martin v. Certas Home Insurance Co, the Divisional Court denied the Applicant’s appeal of the License Appeal Tribunal’s decision, which found that the Applicant was not catastrophically impaired as a result of her motor vehicle accident. The crux of the appeal, and of the underlying Tribunal ruling, was whether the Tribunal had misinterpreted the AMA Guides to the Evaluation of Permanent Impairment, 4th ed., and whether the Tribunal improperly “excluded” the evidence of an expert witness for the Applicant. The Divisional Court decision is an important ruling, confirming a well – established legal precedent that a CAT assessor must remain strictly within his or her field of expertise when rendering a CAT opinion.
The Applicant, Roxanne Martin, was injured when her all-terrain vehicle rolled over and pinned her. She sustained rotator cuff tears in both of her shoulders, requiring two surgeries, and later developed a chronic pain disorder. She applied for CAT impairment under Criteria 6, 7 and 8. The License Appeal Tribunal heard the CAT impairment issue, and found that she did not meet the requisite criteria.
Dr. Adriano Persi, a chiropractor who compiled the CAT executive summary on behalf of the Applicant, provided his own impairment ratings with respect to the Applicant’s narcotic abuse and psychiatric impairments. Dr. Tartaglia, a chiropractor, and Dr. Wismer, an orthopaedic surgeon, interviewed and diagnosed the Applicant’s physical injuries. But they deferred the impairment ratings to Dr. Persi instead of providing their own impairment ratings.
The Tribunal recognized that Dr. Persi was qualified to apply the AMA Guides to compile the impairment ratings. However, it also found that Dr. Persi’s expertise in chiropractic medicine did not extend to assessing drug addiction or psychiatric impairments. The Tribunal was also troubled by the fact that Dr. Persi did not meet the Applicant in person, and did not participate in the Applicant’s physical assessment. The hearing adjudicator therefore found Dr. Persi’s evidence to be unreliable and assigned it little weight. The Tribunal weighed the evidence on both sides, and preferred the opinions of the Respondent’s CAT assessors.
After the Tribunal affirmed its findings on Reconsideration, Ms. Martin appealed the decision to the Divisional Court. She argued that the Tribunal erred at law in interpreting section 45 of the Statutory Accident Benefits Schedule which provides the rules governing assessments for determining catastrophic impairment. Specifically, she argued that section 45 of the Schedule allowed medical professionals other than physicians to evaluate and analyze impairments in conjunction with the AMA Guides, and thus the Tribunal improperly excluded Dr. Persi’s opinion with respect to Criterion 8.
The Divisional Court rejected this argument and fully agreed with Tribunal’s findings. Writing for the panel, Justice LeMay held that while Dr. Persi was entitled to compile other assessors’ impairment ratings, he was not entitled to provide new opinions of his own where his diagnosis went beyond his own expertise. He wrote “It would be a strange outcome indeed if a chiropractor or, indeed, someone who is not versed in medicine at all, could provide psychological diagnoses as part of a CAT evaluation merely because they were qualified to apply the AMA Guides.”
The Divisional Court states decisively who may assist physicians and neuropsychologists in developing CAT impairment ratings, and what the scope of that assistance can be under the AMA Guides and the Schedule. The distinction is important when one considers the impact of Dr. Persi’s findings on the Applicant’s overall impairment ratings. Dr. Persi never met the Applicant in person , and he did not participate in the Applicant’s physical assessment. Dr. Persi’s narcotic abuse impairment rating comprised a large portion (29 percent) of the Applicant’s total score of 68 percent Whole Person Impairment rating under Criterion 6. Moreover, even the Applicant’s own psychiatrist, Dr. Pallandi, did not diagnose the Applicant with a substance abuse disorder.
The takeaway from the Court’s decision is that when choosing CAT assessors, the parties and their chosen experts must be mindful that any such chosen expert cannot go outside of their area of expertise. If they fail to do so, then the party tendering the expert’s evidence which is in breach of this “bright line” ruling runs the risk of having such evidence given little weight and losing on the CAT issue.
Jonathan White is the author of this blog and a member of the firm’s Catastrophic Loss practice group. If you have a question about this decision or a similar file, please contact Jonathan at 416-777-5204.
