Applicant v. Wawanesa Mutual Insurance Company, 2017 CanLII 62155

Date: 2017-07-14

Tribunal File Number: 16-000004/AABS

Case Number: 16-000004 v Wawanesa Mutual Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Applicant

Applicant

And

Wawanesa Mutual Insurance Company

Respondent

DECISION

Adjudicator: Susan Sapin

Appearances: Supriya Sharma, Counsel for the Applicant

Stephen Macaulay, Counsel for the Respondent

Heard in person on: August 24 and 25, 2016

1The applicant brings an application for a determination that her accident injuries resulted in impairments that meet the statutory threshold for a catastrophic impairment, as defined in the Statutory Accident Benefits Schedule effective September 1, 2010 pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c. I.8.

Background:

1On December 10, 2013, the applicant was returning on foot from a shopping plaza near her home when she crossed at an intersection and was struck by the side mirror of a left-turning city bus and knocked to the ground. Ambulance attendants found her sitting up against the bus, alert and oriented, with a cut on her forehead and a bruise on her left temple. She was taken to hospital. Hospital records indicate she complained of mouth pain and pain in her right elbow, right hip and right leg area. Her left eye was badly bruised and swollen shut. She received eighteen stitches for the cut on her forehead. A CT scan of the head and X-rays of the neck, spine, chest and right elbow showed mild to moderate degenerative disc disease but no fractures. She was sent home on a head injury routine. She returned the next day by ambulance due to vomiting and feeling unwell. After an abdominal ultrasound with normal results she was sent home.

2After the accident, the applicant received physiotherapy (including five sessions of vestibular therapy for balance issues), chiropractic treatment, speech language therapy, assistance from a social worker, and the services of a personal support worker for 8 hours a day until March 2014. She received medication for anxiety and depression for a time but discontinued them. She did not receive any psychological or psychiatric treatment,¹ despite significant ongoing psychological distress and recommendations for cognitive behavioural and dialectical behavioural therapy from several practitioners.²

3There is no dispute that the applicant sustained soft tissue injuries and a mild traumatic brain injury (TBI), or concussion in the accident. She suffered from post-concussive symptoms including balance and speech difficulty as well as severe depression, anxiety and a post-traumatic stress disorder afterwards. There is also no dispute that the applicant experienced the accident as emotionally traumatic, and that she has complained consistently of significant ongoing cognitive and memory impairment, lack of motivation, personality change, inability to adapt to change or stress, extreme anxiety related to leaving her home on her own, crossing the street, riding in a vehicle and being around traffic in general. Where the parties disagree, and dramatically so, is the degree to which the applicant continues to suffer disabling impairments more than two years after the accident.

4The applicant firmly believes her symptoms are due to a serious brain injury sustained in the accident that has resulted in permanent functional limitations to the extent that her impairments meet the catastrophic threshold under the Schedule.

5Wawanesa submits there is no objective medical evidence of serious brain injury or lasting aftereffects and the applicant’s accident-related impairments should have resolved after two years and are not severe enough to meet the catastrophic threshold. In their submission, the applicant’s presentation and subjective reports about her health and functional abilities both before and after the accident are neither reliable nor credible, and their claimed severity is exaggerated and not explained or supported by any objective medical evidence.

6In September 2015, the applicant applied to Wawanesa for a determination that her accident-related impairments met the definition of a catastrophic impairment under the Schedule. A finding of catastrophic impairment would allow the applicant to apply for enhanced medical, rehabilitation, attendant care and housekeeping benefits beyond two years after the accident from Wawanesa, provided she meets the eligibility criteria for these benefits.

7The parties each conducted multidisciplinary assessments to determine whether the applicant’s impairments were catastrophic. The assessments took place in January and July, 2016, with widely varying conclusions. The parties were unable to resolve their disputes and the applicant applied to the Licence Appeal Tribunal.

8Having considered the evidence as a whole, I find the applicant suffers from impairments that meet the catastrophic threshold under s. 2(1.2)(g) of the Schedule.

Issues:

9Did the applicant sustain an impairment or combination of impairments under s.2(1.2)(f) of the Schedule that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”) results in 55 per cent or more impairment of the whole person?

10Did the applicant sustain a Class 4 (marked) or Class 5 (extreme) mental or behavioural impairment in accordance with the Guides, that qualifies as a catastrophic impairment under s. 2(1.2)(g) of the Schedule?

Result:

11The applicant sustained a catastrophic impairment under s. 2(1.2) (g) of the Schedule because she has a marked impairment in the functional category known as “adaptation.

Overview:

Impairment Categories

12Under the Schedule, “impairment means a loss or abnormality of a psychological, physiological or anatomical structure or function.”³ Impairments are assessed to determine if they are catastrophic two years after the accident, to ensure the impairments have stabilised and are likely to be permanent.

13The Schedule sets out several categories of catastrophic impairment. An insured person need only prove entitlement in one category to be deemed catastrophic. The applicant submits that she meets the criteria under two categories, described in ss. 2(1.2)(f) and (g).

14Under paragraph (f) a catastrophic impairment is “an impairment or combination of impairments that, in accordance with the [Guides] results in 55 per cent or more impairment of the whole person,” or “WPI – whole person impairment.” Impairments under paragraph (f) include physical, neurological and psychological impairments. Each individual impairment is first assessed and rated under the chapter in the Guides dedicated to the particular body system being assessed - for example, musculoskeletal, nervous, respiratory, cardiovascular, visual; or impairments due to mental or behavioural disorders, which in this decision I shall refer to interchangeably as psychological impairments. The severity of the impairment is then expressed as a percentage impairment of the whole person, or “% WPI.” The percentages are then “combined” (rather than simply added together) according to an algorithm in the Guides to arrive at an overall WPI. A combined WPI of 55% is a catastrophic impairment.

15The applicant submits her combined physical, neurological and psychological impairments exceed the 55% threshold. She submits the psychological component of her impairments is equivalent to a WPI of 49%. That figure, combined with the WPI ratings of either 24% or 17% Omega assigned to the applicant’s physical and neurological impairments, yields a total combined WPI of either 61% or 58%, both of which exceed the catastrophic threshold of 55%. Wawanesa submits the applicant has no rateable physical or neurological impairments two years post-accident, and her psychological impairments on their own are equivalent to a WPI of only 15%. Her total WPI under paragraph (f) is therefore 15% and does not meet the catastrophic threshold.

16The applicant also submits she independently meets the test for catastrophic impairment under paragraph (g), which deals with psychological impairments. These are assessed under Chapter 14 of the Guides. Unlike other impairments, their severity is not initially measured as a percentage WPI. Instead, psychological impairments are classified according to how seriously they affect a person’s useful daily functioning in four broad and overlapping activity categories, or “domains,” using word descriptors in Chapter 14.

17The following Table from Chapter 14 describes the four functional domains, the classes of impairment and the verbal rating criteria for each class:

Area or aspect of functioning	Class 1: No impairment	Class 2: Mild impairment	Class 3: Moderate impairment	Class 4: Marked impairment	Class 5: Extreme impairment
Activities of daily living Social functioning Concentration Adaption	No impairment is noted	Impairment levels are compatible with most useful functioning	Impairment levels are compatible with some, but not all, useful functioning	Impairment levels significantly impede useful functioning	Impairment levels preclude useful functioning

18Under paragraph (g), a catastrophic impairment is a marked (Class 4) or extreme (Class 5) psychological impairment that affects useful function in any one of the four domains. The word descriptors can also be converted to a percentage WPI using a table in the Guides.⁴

19The applicant submits that she meets the catastrophic threshold under paragraph (g) on the basis of a marked psychological impairment in the adaptation domain equivalent to a 49% WPI. Wawanesa submits her psychological impairment in that domain is moderate, equivalent to 15% WPI, and therefore not catastrophic.

20I find the applicant has suffered a catastrophic impairment because she independently meets the criteria for a marked psychological impairment in the category of adaptation under paragraph (g) using the verbal descriptors from the Chapter 14 table above. Since I have found the applicant meets the catastrophic definition under (g), I do not need to determine whether she meets the 55% catastrophic threshold under paragraph (f).

21However, because the parties’ converted psychological WPI ratings of 15% vs. 49% are so far apart and represent the bottom of the moderate range vs. the top of the marked range, I do need to be able to evaluate the accuracy and reliability of their ratings. The parties’ different approaches to assigning WPI ratings are factors that affect the rating. For this reason, I have discussed this below at paragraphs 75 – 83.

Determining Impairment in Adaptation:

22The Guides define impairment in adaptation as the repeated failure to adapt to stressful circumstances, in the face of which “the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate or have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.” By definition, impairment in adaptation affects the ability to function across all activity domains. Regarding activities of daily living in particular, their quality is judged by their independence, appropriateness, effectiveness and sustainability.⁵

23According to the Guides, a marked impairment is one that significantly impedes useful functioning in the four domains. A moderate impairment is one where “impairment levels . . . are compatible with some, but not all, useful functioning.”

24Based on the evidence submitted and the testimony of the applicant and of the parties’ key witnesses, Dr. L. Davidson, psychologist/neuropsychologist for the applicant and Dr. Sharma, psychiatrist, for Wawanesa, I find the applicant suffered a marked impairment in adaption that was directly caused by the accident. I find the applicant’s function is significantly impeded and she has been unable to reclaim the independence she enjoyed before the accident. Her anxiety about being on her own, and in particular her fear of leaving her home unaccompanied except for short distances and her perception of her disability are severely restricting. I find the applicant was a vulnerable individual because of previous psychological issues and brain injuries, and, because of this, she experienced the accident as severely emotionally traumatic. For these reasons her recovery from the accident would not resolve within the “normal” or expected two – year recovery period from a concussion. Despite the credibility concerns raised by Wawanesa, I find the evidence as a whole supports this conclusion.

The applicant’s evidence:

25The applicant firmly believes her normal activities of daily living and her ability to complete tasks and maintain social and familial relationships are significantly impeded because she sustained a serious head injury when the mirror on the bus hit her on the head and knocked her to the ground. With the exception of Dr. A. Lawrence, a psychologist, I find the consensus of medical evidence is that the applicant’s impairments result from psychological issues (anxiety, depression and post-traumatic stress disorder (PTSD), and not a brain impairment. Regardless of origin, however, I find the applicant’s account of her impairments to be for the most part credible, and there is sufficient evidence on a balance of probabilities to support the conclusion that her impairment in the adaptation domain is marked.

26The applicant attributes a number of symptoms directly to the head injury. These include significant long and short term memory loss, cognitive deficits that prevent her from processing information or making decisions as quickly or as well as she could before the accident, and a lack of motivation to initiate tasks. She is easily confused and overstimulated, which causes her to withdraw from activity to a basement room with a lock on the door where she crochets, plays solitaire on her phone and listens to music or television. She is uninterested in and unwilling to initiate tasks. She does not look after her personal hygiene or the household. She does not perform home maintenance chores she completed easily and independently before the accident unless prompted by and/or assisted by her husband. She does not cook and relies on prepared or frozen foods she can heat in the microwave, as she is afraid she will forget to turn off the stove.

27The applicant testified she rarely leaves home other than to very local destinations, to pick up milk for example, and only on foot, due to traffic anxiety, fear that she will be hit, or fear of getting lost, and diminished interest. She says she is unsafe to drive because she cannot turn her neck due to pain and her processing speed is too slow. She has only driven on 3 or 4 occasions, and only locally. She is completely dependent on her husband and relies on him for everything. She accompanies her husband to get groceries or to the reserve for cigarettes but is an anxious passenger. Testimony from the applicant’s husband JM echoed that of his wife. He also testified that she has alienated friends, family and neighbours because of a new tendency to speak her mind without thinking. JM also testified that at one point he had to give up his job to look after his wife and drive her to medical appointments, although he has since returned to work.

28The applicant further submits that she has undergone a complete personality change from an active, social, independent, capable “tom-boy” type of person to one who is reclusive and withdrawn, and who has developed a new interest in more feminine things such as makeup. She stated she does not know who she is anymore.

29The applicant submits her life now is significantly different from the busy and independent life she led before the accident, when she was psychologically healthy, had a stable, mutually supportive 30-year marriage, raised four children, including one with significant health issues, and led an active life that included tennis and golf with her husband, daily long walks, hiking, camping trips with family, babysitting grandchildren, weekly bible study with a neighbour, looking for work and taking courses through a job centre, pursuing a genealogy project at the local library, managing the household finances and studying to become a tax preparer and mortgage broker using her husband’s textbooks. She completed housework and home maintenance chores including lawn cutting and snow shovelling when her husband’s job as a long distance truck driver took him away from home.

30Regarding memory loss, which she told numerous assessors was particularly distressing, the applicant submits that after the accident, she was unable to remember that her mother had died three months previously; the birth of her four (grown) children; her marriage to her current husband; and “all of 2013.” She submits that most of what she knows about her life before and after the accident, she was told by her husband because she herself could not remember.

31The applicant’s conviction that her difficulties are the result of accident-related brain injury caused her to go so far as to seek a referral from her family doctor to Dale Brain Injury Services, an organisation that provides services and support to persons affected by an acquired brain injury (ABI). She and her husband received counselling there about connecting with community services providers, support strategies and ABI education in March 2015. By that time, she was no longer receiving medical or rehabilitation benefits from Wawanesa. She attends a monthly brain injury support group with her husband. She testified that she has gained insight from this group about behaviour typical of persons with acquired brain injuries and learned there that the head trauma she sustained in the accident is the cause of her memory loss. The support group has provided her with coping strategies, such as putting up task reminders and keeping lists.

32In support of her claim that her cognitive losses and behavioural changes result from an accident-related brain injury, the applicant relies on a report dated August 12, 2015, by Dr. A Lawrence, a consulting psychologist at Dale who met with her and husband twice on May 26 and June 24, 2015. In his report, Dr. Lawrence referred to a “recent” diagnosis of mild traumatic brain injury (TBI) by Dr. R. Vitelli, a neuropsychologist. (Vitelli April 28, 2014,). Dr. Lawrence went on to report:

In the course of my work with [the applicant] I have observed that she exhibits deficits in cognitive abilities relating to executive functioning that are characteristic of many individuals with an acquired brain injury. This refers to the ability to process information accurately and to plan, organize and execute actions needed to solve complex problems and to make decisions. Deficits in executive function also typically result in problems with initiation, attention and concentration and with motivation. She is particularly concerned about deficits in her short-term memory processes that have a significant impact on her day to day functioning and her adaptive behaviour. Compounded by a high level of anxiety, leads to panic and inability to make decisions and engage in effective problem-solving.

33I find Dr. Lawrence’s report reflects what the applicant believes, namely that her impairment is caused by a brain injury. The report is also consistent with the observations of other assessors such as Dr. Davidson and J. Wong, an occupational therapist who observed the applicant’s anxiety, near panic and decompensation when asked to engage in certain tasks during a two-day assessment. However, I place little weight on this opinion for a number of reasons. First, it does not address the severity of any impairment or the criteria for catastrophic psychological impairment, and so is unhelpful in that regard. Second, it is inconsistent with the consensus of medical opinion that her impairments two years after the accident are mainly due not to a brain injury but to psychological, emotional, “psychogenic,” or “non-organic” causes and the concussion itself was mild and played a minor role in her ongoing symptoms of memory, cognitive and functional impairment. Those opinions were based in part on the ambulance call report that stated the applicant was conscious and alert at the scene of the accident, with a GCS reading of 15/15, and that the applicant recalled events pre-and post-incident. GCS scores of 15/15 were repeated at the hospital.⁶ The third reason I give little weight to Dr. Lawrence’s opinion is that he met with the applicant on only two occasions and did not rely on the results of any neuropsychological tests. Fourth, neither he nor Dr. Vitelli had any pre-accident medical records or history and took the applicant at her word that she had no previous psychological distress, which was not the case. Fifth, virtually every assessor, regardless of discipline and including the applicant’s own medical experts, have observed that the applicant’s reported cognitive symptoms are out of proportion to the mechanism of the accident and the head injury received. Finally, at least three occupational therapists (OT) who conducted in-home assessments between June 2014 and July 2016 observed that the applicant’s subjective reports of impairment were not in keeping with her demonstrated functional abilities.⁷ This raises the issue of whether the applicant’s evidence should be believed.

Credibility

34Wawanesa raised a number of concerns with respect to the applicant’s credibility. It submits that these credibility issues call into question the extent of the applicant’s impairment and do not support a finding that she is catastrophically impaired. I disagree.

35I accept that certain aspects of the applicant’s testimony and what she told examiners about her life before the accident are inconsistent, contradicted by other evidence and not always believable. However, I find there is evidence to show that her symptom exaggeration is not conscious, her perceived impairment is real, distressing and debilitating, and she was a vulnerable individual for whom the accident was disproportionately traumatic. I find that evidence more persuasive.

36Wawanesa’s concerns can be summarized within the following two broad categories:

a. Exaggeration by the applicant of her cognitive impairment and memory loss; and

b. Discrepancies related to the applicant’s pre-accident medical, social and psychological history.

Exaggeration of cognitive impairment and memory loss

37Wawanesa submits that the applicant’s complaints of cognitive impairment and memory loss were inconsistent with a brain injury and there was no medical explanation for them. That, and evidence of symptom exaggeration indicate her subjective claims about her functional abilities post-accident should not be believed, and for that reason she has not met her case.

38Wawanesa submits that most of the assessors, including the applicant’s own, agree that her reported cognitive impairment was more severe and pervasive than would be anticipated based on her medical file, her account of the accident, and what was measured on the comprehensive neuropsychological testing conducted by Dr. Davidson. However, Dr. Davidson felt the applicant performed well on objective measures of validity designed to ensure that test results are reliable and accurate. She concluded there was “. . . no indication of exaggeration or feigning/malingering.” She concluded there was a strong psychological component to the applicant’s cognitive presentation, but that her presentation was genuine.

39Dr. A. Syed, a psychologist/neuropsychologist who assessed the applicant on behalf of Wawanesa to determine if she met the test for non-earner benefits nine months after the accident, came to the same conclusion. Dr. Syed also used validity measures during her assessment. Like Dr. Davidson, Dr. Syed conducted a more comprehensive assessment than did Dr. C. West, Evolve’s neuropsychological assessor, or Dr. Sharma, Evolve’s psychiatric assessor. I find Dr. Syed’s opinion more persuasive for that reason. Dr. Syed concluded that “The findings reveal that overall [the applicant] may have attempted to over represent the extent and degree of any difficulties she may be experiencing. The severity is not deemed to be such that the results of this evaluation are rendered un-interpretable; rather this presentation in my opinion is indicative of a cry for help, versus intentional feigning.”⁸ She opined that the applicant’s self-limiting behaviour and symptom exaggeration stemmed from a deeply held conviction that she was disabled and a desire for her psychological distress to be taken seriously. I find this explanation affords evidence of the degree and authenticity of the emotional distress and helplessness felt by the applicant, and I disagree with Wawanesa’s submission that the applicant’s subjective reports should be rejected as not credible.

40I find the opinions of Dr. West and Dr. Sharma less persuasive. Dr. West administered less comprehensive screening tests only, reporting that on specific measures used to identify malingering, (validity measures), the applicant “endorsed a high frequency of symptoms and impairment that is highly atypical of individuals who have genuine psychiatric or cognitive disorders . . . this suggests a high likelihood of potential feigning/symptom exaggeration.” Even so, he noted that this was “not necessarily deliberate,” but unlike Dr. Syed or Dr. Davidson, he offered no alternative explanation.

41Dr. Sharma also conducted screening measures only, and despite not formally testing for malingering himself, testified that “everything short of malingering” was mentioned in the medical records. He also noted that the applicant was seeking disability before the accident.⁹ He explained that he rated the applicant’s psychological impairment as moderate in adaptation at the low end of the moderate range, or 15%, because of inconsistencies, credibility, conscious or unconscious exaggeration, and because he felt she was able to do more than she reported to him based on the occupational therapy assessments of H. Visscher and J. Wong and the results of Dr. Davidson’s neuropsychological testing that revealed only mild cognitive impairment attributable to concussion. The 15% rating also reflected Dr. Sharma’s belief that the applicant’s reported difficulties were not all related to the accident. Unlike Dr. Syed and Dr. Davidson, Dr. Sharma offered no alternative explanation for the severity and persistence of the applicant’s subjective complaints, and I find he simply did not believe they were genuine.

42Wawanesa challenged the applicant’s belief that her cognitive abilities deteriorated after the accident because of her concussion. The applicant testified that before the accident, she was studying to become a tax preparer and mortgage broker, using her husband’s textbooks. Wawanesa submitted this was not plausible, given that she readily admitted to Dr. Vitelli and others that she struggled at school due to a probable undiagnosed learning disability, that math was a “huge” problem for her, ¹⁰ that she had difficulty following written instructions (although she liked to read) and that she left school after Grade 8 as a result. In addition, Dr. Davidson found only mild cognitive impairment due to the concussion itself on testing, and Dr. Vitelli determined the applicant’s cognitive function, below average in certain areas, was likely at pre-accident levels. Both, however, agreed with other assessors that the applicant’s diminished function after the accident was due to her legitimate emotional reaction to the accident.

43I do not agree with Wawanesa’s submission that the applicant’s unrealistic ambition or perception of her abilities before the accident is the same as a deliberate attempt to misrepresent her pre-accident life. I note that the applicant did not claim to be enrolled in any formal mortgage broker or tax preparation course.

44Wawanesa submitted that credibility also came up as a concern regarding the applicant’s inconsistent complaints of short and long term memory loss, where the applicant could apparently remember some things but not others. Assessors for both sides could not reconcile this with the applicant’s mild concussion, and felt that examples such as her inability to remember her mother’s death three months before the accident, or the birth of any of her four children, or “all of 2013,” to be inconsistent with and unexplained by a head injury and, in fact, outright “bizarre.”¹¹

45Dr. West, for example, reported that the applicant told him in November 2015 she was “largely unable to remember anything since the accident and that what she does recall is information that she has been told by her husband,” a statement she also made at the hearing. Dr. West notes,

“As an example, she notes that she does not recall how many siblings she has for sure and she notes that she has no memories of her childhood, nor does she recall how many times she has been married or how long she has been married. However, during other points of the assessment she was able to clearly and accurately recall information from decades ago without cueing or without the aid of anyone else, and thus the reported memory deficits are highly inconsistent with memory that she demonstrated during the current assessment. “

46The applicant displayed similar behaviour in her testimony as well, where she would be very clear and detailed on certain subjects – her husband’s continental shifts, for example – and yet claim to be unable to recall other events one would think would be memorable, such as the items noted by Dr. West, above. On cross-examination, the applicant explained that she was more likely to remember things that were memorable or important to her, such as details of her jobs. She testified that her memory was “patchy,” and that it “comes and goes,” and was slowly improving with time.

47I accept the applicant’s evidence that her inability to remember facts or events she though she ought to be able to remember on her own was distressing to her. I acknowledge that the nature of her memory complaints is not consistent with the available evidence about the concussion, given the lack of evidence of any significant loss of consciousness and limited cognitive impairment as measured on testing. However, I reject Wawanesa’s submission that there was therefore no medical explanation, suggesting that the applicant was deliberately untruthful. I find this view too cursory. I find the opinion of Dr. Davidson that after the accident, the applicant not only withdrew from activities that provoked anxiety or panic or were over-stimulating, but also used withdrawal and avoidance to cope with distressing thoughts or emotions, offers a realistic explanation for the applicant’s impaired memory and is more compelling.

48I find the evidence establishes there is a clear connection between emotional trauma and memory loss. I find the opinions of Drs. Davidson, Robinson and Syed acknowledge that the applicant experienced the accident as emotionally traumatic, the more so because her own elderly father was killed when he was struck by a transit bus several years earlier. Dr. Bartolucci, a psychiatrist who assessed the applicant shortly after the accident opined that emotional trauma could cause memory loss, and Dr. Sharma agreed on cross-examination that an extreme psychological response to trauma could cause memory loss. He felt, however, that the applicant’s psychological symptoms had improved when he saw her, although he acknowledged that some symptoms of post-traumatic stress disorder were still present. As discussed below at paragraphs 67 – 73, I find Dr. Sharma underestimated the effect of the applicant’s psychological symptoms on her ability to cope under stress.

The applicant’s pre-accident medical, social and psychological history

49Wawanesa’s challenge to the applicant’s credibility was also based on the applicant’s assertions that she was physically and mentally healthy and independent in her daily activities with no functional difficulties in the two or three years before the accident.

50Wawanesa submits that the applicant was not credible because she claimed to be a strong, self-sufficient person with no psychological issues before the accident, despite evidence to the contrary. It is well documented and noted by assessors for Omega and Evolve that the applicant had a complicated pre-accident medical history that included anoxia as a baby,¹² fibromyalgia, bilateral carpal tunnel syndrome, bilateral knee arthritis, rheumatoid arthritis, borderline diabetes, gout, asthma, a seizure disorder in childhood, at least two concussions (one with loss of consciousness when she was ten years old and one due to domestic abuse that caused deafness in her right ear), and right shoulder tendonitis from a work injury in 2011 – in short, a challenging life. All of which the applicant readily acknowledged. The applicant worked as a building superintendent with her husband several years before the accident and at unskilled jobs such as industrial cleaning. She has not worked since the shoulder injury. The applicant testified she had learned to cope well with her health conditions and rarely took any medication other than the occasional Advil, as she did not believe in it. Except for the shoulder injury, there is no evidence she sought any significant medical treatment in the two years before the accident. The decoded OHIP summary from January 1, 2007 to the date of the accident in December 2013 shows only seven medical visits. Since the accident, however, she has been prescribed Cymbalta for anxiety, depression and PTSD symptoms, which she could not tolerate, and Elavil, a similar medication.

51Wawanesa pointed to inconsistencies in the applicant’s evidence that contradict her assertion that she had no psychological difficulties before the accident. The most significant involved an incident on March 25, 2013, eight months before the accident, when the applicant went to CAMH (Canadian Association of Mental Health) complaining of stress due to her inability to work due to a shoulder injury and, according to the report of the Crisis Worker, to discuss ongoing problems with her husband. The report notes that the applicant was “slightly unkempt and she had on several layers of long coats,” and that “she stated that her mother in law and husband were withholding food from her and that she felt powerless to do anything. [She] stated that her husband was physically abusive towards her in the past and that she had lost several of her teeth due to his abuse. She also indicated she had left him in August 2010 for a period of 3 months . . . her husband was not giving her any money… she had been in and out of shelters several times before and ‘the staff were probably sick of me’ . . . She was trapped with her husband and she was treated like a child.”

52The applicant testified that she went to CAMH because she was under stress from having to look after JM and drive him to medical appointments after he had a slip and fall accident and was unable to work. JM testified he was not aware his wife had gone to CAMH and was unable to explain his wife’s statements to the counsellor. He felt they were untrue. Both acknowledged they encountered stressful times and marital difficulties in the past, but that they had managed to overcome them with counselling.

53I do not agree with Wawanesa that the evidence about the visit to CAMH suggests the applicant attempted to deliberately misrepresent her pre-accident psychological functioning or marital situation. In any event, I find that even if she did have some difficulty coping with stresses before the accident, it does not diminish her emotional reaction after the accident to what was a significant traumatic physical and psychological event, or the fact that she suffered a marked psychological impairment in the adaptation domain as a result of the accident. The same goes for Dr. Sharma’s testimony that the applicant was not functioning “normally” before the accident. That may well be the case. But the question to be decided, is what is the applicant’s level of impairment after the accident.

Credibility Conclusion

54Regarding the issue of credibility, I find the preponderance of evidence rules out malingering or deliberately conscious feigning. I agree with Dr. Syed that the applicant’s exaggeration of symptoms is unconscious. I find she genuinely believes the things she says, even though some of them, particularly as regards her pre-accident abilities, are unrealistic. All of the assessors agree that this was not a minor accident physically or psychologically, that the applicant experienced it as emotionally traumatic, and that she was diagnosed with severe major depression, anxiety and post-traumatic stress disorder requiring medication. For the first few months after the accident, she required attendant care and the services of a social worker, speech pathologist and personal support worker. In a photograph taken a few days after the accident, the applicant is barely recognizable due to facial swelling. I find a particularly traumatizing factor was that the applicant’s elderly father had been killed by a city bus several years earlier.¹³

55Although Dr. Sharma felt the applicant’s PTSD symptoms had improved by the time he saw her, and she acknowledged some improvement, he noted they were still present. I agree with Dr. Davidson that the applicant’s anxiety and panic return full force when exposed to certain stressors, and I find this was confirmed by the two-day OT assessment carried out by J. Wong, discussed beginning at paragraph 59.

56The question is whether these disorders affect the applicant’s adaptive functioning to the marked degree required to qualify as a catastrophic impairment. I find that they do.

Evidence of Impairment

57In support of her claim that she suffered a marked impairment in the adaptation domain, the applicant relies on the opinions of the assessment team from Omega Medical Associates (“Omega”), in particular that of Dr. Davidson, as well as the observations of Ms. J. Wong, an occupational therapist (OT) who conducted a two-day in-home and situational assessment of the applicant in June 2016.

58As an OT, Ms. Wong did not proffer an opinion on catastrophic impairment, but her observations of the applicant over two days of situational assessment constitute a valuable source of objective information about the applicant’s functional abilities. Both Dr. Sharma and Dr. Davidson relied on Ms. Wong’s report in forming their opinion about the applicant’s level of impairment, although they interpreted it differently. I find Ms. Wong’s report supports the applicant’s position that her psychological impairments significantly impede useful function in the adaptation domain because it supports her claim that she becomes overwhelmed by anxiety when faced with unexpected situations, particularly outside her home or familiar surroundings.

59Ms. Wong prepared a very well-designed two-day assessment to evaluate the applicant’s function in the four functional domains – activities of daily living, social functioning, concentration, persistence and pace, and adaptation, focussing on activities the applicant had identified as challenging as a result of the accident. Ms. Wong’s was the only OT report to specifically target those areas, and I find it superior to the assessments of Ms. Visscher and other OT’s for that reason. It included a clinical interview, functional testing, community access as well as cognitive and psychosocial assessment over five hours on the first day. The second day took place at the Omega facility but the applicant terminated it early because she found the tasks required overwhelming and she had not slept well the night before due to the accumulated stress of the previous day’s activities.

60On Day 1, Ms. Wong verbally assigned a number of tasks to the applicant and told her to do what she needed to do to remember them without being told. These were to complete various housekeeping chores while baking muffins by a certain time. The applicant’s executive function was assessed by requiring her to organize and plan a surprise dinner event for her daughter’s birthday with a guest list, detailed menu and list of ingredients. To test the applicant’s ability to adapt, Ms. Wong introduced unexpected changes, such as listing supplies that needed replenishing, finding the items in flyers, and an errand to No Frills to compare prices, which was later changed to Walmart only (significant because this would involve crossing the intersection where the accident occurred.) The applicant refused to go to Walmart.

61Ms. Wong reported that the applicant performed all of the assigned tasks in her home methodically and competently; in other words, successfully.

Evidence of marked impairment in adaptation:

62Problems arose with the outing to No Frills. The applicant left a note for her husband so he would know where she was, her usual practice when going out to run an errand. She refused to cross at the accident intersection, but crossed on her own at the other intersection with Ms. Wong’s encouragement. The destination was then switched from No Frills to Walmart. Once in the Walmart, Ms. Wong “lingered” behind so the applicant could not see her, so that she could assess her behavioural conduct related to her reported fear of going shopping on her own, other than to No Frills for emergency purchases. When the applicant noticed Ms. Wong’s absence, she left the store and when Ms. Wong joined her outside, told her she did not like being in the store alone. They went back in and Ms. Wong ‘disappeared’ a second time. Ms. Wong reported that the applicant did not behave in any way that suggested the exercise should stop, as she did persist with the activity when “coaxed or encouraged.” In fact, however, the applicant had texted her husband to come and pick her up from Walmart, four minutes after she got to the store, and likely the first time Ms. Wong “disappeared.”

63When the women arrived back at the applicant’s home, Ms. Wong described the applicant’s husband as “livid,” demanding why the applicant had consented to go to Walmart “knowing what it would do to her and more directed to this examiner why she was brought to Walmart.” He expressed concerns that this type of assessment may have set his wife’s progress back affecting her recovery and the efforts he had made in supporting her since the accident. Ms. Wong was eventually able to resume the assessment and conduct a closing interview, observing that the applicant was composed in mood, courteous and friendly. However, when the applicant was asked to assess her fatigue, pain and stress ratings at the beginning and end of the assessment, she reported that she had started the assessment apprehensive about the assessment and about having a stranger in her home, and that she felt very stressed, completely overwhelmed, in pain and with a headache. She reported panicking in Walmart and being very stressed around the busy traffic. Ms. Wong also observed that the applicant had chain-smoked at every opportunity, which the applicant indicated was a way of dealing with her anxieties.

64Day 2 of the assessment took place at the Omega facility, a three-hour drive for the applicant and her husband. It was to be a situational assessment similar to the day before. The applicant reported feeling completely exhausted because she had not slept the night before due to nightmares about traffic and neck, back and right shoulder pain. She had a headache and wore sunglasses due to light sensitivity. She had been sick to her stomach since the trip to Walmart the day before. The applicant explained that she felt overwhelmed from the previous day because she normally could only manage one activity in a day, not the several she had undertaken at Ms. Wong’s request.

65The applicant agreed to participate in the first assessment activity on Day 2, which consisted of a set of rather complicated written and verbal instructions about work tasks to complete as the superintendent of an apartment building, a job she had held years earlier. Ms. Wong observed that the applicant was rude and surly at first, but then showed readiness and receptivity to starting, and listened attentively. However, she then “sat still for a very brief moment and appeared to stiffen up and clenching her jaws stated in an angry or pressured tone that she has had enough and would not tolerate any more of this. The instructions were confusing to follow and the demands were overwhelming . . . and with all that she was feeling she did not want to try to attempt any form of it.” She then stood up and walked out. That effectively terminated Day 2 of the assessment.

66I find the following observations made by Ms. Wong are consistent with marked impairment in adaption, in particular regarding the applicants ability to function independently outside her home:

Based on these assessments it was noted that [the applicant] is avoidant of pre-accident engagement in many activities and appears to have simplified her life such that she does not initiate tasks that she finds to be anxiety provoking and overwhelming. She demonstrated that she will withdraw from activities and becomes easily overwhelmed and confused if she is presented with a problem or a change. [She] demonstrated substantial difficulty managing stresses as evidenced in the community access part of this evaluation as well as her presentation the following day for the situational testing.”

In an addendum report dated August 22, 2016, rebutting the occupational therapy report of Ms. Visscher, Ms. Wong stated that it was her clinical and professional impression that the applicant, “. . . demonstrated marked functional limitations to otherwise step outside her comfort zone. She was dependent going out accompanied with her husband outside her comfort zone. Otherwise she essentially isolated herself in her home. Her mental-behavioural status was remarkably drastic in the community in that it deteriorated under the stressors such that it impressed as significantly impeding useful functioning.”

67On the basis of her own neuropsychological assessment including comprehensive neuropsychological testing, review of the medical file, the applicant’s subjective reports, and Ms. Wong’s OT report, Dr. Davidson concluded that the applicant demonstrated substantial withdrawal and exacerbation of symptomatology in the face of stresses, consistent with a marked impairment in adaptation, which reflected impairment levels that significantly impede useful functioning. I find the assessments of Dr. Davidson and Ms. Wong compelling.

68Dr. Sharma was critical of Dr. Davidson’s opinion and felt it was unbalanced, because Dr. Davidson only took into account the stress the applicant reported regarding the outing to Walmart, the deterioration in her emotional state after the first day, and the events of Day 2. Dr. Sharma felt that the applicant had handled the first part of the assessment in her own home quite well – juggling the muffins, the housework, the list-making and the menu planning. He felt it supported his opinion that the applicant had no impairments in the domains of activities of daily living and concentration, persistence and pace and moderate impairments in social functioning and adaptation. Accordingly, he maintained the overall WPI rating for psychological impairment of 15%.

69I disagree with Dr. Sharma’s conclusion and find it underrates the applicant’s impairment. Ms. Wong specifically noted in her report that the tasks on Day 1 were accomplished with coaxing, encouragement and her constant presence, of which more was required the more stressful the activity became for the applicant. I find the applicant did her best to persevere despite her anxiety and fear, and that doing so took an emotional toll on her and exacerbated anxiety, fatigue, pain and a feeling of being overwhelmed, such that she was unable to participate in the assessment the second day. I find this to be evidence of a failure to adapt to stress. I find Ms. Wong’s assessment underlines the applicant’s lack of initiation and independence regarding activities of daily living that require her to leave home. I find this meets the definition of a marked impairment as one that significantly impedes useful functioning.

70I prefer the marked rating assigned by Dr. Davidson to Dr. Sharma’s moderate rating for this domain because I found it to be more comprehensive and consistent with the observations of Ms. Wong. In his original report, Dr. Sharma provided very little basis for his rating of moderate impairment in adaptation. He considered this category only in the context of work, stating that the applicant was unemployed at the time of the accident and had not been in any work-like situation since the accident. I find this interpretation to be too narrow, as it is clear from the Guides that adaption is relevant to all spheres of function in daily living, which is what Ms. Wong’s assessment was designed to measure, and not just work-like settings.

71Although a finding of marked impairment in the adaptation domain is sufficient to meet the catastrophic threshold under s. 2(1.2)(g) of the Schedule, I will briefly review the evidence regarding the three remaining functional domains.

Evidence of impairment in the remaining functional domains.

72Regarding the ratings for the domains of activities of daily living and concentration, persistence and pace, I prefer Dr. Davidson’s ratings over those of Dr. Sharma.

73I find Dr. Sharma’s rating of no impairment in the activities of daily living domain was equally narrow and underrates the applicant’s impairment, because he focussed on very basic and limited activities such as hygiene, dressing, standing, sitting and stairs, for which he felt the applicant required no supervision. This does not reflect the complexity or full spectrum of activities included in this category, such as sleep, travel, sexual function, and social, recreational and household activities. As the Guides point out under the description of activities of daily living, what is assessed is not simply the number of activities that are restricted, but the overall degree of the restrictions. And particularly, “For example, a person who can cook and clean might be considered to have a marked restriction of daily activities, if . . . she were too fearful to leave the home to shop or go to the physician’s office.”¹⁴ This is in fact the case with the applicant. Dr. Sharma’s rating also does not consider the quality of the activity or independence. Based on the report of Ms. Wong and the applicant’s testimony that she can and does leave the home on foot to limited local destinations, I find the moderate rating assigned by Omega in this category, defined as impairment that is compatible with some, but not all useful functioning is more accurate than a rating of no impairment.

74Regarding the socialization category, the parties agreed that the appropriate rating was moderate. I have nothing to add to that.

75Finally, regarding the category of concentration, persistence and pace, I prefer Omega’s rating of moderate to the no impairment rating of Dr. Sharma. Although I agree that the applicant was able to follow instructions and pace herself to complete tasks assigned on Day 1 of Ms. Wong’s assessment that was something of an artificial situation and required “coaxing and encouragement.” Day 2 was a complete failure. I find the Guides’ definition of moderate impairment (“impairment levels that are compatible with some, but not all, useful functioning”) is a better fit than a rating of no impairment.

Methodology: Choosing a Percentage Within a Range of Psychological Impairment:

76As noted, I find Dr. Sharma’s 15% WPI rating underestimates the applicant’s impairment. However, I find the 49% WPI assigned by Omega is clearly inflated. This is a result of the different reasoning and methodology used by Dr. Sharma and Dr. H. Becker in converting moderate and marked impairment ratings to percentages, and begs the question of whose rating is the more accurate, and why.

77The Guides provide no methodology to explain how to assign a specific percentage WPI within the range provided for each class of psychological impairment. Yet, arriving at a reliable, accurate number is important for determining catastrophic impairment under the Schedule, for two reasons. The first reason relates to the 55% combined WPI category under paragraph (f). One component of that category is psychological impairment. A person may not have a marked psychological impairment that will independently qualify as catastrophic under paragraph (g). But she may have a mild or moderate impairment which, when converted to a WPI percentage and combined with her other impairments under paragraph (f), reaches the 55% catastrophic threshold. For the purpose of paragraph (f), then, it is important that assessors provide as accurate a WPI percentage as possible where a psychological impairment is classed as mild or moderate. This is not an issue in this case, as I have found that the applicant independently meets the catastrophic threshold of marked impairment under paragraph (g), and I do not need to determine a percentage WPI for psychological impairment for the purposes of paragraph (f).

78The second and more important reason a rational method for choosing a percentage WPI within a class of impairment is needed is to help determine which of the parties’ widely varying WPI ratings of 15% vs. 49% is the more accurate and reliable. In this case, they disagree about methodology. Dr. Harold Becker, Omega’s Medical Director, testified that because the Guides provide no method, and “medicine does not have the tools” to do this, his solution is to always choose the highest percentage rating in a range on principal, on the basis that “you are no better than your worst impairment.” Accordingly, he simply assigned a WPI of 49%, the maximum of the marked range, to the applicant’s impairment in the adaptation domain. I find this to be no method at all.

79I agree that it is a generally accepted principle under the Guides that when assigning a class of impairment to each domain using the word descriptors in Chapter 14 - mild, moderate, marked or extreme – the highest class is chosen to represent the overall psychological impairment, consistent with Dr. Becker’s statement that a person is no better than their worst impairment.

80This does not, however, justify automatically choosing the highest percentage in each range. That approach is arbitrary and renders the use of ranges within a class of impairment meaningless. On that point, I prefer the testimony of Dr. Sharma, that assessors must use their clinical judgment and expertise to select the most appropriate WPI percentage in a range. This view is in line with the principle articulated in the Guides that “until research [discloses] direct relationships between medical findings and percentages of mental impairment . . . the medical profession must refine its concepts of mental impairment, improve its ability to measure limitations, and continue to make clinical judgements [Emphasis added].¹⁵ Case law imposes a similar requirement.¹⁶

81I find there is no rational basis for Omega’s 49% WPI rating for psychological impairment. However, I find Dr. Sharma’s rating of 15% is too low. 15% represents the low end of the moderate range according to Table 2 in Chapter 4.¹⁷ The moderate range is 15 -29%. The marked range is 30 – 49%. Dr. Sharma testified that he chose the lowest number in the moderate range because of inconsistencies in the medical file and in the applicant’s self-reports; minimal cognitive impairment due specifically to a brain injury; conscious or unconscious feigning on the part of the applicant; and because he felt the accident was not the only cause of the applicant’s psychological problems or her functional limitations. He felt that the applicant was more capable than she reported to him.

82I find Dr. Sharma’s rating is unsupportable. As part of his diagnosis of the applicant’s mental condition when he assessed her (depression, anxiety and post-traumatic stress, improved since the accident), Dr. Sharma rated her functioning using the Global Assessment of Functioning (GAF) scale from the DSM-IV TR and assigned a score of 50 based on her presentation, which he took at face value. A GAF score of 50 represents serious symptoms or serious impairment in social, occupational or school functioning. It translates to a WPI of 30% according to Table 3 in Chapter 4 of the Guides, using a tool called the California Table. This would qualify as a marked impairment. This is not consistent with Dr. Sharma’s conclusion that the applicant’s overall impairment was moderate with a WPI of 15%.

83At the hearing, Dr. Sharma attempted to explain the discrepancy between his GAF score of 50 and his WPI rating of 15%. In addition to the factors identified above, he felt there were other pre-disposing and pre-existing factors contributing to the applicant’s presentation. These were the anoxic episode when the applicant was an infant, two pre-accident concussions and a possible undiagnosed learning disability. The 15% WPI rating, therefore, only represented the portion of the impairment he felt could be attributed to the accident.

84I reject this opinion for three reasons. The first is that it is inconsistent with Dr. Sharma’s own opinion that the applicant’s complaints of cognitive impairment were not due to brain injury. The second reason is that I find it discounts the emotional trauma of the accident, a factor which is not disputed. The third reason is that it does not account for the debilitating anxiety which prevents the applicant from carrying out normal activities outside her home to a significant degree. Finally, it could be equally argued, as Dr. Davidson did, that these same “pre-existing and pre-disposing” factors instead made the applicant more vulnerable to the emotional and physical effects of the accident. I find Dr. Sharma’s GAF score of 50, which equates to a WPI of 30%, which is a marked impairment, is more in keeping with the evidence as a whole and more accurate than the 15% WPI he put in his report.

Conclusion:

85Having considered the evidence as a whole, I find the applicant suffered a marked impairment in adaption according the descriptive criteria set out in Chapter 14 because her ability to function is significantly impeded as a result of the accident. As this is sufficient to meet the catastrophic threshold under s. 2(1.2)(g), I do not need to determine whether the applicant meets the 55% WPI threshold under s. 2(1.2.)(g).

Footnotes

1. 1As noted in the report of Omega Medical Associates (Omega).
2. 2Drs. Bartolucci and Vitelli and K. Klein, OT, January 6, 2014; S. Szilvasy, July 18, 2014; B. Heaslip, speech pathologist, August 27, 2014; J. Hamilton, speech language pathologist, September 12, 2014; Dr. A. Syed, psychologist, neuropsychologist, October 3, 2014.
3. 3S. 3(1).
4. 4The word descriptors mild, moderate, marked and extreme can, if required, be converted or “translated” to WPI percentages using Table 3 of Chapter 4 in the Guides, so that psychological impairments can be combined with other impairments under s.2(1.2)(f) of the Schedule. Table 3 provides a percentage range for each class of impairment. A 15% WPI is equivalent to the bottom of the moderate impairment range, which extends from 15 – 29%. A WPI of 49% represents the top end of the marked impairment range, which is 30 – 49%.
5. 5Guides, p. 14/294.
6. 6As reported by Drs. Vitelli, West, Robinson, and Sharma, who found no evidence of loss of consciousness and concluded that the concussion would have been mild and ought to have healed after two years.
7. 7S. Szilvasy, reports dated February 5, 2014 and July 18, 2014; H. Visscher; and J. Wong.
8. 8Report dated October 3, 2014.
9. 9A clinical note from the family doctor’s records dated November 20, 2012 indicates the applicant inquired about the Ontario Disability Support Program after her shoulder injury. The applicant testified she did not think she had applied for disability benefits, because her doctor told her, “You have two arms, figure out how to use them.”
10. 10As reported to Dr. Vitelli.
11. 11As reported by Drs. Vitelli, West, Sharma, D. Robinson, neurologist and J. Hamilton speech pathologist.
12. 12Lack of oxygen to the brain. The applicant described that she underwent surgery at the age of three months for an intestinal blockage that left her “dead on the table” for five minutes. Thereafter she suffered seizures until the age of ten.
13. 13As reported to S. Hall, social worker (Report dated April 17, 2014) and Dr. Syed (Report dated October 3, 2014).
14. 14At p. 294.
15. 15Guides at p. 14/301.
16. 16Moser
17. 17See footnote #5.