Background:
Ms. Kalk was involved in an August 2016 motor vehicle collision where she sustained significant injuries, including a traumatic brain injury, multiple fractures and a collapsed lung. Her injuries required multiple surgeries, where she spent two months between hospitals.[1]
At the time of the collision, Ms. Kalk was a 24-year-old woman who had recently completed a three-year registered massage therapist program. She was also a very active individual who enjoyed rock climbing, sky diving and water sports with her friends and boyfriend.[2]
As a result, Ms. Kalk applied for a variety of benefits, which were denied by her insurer, Intact Insurance Company (“Intact”).
Issue:
The issue at this hearing was whether Ms. Kalk was catastrophically impaired under Criterion 7 of the Statutory Accident Benefits Schedule and entitled to additional corresponding benefits.
Analysis:
The adjudicator noted that to qualify as catastrophically impaired under Criterion 7, an applicant must establish that his or her combined physical and mental behavioural impairments produce a Whole Person Impairment (“WPI”) rating of 55% or more. This is achieved by combining the rating systems in Chapter 4 of the American Medical Association (“AMA”) Guides (4th edition) for physical impairments and Chapter 14 of the AMA Guides (6th edition) for mental and behavioural impairments.[3]
Ms. Kalk’s medical assessors concluded that she suffered a total WPI rating of 65%, while Intact’s medical assessors produced a total WPI rating of 44%. [4]
While both sides generally agreed on Ms. Kalk’s physical impairment ratings, there were differences in the WPI ratings for the nervous system under Chapter 4 of AMA Guides (4th edition). Ms. Kalk’s neuropsychologist expert, Dr. Solomon, and neurologist expert, Dr. Basile, each produced a 14% WPI rating for mental status impairment, while Intact’s neuropsychologist expert, Dr. Kiss, provided a WPI rating of 7%. Notably, additional nervous systems ratings were advanced by Dr. Basile in sleep and arousal, vertigo, and hearing. However, none of these ratings were addressed by Intact’s expert neurologist, Dr. Yahmad. [5]
In terms of mental and behaviour impairments under Chapter 14 of the AMA Guides (6th edition), Ms. Kalk’s psychiatrist expert, Dr. Patel, as well as Dr. Solomon, produced WPI ratings of 20% and 30% respectively. On the other hand, Dr. Kiss, provided a WPI rating of 10%.[6]
Findings:
The adjudicator dismissed Intact’s neurologist expert, Dr. Yahmad, who did not sufficiently examine Ms. Kalk and rate her impairments. For example, the adjudicator noted that Dr. Yahmad did not provide any impairment ratings for Ms. Kalk’s documented issues with sleep and arousal, vertigo and hearing. In addition, Dr. Yahmad did not offer any meaningful basis as to why he did not rate these areas.[7]
Further, the adjudicator accorded less weight to Dr. Yahmad’s conclusion that Ms. Kalk did not suffer from any neurocognitive changes because he admitted that his expertise was limited to neurology strictly from a physical perspective. In contrast, the adjudicator preferred the evidence of Dr. Basile, who specialized in head trauma and concussions. Dr. Basile opined that Ms. Kalk met the criteria for post-concussive syndrome associated with traumatic brain injury, which was also supported by several other medical specialists and health-care providers.[8] As such, the adjudicator accepted Dr. Basile’s ratings of 14% for mental status impairment, 4% for sleep and arousal and 4% for vertigo. [9]
With respect to mental and behavioural impairments under Chapter 14 of the AMA Guides (6th edition), the adjudicator agreed with Dr. Patel’s WPI rating of 20% because his rating generally fitted with the evidence and was fully supported in his report and testimony. On the other hand, the adjudicator found that Dr. Kiss’s report and justification for his 10% WPI rating was lacking because it did not directly challenge Dr. Patel’s or Dr. Solomon’s methods or scores.[10] Further, Dr. Kiss’ WPI rating for mental and behavioural impairments only provided a limited one-page summary of the Brief Psychiatric Rating Scale, Polygenic Risk Score, Psychiatric Impairment Rating Scale and Global Assessment of Functioning scores with little to no supporting evidence or breakdown. Lastly, Dr. Kiss contradicted himself several times during his analysis. For example, under the PIRS scale he rated Ms. Kalk’s impairment under the domain of activities of daily living as mild, but then rated the domain activities of daily living as moderate in his Criterion 8 analysis under the 4th edition of the AMA Guides.[11]
Conclusion:
The adjudicator found that Ms. Kalk had a 49% WPI rating for physical impairments and a 20% WPI rating for mental and behavioural impairments, which produced a combined WPI score of 59%. Thus, Ms. Kalk was deemed catastrophically impaired.[12]
Implications:
The above decision demonstrates that for catastrophic cases, the LAT has made it clear that properly qualified experts will lose credibility if they do not have sufficient expertise in the areas for which they are providing WPI rating. Moreover, if a WPI rating is in dispute, an expert will lose further credibility if they fail to provide a rating or provide a rating without any meaningful justification.
[1] Kalk v Intact Insurance Company, 2022 CanLII 45275 at para 1.
[2] Ibid at para 6.
[3] Ibid at para 13-14.
[4] Ibid at para 16.
[5] Ibid at para 19-21.
[6] Ibid at para 28.
[7] Ibid at para 26.
[8] Ibid at para 22-23.
[9] Ibid at para 27.
[10] Ibid at para 29.
[11] Ibid at para 30.
[12] Ibid at para 31-32.
