16-003415/AABS v Allstate Insurance Company of Canada, 2018 CanLII 8071

Date: 2018-01-05

Tribunal File Number: 16-003415/AABS

Case Name: 16-003415/AABS v Allstate Insurance Company of Canada

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

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Cezary Paluch, Member

Held in Person: June 12, 13, 14 and 15, 2017 in London, Ontario

APPEARANCES:

Applicant: [The Applicant]

For the Applicant: Alfonso Campos Reales, Counsel

For the Respondent: Nawaz Tahir, Counsel

Representative for the Respondent: Quang Tran

Reporter: MDM Reporting Ltd.

Spanish Interepreter: Maria del Rocio Agraz de Cosman

Introduction:

1The applicant, [applicant], was injured in an automotive accident on October 24, 2013. She applied for and received benefits under the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule") from the respondent, Allstate Insurance Company of Canada (“Allstate”).

2On May 16, 2016, the applicant applied to Allstate for a determination that her accident injuries resulted in an impairment that met the statutory threshold for a “catastrophic impairment”. Allstate denied her application. It maintained that the applicant did not sustain a “catastrophic impairment” as a result of this accident, as defined in the Schedule.

3The parties participated in settlement discussions at the case conference held on January 16, 2016, but were unable to come to a resolution and the matter proceeded to a four day in-person hearing.

4At the start of the hearing, the applicant requested that the hearing be restricted only to the issue of whether the applicant was catastrophically impaired as a result of her accident.¹ A finding of catastrophic impairment entitles insured persons to claim enhanced accident benefits provided they meet certain eligibility criteria.

Overview:

[Applicant’s] Medical Condition before the Accident

5The applicant was born in El Salvador and immigrated to Canada in 1988 as a refugee. Her first language is Spanish. By all accounts, before the accident, AR was healthy and relatively pain-free. She had no pre-accident history of psychiatric, neurological or cognitive issues; no additional significant history of injuries, surgeries, hospitalizations, illness or disease; and no prior motor vehicle accidents. She did report some history of anxiety in relation to going through an MRI.

The 2013 Accident

6On the morning of October 24, 2013, [applicant] was a seat-belted driver and sole occupant of a Nissan Maxima that was side-swiped at an intersection by a vehicle running a red light. The air bags deployed. The main damage occurred to the front left side of the car near the wheel with no obvious compartmental damage. At the time of the accident, [the applicant] was 47 years of age, married with two children. She was working as a Personal Support Worker (“PSW”) at Extendicare, a nursing home in London, Ontario.

[Applicant’s] Medical Condition after the Accident

7The applicant was taken to the hospital by ambulance and discharged the same day.² At the hospital, investigations revealed that she sustained multiple soft tissue injuries, and complained of pain to her back and neck. Current complaints are pain in both shoulders, neck and back pain, headaches (that occur on a variable and unpredictable basis), and symptoms of anxiety. The applicant submits these symptoms have significantly impacted her ability to function in her daily life.

Issue:

Did the applicant sustain a catastrophic impairment as defined in the Schedule as a result of the accident?

8The issue in this hearing is whether the applicant suffered a catastrophic impairment that results in a Class 4 impairment (marked impairment) or Class 5 impairment (extreme impairment) due to mental or behavior disorder.

Result:

9The applicant is not catastrophically impaired, in that she does not suffer an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, (the “Guides” or “AMA Guides”) results in a Class 4 impairment (marked impairment) or Class 5 impairment (extreme impairment) due to mental or behavioural disorder. Although the applicant did suffer a mental or behavioural disorder because of the accident, the resulting impairment is not severe enough to qualify as a catastrophic impairment.

The Law

10Definition of catastrophic impairment:³

(f) an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

11The Guides deal with these disorders at Chapter 14.

12The stated purpose of the Guides was to achieve a greater degree of objectivity in estimating the degree of permanent impairments by providing a standard framework and method of analysis.

13In this decision, I will refer to a mental or behavioural disorder interchangeably as a psychological impairment.

14The Ontario Court of Appeal in Liu⁴ confirmed that the test of catastrophic impairment is a legal test and not a medical test. The Court stated:

“Any notion of catastrophic injury, other than the specific meaning ascribed to that term by the legislation, must be discarded when considering whether a claimant meets the statutory test. The statutory scheme creates a bright line rule which is relatively easy to apply.”

15The burden of proof rests with [the applicant]. She must prove on the balance of probabilities that, as a result of the accident, she sustained a “catastrophic impairment” as defined in clause 3(2)(f) of the Schedule. Again, under paragraph (f), a catastrophic impairment is a marked (Class 4), or extreme (Class 5) psychological impairment, that affects useful function in any one of the four functional domains.

Impairment Categories and Word Descriptors to Rate the Severity of the Impairment

16Under the Schedule, “impairment” means “a loss or abnormality of a psychological, physiological or anatomical structure or function.”

17Impairments 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 on a five-category scale that ranges from no impairment to extreme impairment. The word descriptors are important because they assign meaning to each category.⁵ Therefore, it is not the category label itself (i.e. mild, moderate, severe) that has to be carefully assessed and analyzed but the language of the descriptors themselves.

18For each of the four areas of functioning, the 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 (ADL) Social functioning (SF) Concentration (CCP) Adaption (AD)

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

Single Marked Impairment in Any One of the Four Functional Domains is Required

19It is well established jurisprudence that a single marked impairment will qualify as a “catastrophic impairment”. In Pastore v. Aviva Canada Inc.⁶ the Ontario Court of Appeal settled this issue in overturning the Divisional Court’s decision, siding with the original decision, by holding that the word "a" in clause (g) of the Schedule only requires a single function from the Guides to be at the marked impairment (Class 4) level in order to qualify as catastrophic impairment.

20This interpretation has been consistently followed by arbitral decisions both at the Financial Services Commission of Ontario (FSCO) and at the Licence Appeal Tribunal (“LAT”).⁷ I am not persuaded by the respondent’s submissions that that I should depart from them and that I am not bound by anything⁸ including the Court of Appeal decision in Pastore. The respondent submits the latter is “an administrative law decision” (not a substantive insurance law decision) and I should follow the Divisional Court decision that specifically addressed the substantive issue.⁹ My reading of the Court of Appeal decision, in particular paragraph 43, is that it is directly on point and has not been reversed or overturned. The Court of Appeal allowed the appeal, accepted as reasonable the interpretation that the use of the word "a" as used means any or one single marked or extreme impairment out of the four areas of functioning, set aside the decision of the Divisional Court and reinstated the order made by the delegate. Therefore, I find that the applicant need only demonstrate impairment in one of the four domains of function.

21The severity of the applicant’s mental and behavioural impairments has been assessed by medical specialists for both sides. The conclusions of these assessors are summarized in the table below:

Summary of the Opinions

Activities of Daily Living (ADL)

Social Functioning (SF)

Concentration, Persistence, Pace (CPP)

Adaptation (AD)

App.

Resp.

App.

Resp.

App.

Resp.

App.

Resp.

Marked Impairment (4)

Mild to Moderate Impair-ment (2) to (3)

Marked Impair- ment (4)

Mild Impair- ment (2)

Marked Impair- ment (4)

Mild Impairment (2)

Marked Impair- ment (4)

Mild Impair- ment (2)

Dr. B. Levitt, Neuropsych-ologist and Dr. K. Romero, Neuropsychologist

Dr. A. Zielinsky, Psych-iatrist

Dr. M. Dowhaniuk, Neuropsych-ologist¹⁰

22Dr. Levitt rated the applicant at a Class 4 in all four areas of functioning. In contrast, Dr. Zielinsky rated the applicant as a Class 2 to 3 in the area of ADL and Class 2 in the remaining three areas. Dr. Dowhaniuk rated the applicant as a Class 2 in CPP assessed one sphere in the area of CPP and deferred the remaining Dr. Zielinsky.

23None of the experts concluded that the applicant suffered a Class 5 (extreme impairment. Therefore, the real issue was whether the applicant had a Class 2 (mild), Class 3 (moderate) or Class 4 (marked) impairment within any one of the four categories or classes (ADL, SF, CPP and AD).

24According 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.” A mild impairment is one where the impairment levels are compatible with most useful functioning.

Position of each party

(a) The applicant

25The applicant’s counsel submitted that [the applicant] meets the threshold for a catastrophic impairment because she suffered a psychological impairment as a result of the accident that results in a marked impairment (Level 4) in every single domain.

26The applicant submitted that causation is not an issue and relied on the respondent’s own expert’s opinion that concluded that the current conditions are materially related to the accident.¹¹

(b) The respondent

27The respondent submitted that the issue is not whether [the applicant] has a mental/behavioral diagnosis, but rather whether her mental or behavior disorder rises to the level of “catastrophic”.

28The respondent submitted that there are credibility concerns on the part of the applicant because she had no objective injuries as a result of the accident and her psychological issues must be examined cautiously through a critical objective lens.

29In its submission, the respondent seemed to raise the issue of causation based on a mass found on the applicant’s uterus on an MRI after the accident. However, in light of the respondent’s own assessor, Dr. Zielinsky, concluding that the applicant’s current conditions are materially related to the accident, and the evidence as a whole, I am satisfied on a balance of probabilities that the applicant’s current condition is materially related to the accident and whatever injuries or impairments the applicant has sustained or endured were caused by the motor vehicle accident.

30Overall, I find the applicant did not suffer a marked impairment in any of the four domains as a result of the accident. I preferred the evidence of Drs. Dowhaniuk and Zielinsky over that of Dr. Levitt for two main reasons. The first is that I found their evidence more balanced, impartial and comprehensive, especially given the credibility concerns regarding the applicant. Second, I found Drs. Dowhaniuk and Zielinsky’s analysis of the criteria for each level of impairment in the Guides to be more accurate and in accordance with the Guides.

Determinations about difficult cases should be made through a multidisciplinary approach

31With respect to pain, which was a major factor or component in this case, and germane to the applicant’s claim of mental and behavior disorder, the Guides suggest in Chapter 14 that:

Assessing impairment related to pain is difficult, and the process is not as clearly and precisely defined as with some kinds of impairments, Therefore, determinations about difficult and borderline cases in this category should be made through a multidisciplinary, multispecialty approach, in which physicians who are knowledgeable about the different body systems are involved as needed.¹² [emphasis added]

32The respondent’s opinion was made as part of a multi-disciplinary team that included: Dr. Zielinsky, a psychiatrist; Dr. Dowhaniuk, neuropsychologist; and Ms. T. Shaw, occupational therapist. A summary report signed by the CAT Coordinator, Dr. M. Rajwani, concluded that the applicant does not meet the threshold for catastrophic impairment.¹³

33In contrast, the applicant’s opinion regarding the catastrophic determination was not made as part of a multi-disciplinary team approach. In cross examination, Dr. Levitt explained that only he and Dr. K. Romero, also a psychologist, prepared the report. As psychologists, neither Dr. Levitt nor Dr. Romero were members of the College of Physicians and Surgeons and Dr. Levitt could not diagnose physical impairments such as chronic pain or prescribe medication (but could diagnose pain disorders).¹⁴ Dr. Levitt conceded that that no physiatrist (doctor of physical medicine) or orthopaedic surgeon signed his report for the applicant.¹⁵ Although he cited Dr. Sequeira’s physiatrist report, Dr. Sequiera was not part of Dr. Levitt’s assessment team in preparing the CAT assessment. As I understand Dr. Levitt’s testimony, the reason he did not utilize a multi-disciplinary approach is that this was not a difficult or borderline case for him. This was restated by the applicant’s counsel in final submission. I had some difficulty with this explanation for the following reasons.

34The Guides clearly say, “assessing impairment related to pain is difficult”. Earlier in his direct testimony when speaking about ADLs, Dr. Levitt acknowledged that the Guides only give a little bit of guidance on the difference between a Class 3 and Class 4 impairment and “that’s where it all starts to get fuzzy”. Therefore, I fail to see how Dr. Levitt could say that this was not a difficult case when he acknowledged some difficulty or challenges with the rating in this case. I find his view too cursory and also unsupported by the facts of this case.

35Not only do the Guides emphasize a multidisciplinary approach in difficult or borderline cases, they also cite clinical neutrality and a careful investigation where warning signs appear.¹⁶ In this case, I find a clear warning sign was that the applicant failed validity tests administered by Dr. Levitt. Even if, as Dr. Levitt concluded, [the applicant’s] performance on the validity tests were due to poor engagement rather than a deliberate attempt to malinger, this should have prompted further investigation and/or stricter compliance with the Guides’ preferred multidisciplinary approach on behalf of the applicant.

36I will now examine the evidence in respect of the applicant’s impairment due to mental or behavior disorder.

Evidence and Analysis:

Is the applicant catastrophically impaired in that she suffers an impairment that, in accordance with the AMA Guides, results in a Class 4 impairment (marked impairment) due to mental or behavioural disorder?

37In Pastore, the Court of Appeal summarized the following three-stage approach to deciding the issue of catastrophic impairment due to mental or behavioural disorders:¹⁷

1. Did the accident cause the applicant to suffer a mental or behavioural disorder?

2. If it did, what is the impact of the mental or behavioural disorder on the applicant’s life?

3. In view of the impact, what is the level of impairment?

4. Did the accident cause the applicant to suffer a mental or behavioural (psychological) disorder?

Causation

38Both the applicant and respondent’s experts agree that the applicant suffered a psychological impairment as a result of the accident. In their final submission, respondent’s counsel conceded that this is not a causation case from the perspective of did the accident cause some issues.¹⁸

39Having considered the evidence offered both orally and in the written reports, I am convinced by the evidence, on a balance of probabilities, that the applicant suffered from a mental or behavioural disorder(s) as a direct result of the accident. The applicant has proven that, but for the motor vehicle accident, she would not be suffering the impairments which caused the complaints she puts forward as the basis for her claim.

Diagnosis

40The methodology of the Guides requires that the presence of a mental disorder be documented primarily on the basis of reports from accepted professional sources, such as psychiatrists, psychologists and other health professionals.¹⁹ The medical practitioners have diagnosed the applicant with varied findings. For example, the applicant’s principal expert witness, Dr. Levitt made the following diagnoses:

• subsyndromal post-traumatic stress disorder (“PTSD”)

• major depressive disorder, moderate, chronic

• moderate somatic symptom disorder, persistent

• psychological factors affecting pain, moderate²⁰

41Dr. Keith Sequera, a physiatrist, referred to by the applicant’s lawyer, for a medical legal assessment, diagnosed the applicant with chronic pain syndrome in addition to neck pain (WAD II), low back pain, buttock pain, headaches, mood dysfunction and possible concussion as a result of the motor vehicle accident in October 2013.²¹

42Dr. J. Murray, psychologist, who conducted an insurer’s examination in January 2015, diagnosed her with Somatic Pain Disorder and Major Depressive Episode and transient symptoms of phobia for vehicular travel.²² The applicant’s treating psychologist, Dr. D. Medard, diagnosed the applicant with PTSD, major depressive disorder and mild neurocognitive disorder because of post-concussive symptoms. Dr. T. Biederman, who took over from Dr. Menard in June 2016, referred to by the applicant’s lawyer, also diagnosed the applicant with PTSD and added Somatic Pain Disorder.²³

43The applicant was referred to a chronic pain clinic at St. Joseph Hospital, by her family doctor, Dr. D. Martyniak and saw Dr. E. Loh, a pain specialist, who diagnosed her with fibromyalgia.²⁴

44The respondent’s medical expert, Dr. N. Zielinsky, diagnosed the applicant with adjustment disorder with depressed and anxious mood, chronic.²⁵ He did not agree that the applicant had a pain disorder or depression.²⁶

45What all these diagnoses mean, simply put, is that the applicant has had considerable emotional difficulty adapting to and coping with her many psychological and physical symptoms, including pain, since the accident. I find that, regardless of the differences in diagnoses amongst the medical practitioners, at the very least, the applicant suffered anxiety and depression and inability to cope with her pain, and experienced an emotional response to a stressor. The diagnosis of adjustment disorder best fits or describes her symptomology.

46I also note that these diagnoses alone are of limited assistance as far the issue in dispute here as they do not provide enough detail about whether a particular mental disorder reaches the level of being “catastrophic.” Indeed, the Guides state that the diagnosis is of limited relevance on objective assessment of a psychiatric impairment because the words do not provide sufficient insight into the nature of the impairment. It is not about whether the claimant has a diagnosis or not – the issue is whether those reach catastrophic status.

47Once the cause(s) of any psychological impairment has been determined, and related to the accident, the next step is to assess the impact on the applicant’s daily functioning.

2. What is the impact of mental or behavioural disorders on the applicant’s life?

48The applicant testified that before the accident she worked 40 hours a week as a personal support worker at a nursing home. She regularly participated in church activities such as a Sunday school teacher, woman’s group meetings, and various fundraising activities. After the accident, the applicant testified that she was a totally different person. She was unable to work at all as a support worker or to continue with her volunteer work at the church. In direct examination, she testified that she had pain in her hip, left leg and whole body. She said she was pulling out her hair to distract herself from the pain. She was prescribed medication, water and massage therapy. The applicant’s husband also testified that [the applicant]. was totally different after the accident. He described her before as an enthusiastic person with lots of energy, whereas afterwards he talked about her having pain in her neck, left hip, left leg, and muscles.

49To paraphrase Dr. Levitt, [the applicant] is experiencing significant sadness and low mood; she feels a sense of loss regarding the decline in her ability to function at home and in her community. She has a strong desire to return to work but is reminded of her disability and constant pain.

50Having regard to the evidence before me, particularly the testimony of the applicant that she continues to experience pain, anxiety, depression, feelings of sadness, I find that the weight of the evidence supports a finding that the accident resulted in a mental or behavioural disorder which impacted the applicant’s daily functioning. However, I find that her mental and behavioral disorder does not rise to the level of being “catastrophic.”

The Four Spheres of Function

3. Regarding the impact of the mental or behavioural impairment, what is the severity of the limitations in relation to activities of daily living, social functioning, concentration and adaptation as set out in the Guides?

51The third step in assessing the effect of the mental or behavior disorder on the applicant’s life is to determine the severity of the impairment in each of the four domains according to the criteria of mild, moderate, marked or extreme as set out in the Guides. I have kept in mind the caveat that the focus on objectivity must always be kept at the forefront in assessing the evidence.

52In this respect, the severity of the limitations or validity of the applicant’s claim of catastrophic impairment turns, to a large extent, on the reliability of her evidence, in terms of both her complaints of constant pain and social withdrawal following the accident. As well as, her presentation to the various assessors and results of the validity tests.

Credibility

53The applicant’s counsel confronted this issue in his final submissions at the hearing by stating that the respondent will say that: “she’s faking it, she’s faking it, she’s faking it.”²⁷ Allstate raised a number of concerns with respect to the applicant’s credibility. It submitted that these credibility issues call into question the extent of the applicant’s impairment and her complaints and do not support a finding that she was catastrophically impaired.

54The Guides instruct the assessor that although malingering or exaggeration of symptoms is rare, the physician should be aware of this possibility when evaluating impairments, and the possibility of obtaining monetary awards and still avoiding work increases the likelihood of malingering.²⁸

55Overall, I found that there were significant discrepancies in the applicant’s testimony. I found her testimony at times to be evasive, indirect and inconsistent with no satisfactory explanation provided such that I had some concerns regarding the applicant’s credibility. For example:

i. The applicant was very reluctant or unwilling to admit that the main impact during the collision was to the front tire of the driver’s side and there was no noticeable damage to the driver’s side door of her car. When shown pictures of the vehicle showing no visible damage to the driver’s side door, she was vague and responded: “I cannot say specifically but it’s evident what is in here” (referring to the pictures of the damaged vehicle).

ii. The applicant was at times evasive or indirect in areas that I would expect her to have more consistency and recollection. She did not recall what exercises her family doctor asked her to do after the accident.²⁹ She did not remember telling her family doctor that she was able to do housework but with breaks.³⁰ She did not remember her family doctor suggesting a referral to a social worker.³¹ She did not remember being referred to Dr. Brownstone³² or a chiropractor, Dr. Souter.³³ She did not remember doing some planning with CBI Physiotherapy & Rehabilitation Centre about how much activity to do each day.³⁴

iii. In cross examination, when asked if she called 911, she responded that she did not remember. When asked if she called her husband, she responded that she did not remember. She testified that she did not remember making any phone calls at the scene of the accident. However, the Ambulance Call Report states that the applicant was on the phone when they arrived and responders experienced a “delay extracting due to patient phone calling, alert and in minimal distress.” The husband, F.R., in his testimony confirmed the applicant had called him and told him that she just had an accident.

iv. In cross examination, testifying about the accident, the applicant stated she became blank and lost consciousness. She also told this to Dr. Levitt and Kelly Smale, the OT. Dr. Sequera’s report notes that she told him that “she momentarily blacked out” and struck her head.³⁵ However, the Ambulance Call Report details that when the EMS arrived the applicant was awake and making phone calls, alert, oriented, and in minimal distress. There is one notation in the Emergency Room report that [the applicant] reported that she “may have had LOC”.³⁶ Her Glasgow Coma Score remained at 15/15 at the hospital. There were no other witnesses to corroborate the applicant’s testimony that she lost consciousness at the scene of the accident. A CT scan of the head completed on November 2013 and May 2015 was normal.³⁷

v. At the time of the accident, the applicant was working at Extendicare as a PSW – permanent, part-time. The applicant testified that she was very happy working at Extendicare and wanted to return to work.³⁸ However, she only attempted to return on one occasion a few days after the accident.³⁹ She made no other efforts afterwards – this was the only time she tried to return to work.⁴⁰ She did not have any discussions with her employer about coming back for a few hours at a time despite working there part-time at one point (although she called him several times to keep her position open).⁴¹ She did not apply for another job. This behavior was consistent with what she told Dr. Zielinsky – that the job was physically demanding and she could not do it.⁴² I believe that a more likely explanation is that her job was physically demanding and challenging.

vi. In direct examination, the applicant said she quit a previous job at PeopleCare retirement home. However, in cross examination, when it was put to her that she was fired, the applicant disagreed and vaguely stated: “I don’t know which one you are talking about.”⁴³ When a letter dated August 31, 2010 from Sarah Hind, Director of Care, PeopleCare⁴⁴, was shown to her stating that her employment was “terminated” because a complaint had been made about her, the applicant said she never received this letter, not even in the mail.⁴⁵ Despite this letter, the applicant still maintained that she was never fired or terminated from her job at Peoplecare and that she merely finished work and decided not to go back.⁴⁶

vii. The applicant testified that her job at Richmond Woods Retirement Residence was a nice job and she was happy with it but she had to quit because she decided to stay at another job with Extendicare which was closer to home.⁴⁷ However, a letter from Mary Ellen Renwick, General Manager, Richmond Woods Retirement Residence dated July 30, 2009, stated that her employment was terminated during the probationary period.⁴⁸

viii. At one point, during her testimony the applicant said “I always have an interpreter” during an examination. However, the evidentiary record reflected that when she met with her family doctor it was without an interpreter. She spoke English with Ms. O’Neill. Ms. O’Neill testified that from her experience in working with the applicant she was able to understand English.⁴⁹ She saw Dr. Bureau, a psychologist, without the assistance of an interpreter and never told him that she prefered to have an interpreter. Dr. Dowhaniuk testified that she “did pretty well speaking in English”.⁵⁰ Even with Dr. Levitt she used the interpreter approximately 65% of the time.⁵¹

ix. At the hearing, the applicant took the position that she was unable to fully understand Dr. Zielinsky (who spoke Spanish) and unable to communicate her full history to him during the assessment. She also said that he helped her to check off certain answers on one of tests. In contrast, Dr. Zielinsky’s report describes that [the applicant] was fairly forthcoming with personal information to him and did not appear guarded or suspicious. Dr. Zielinski testified that the Spanish interpreter was late 10 minutes and when he arrived [the applicant]. said that she was comfortable communicating with him in Spanish and there was no need for an interpreter. He wrote in his report: “She established a good rapport without difficulties and communicated in Spanish with the assessor without any difficulties. When the interpreter arrived late in the assessment, she was asked whether she wanted the interpreter to be present and she declined stating that she had no difficulties communicating with the assessor”.⁵² The interview lasted two hours and his report was very detailed. I was struck by the stark divergence between the applicant’s and Dr. Zielinsky’ version of the events. I queried that if the applicant felt so strongly that she could not communicate adequately with Dr. Zielinsky, or even more alarmingly, that somehow he was checking off answers for her, why she did not terminate the assessment immediately or insist that an interpreter be present.

x. The applicant testified that the scan of her head did not come back normal and she was told by the doctors that she had a concussion. It appeared to me that none of the doctors came to this conclusion. Dr. Sequera, a certified specialist in physical medicine and rehabilitation, referred to by her lawyer, diagnosed the applicant with a possible concussion.⁵³ Dr. Dowhaniuk reported that it could not be concluded that [the applicant]. suffered a concussion head injury during the accident.⁵⁴

56The applicant’s testimony that she has not done any volunteering since the accident and tried to go back to teach Sunday school after the accident but could not, is contradicted by other evidence. Alison O’Neill, therapist, testified that [the applicant] was “trying to get back into it”.⁵⁵ Also, Dr. Menard’s clinical note of June 5, 2015, says [the applicant] is participating in more social activities and resumed going to church. Similarly, the applicant’s husband in cross examination acknowledged that he was trying to help her to return to volunteering and confirmed that “we actually started in church, we did, we did a class together…she will actually hand out the papers where the kids are to read…what paragraph of the Bible they have to learn from for that particular Sunday.”

57Some of the above inconsistencies are individually significant, others less so. The contradictory statements the applicant has made do not cause me to conclude that she has intentionally misled, but they do cause me to approach her evidence with skeptical caution. This is especially pertinent, when viewed in conjunction with the failed performance validity test results⁵⁶ which Dr. Dowhaniuk attributed to intentionally poor test taking effort.⁵⁷

58I now return to the three-step process set out in Pastore to determine [the applicant’s] substantive claim of catastrophic impairment in each of the four domains.

1. Activities of Daily Living (ADL)

59The Guides include in this category activities such as self-care and personal hygiene, eating, preparing food, communicating, speaking, writing, maintain one’s posture, standing and sitting, caring for home and personal finances, walking, travelling, recreational and social activities, work activities, driving, sexual activity, hobbies, and sleep.⁵⁸

60The Guides instruct the assessor to not only consider the number of activities that are restricted but the overall degree of restriction. Thus, an applicant may be able to perform some ADLs yet still be found to suffer a catastrophic impairment.

61Regarding the rating for this category, I prefer Dr. Zielinsky’s rating of mild to moderate over that of Dr. Levitt because Dr. Levitt relied too heavily on the self-reports of the applicant. As well, Dr. Zielinsky’s assessment of the applicant’s actual functional abilities was more accurate with the word descriptors for that category, “impairment compatible with some, but not all useful functioning”.

62The applicant testified that in addition to her pain complaints, she experiences the following:

• she has no interest whatsoever to go out

• low energy

• her vision started to get foggy

• strained relationship with her husband

• three days after the accident she started to bleed for almost six months and lost control to go to the bathroom until she had surgery to remove a mass

• severe headaches

• she is afraid of trucks

• she forgets to turn off appliances

• she started to lose her balance and trip

63However, the applicant also testified that she was able to drive (including through the intersection where the accident occurred), go to the bank located at a major intersection in London,⁵⁹ take walks in the afternoon⁶⁰, walk the dog,⁶¹ go shopping, take the bus, look at or follow a map,⁶² communicate with the bus driver, ask people/strangers to help her cross the street, meet a co-worker. She testified that sometimes she does 30 minutes of housework a day.⁶³ There was also evidence that on a typical day she gets dressed independently. The applicant’s husband confirmed that there is intimacy (just not to the level as before), she does some cooking, cleaning, driving (just not as much as before), and she started to return to volunteering at the church.⁶⁴ She reported to Dr. Levitt she can read for 30 minutes if she had a good night’s sleep and look at photo albums.⁶⁵ She gets up when her daughter gets ready for work or school and tries to help with breakfast and lunch.⁶⁶

64I find Dr. Levitt’s rating of marked impairment in the activities of daily living domain overrates the applicant’s impairment for several reasons. First, Dr. Levitt relied excessively on [the applicant’s] subjective reporting. One example of this overreliance is page 31 of his report, under the heading: Activities of Daily Living, which is replete with words such as “she reported”, or “she reports” “her self-reported issues with memory” or “she also reported.” As another example, he devotes a substantial part of his report entirely to the applicant being asked to describe her activities, and merely records her responses. I counted approximately 34 paragraphs in the report that started with the words: “When asked….”.While there is nothing problematic about this generally, in light of the concerns that I have identified with the applicant’s credibility, and the failed validity tests, I would like to see more objective indicia of assessment of this domain.

65The Guides also emphasize a multi-method approach where several sources of information are utilized. For example, I would have liked to see an OT report or other evidence of direct observation of activity as part of Dr. Levitt’s report.

66Although the applicant’s treating occupational therapist, Allison O’Neill testified at the hearing and prepared an Occupational Therapy In Home and Attendant Care Assessment dated December 28, 2016, she was not part of Dr. Levitt’s team and did not offer an opinion on catastrophic impairment.⁶⁷ Nevertheless, I found her observations of the applicant over two days to be a valuable source of information. Of the activities that Ms. O’Neill observed, like standing, walking, stair climbing, reaching, kneeling, squatting, balancing, she concluded that the applicant was “partially” functional in all of them.⁶⁸ I find the observations made by Ms. O’Neill are consistent with mild to moderate impairment in activities of daily living, consistent with the word descriptors for that category, “impairment compatible with some, but not all useful functioning.

67The second reason why Dr. Levitt overrated the applicant in this area is that he incorrectly concluded that the applicant was having difficulties with sexual functioning due to pain and this was as a result of the accident. However, the evidence was clear that the mass in her right ovary and the subsequent surgery was there before the accident but was not discovered and this was a major factor for the loss of intimacy.⁶⁹ This was confirmed by the husband’s testimony⁷⁰ and medical evidence. Moreover, the applicant had complications after the surgery and was put on medication which caused her dizziness and headaches.

68The evidence showed that shortly after the accident the applicant was referred to a gynecologist because of a mass found on her uterus and developed urinary incontinence. The hospital CT Consultation Report of October 24, 2013 (day of the accident) makes reference to a “very large heterogeneous mass.” This was an incidental finding. This mass was clearly there prior to the accident but not activated. She was put on medication and told it would cause her dizziness and headaches. In August 2014, the applicant had surgery to remove the mass and was put on pain medication such as Oxycode, Percocet and Tramcet. She changed specialists because she felt the procedure was not explained properly to her. She admitted that this caused her a lot of anxiety. Dr. Levitt in cross examination admitted that when someone is suffering from urinary incontinence it is embarrassing for that person and can cause anxiety.⁷¹ This is one reason she stopped driving. Clearly this was a major incident in [the applicant’s] life and significantly impacted her daily activities after the accident. However, Dr. Levitt underemphasized the effect of it even though this information was available to him as part of his file review.

69In his report, Dr. Levitt notes that the applicant has had trouble connecting with her husband since the accident. I see no evidence of this. In her testimony,[the applicant] said: “He understands me and he helps me.”⁷² She admitted that she loves him and they have been married approximately 30 years. She wants him home at night. He was present when the attendant care was done. He accompanied her to medical appointments. Aside from the operation to remove the mass and [the applicant’s] testimony that he feels like an aide sometimes, contrary to the applicant’s testimony, the relationship appeared to be a very positive, supportive and loving relationship. Certainly, it did not appear to me that [the applicant] had trouble connecting with him after the accident.

70I find there were a number of other deficiencies in Dr. Levitt’s report that caused me to give it less weight. The Guides tell us that a clear, accurate, and complete report is essential and suggest that certain information be included by the assessor. For example, a report should contain a list of the affected activities.⁷³ I did not see a specific list of activities in Dr. Levitt’s report. Similarly, as suggested by the Guides, his report did not specify how the applicant came to the examination (other than she was in a traffic jam); who drove; what distance she travelled; or if she had taken drugs or psychoactive substances within the past 24-48 hours which may affect results.⁷⁴

71In his cross examination, Dr. Levitt admitted to viewing the video surveillance and stated that he did not see that much.⁷⁵ The video surveillance was extensive and over several days. It showed the applicant driving by herself during all hours of the day, entering and exiting her vehicle, shopping in a thrift store, going grocery shopping with her husband, coming out of a bank, walking, carrying a basket, checking her mailbox at the house. For me the surveillance video just reinforced my conclusion that the applicant is in fact involved in her daily activities outside the home and nothing suggest that she is isolated and does not leave the home and has a marked impairment in the area of activities of daily living. When asked at the hearing why he did not comment in his rebuttal report that the video showed the applicant driving during the times that she did not feel safe driving (10 a.m.-2 p.m., 3 p.m.-5 p.m., and 7 p.m.-9 p.m.), Dr. Levitt explained that he did not catch that.⁷⁶ This omission and apparent minimization of the entire surveillance video led me to give his opinion less weight.

72In contrast, Dr. Zielinsky’s report, was part of a multidisciplinary assessment, and adhered more closely to the framework established in the Guides. That is, Dr. Zielinsky focused more on objective psychometric testing and was more attentive to the degree of restrictions of the applicant’s daily activities. Of note, Dr. Zielnisky’s testimony was particularly helpful in describing how a person with Class 4 (marked) impairment in all four categories of activity functions in their daily life. He explained that a person with a marked impairment in all four domains of functions, which is what Dr. Levitt determined, requires 24 hour supervision, abandons all routines, has to be prompted to wash every day, does not maintain any hygiene, has no in interest in food, does not cook or clean, feels that the TV is talking to her, does not go out of the house, has no initiative in engaging in any social activity, and she will not go shopping.⁷⁷ Dr. Zielinsky’s evidence on this, and why Dr. Levitt’s rating of a Class 4 (marked) impairment is incorrect, is corroborated by the Guides which state that a “marked limitation in two or more spheres would be likely to preclude performing complex tasks without special support or assistance, such as that provided in a sheltered environment.”⁷⁸

73Even if the applicant’s difficulties with her daily activities was due to pain and stress, in my view her level of impairment did not so significantly impede useful functioning so as to amount to a Class 4 (marked) impairment. For these reasons, I find the mild to moderate rating assigned by Dr. Zielinsky in this category is more accurate than a rating of marked impairment.

2. Social Functioning (SF)

74According to the Guides, Social Functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords, or bus drivers.⁷⁹

75Dr. Levitt concluded that the applicant has significant difficulties with social functioning and is markedly impaired in this area. In his report, he provided specific examples. Namely, that [the applicant] cannot connect with her husband and has difficulties being intimate with him due to constant pain and depression. She does not attend church as often, when her headaches are bad she will stay in her room for days at a time and not answer her phone.

76The applicant testified that she used to stand in front of people and deliver a lecture at her church and has not been able to return to being a Sunday school teacher or leader of a woman’s group. She also gave several examples of how she has become a different person after the accident and was unable to return to her old job as a PSW.

77Regarding this rating, I prefer Dr. Zielinsky’s rating of a Class 2 (mild) impairment over Dr. Levitt’s rating of a Class 4 (marked) impairment because I find that the evidence as a whole from multiple sources shows consistently that the applicant had signs of increased social functioning. I find her impairment was compatible with most useful functioning supporting a Class 2 (marked) impairment in this area. For example, the evidence established that:

i. The applicant had a good relationship with her daughter and her son.⁸⁰

ii. The applicant testified that she loved her husband.⁸¹ She accompanied him to the hospital when he hurt his eye.⁸² She also stated that: “he understands me and he helps me.”⁸³

iii. The applicant testified that she wants to be with somebody at night. In response to why her husband changed his work schedule she said: “…I like to have someone, talk to someone, have someone on my side.”⁸⁴

iv. The applicant travelled to a wedding in Detroit for a friend of her daughter’s and took a plane to attend a funeral with two stopovers in California.⁸⁵ A note from Dr. Menard, August 27, 2015⁸⁶, indicated that the applicant was happy she went on this trip - yet she downplayed this in her testimony.⁸⁷

v. The applicant reported to Dr. Menard, her treating psychologist, on August 27, 2015, that she was getting along very well with other members of her treatment team and feeling that she is making progress.⁸⁸

vi. The applicant talked to Dr. Menard about her plans for the holiday⁸⁹ and how she can push herself by going to a baby shower and having coffee with a friend.⁹⁰

vii. The applicant was able to take public transit/bus after the accident.⁹¹

viii. The applicant travelled to Toronto for some medical assessments.⁹²

ix. The applicant met a co-worker at a park.⁹³

x. The applicant was able to communicate with a bus driver for guidance and asked people to help her cross the street.⁹⁴

xi. The applicant used or read a bus map to help her take the appropriate bus.⁹⁵

xii. The applicant went to Staples with her therapist to pick out a chair.

xiii. The applicant’s husband testified that they are doing some social activities together.⁹⁶

xiv. The applicant organizes clothes for children in El Salvador every three weeks which takes organization and planning.

xv. People come to see her at home.⁹⁷ One friend comes and sees her twice a week and calls every day.⁹⁸

xvi. The applicant interacts and says hi to strangers.⁹⁹

78The Guides explain that impaired social functioning may be demonstrated by a history of altercations. I did not hear anything about any such altercations with any neighbors or friends or inappropriate behavior towards others.¹⁰⁰ According to Dr. Menard’s note, the applicant was increasing her social activities.¹⁰¹ Alison O’Neill testified that [the applicant] was trying to return to volunteering at the church. The applicant’s husband acknowledged that he is trying to help [the applicant] return to volunteering and stated that they actually did a Sunday class together. There was no evidence of inappropriate behavior on the part of the applicant during these volunteer sessions.

79Surveillance shows that the applicant is capable of some social interaction. She was seen driving alone and with her husband several times, going shopping at a mall and engaging in conversation on a hands-free in-car cellphone device. On September 8, 2015, she is seen going into a restaurant – Asian Wok. On March 17, 2016, she is seen driving to a TD Canada Trust bank. She is able to go outside when she has things to do. She walks her dog. She goes out to the park to meet with a co-worker. She has been able to overcome crossing the area where the accident happened. She completed several driving therapy sessions that lasted up to 40 minutes each. This suggests an ability to learn despite her impairment. My own observations of [the applicant] made throughout the hearing is that she was able to interact appropriately with her counsel, the interpreter and the respondent’s counsel. She was able to recall details of her life, review documentation and ask for breaks during the hearing. As such I cannot conclude that the weight of the evidence supports a finding of marked impairment in social functioning.

80Therefore, I find that the applicant’s level of impairment in Social Functioning is mild (Class 2) impairment levels are compatible with most useful functioning.

3. Concentration, Persistence, Pace (CPP)

81According the Guides the following is to be evaluated under this category:

“….the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings. In activities of daily living, concentration may be reflected in terms of ability to complete everyday household tasks.”¹⁰²

82On the rating for the domain of concentration, persistence and pace, I find the Guides’ definition of mild impairment (“impairment levels are compatible with most useful functioning”) is a better fit than a rating of marked impairment and I prefer Drs. Zielinsky and Dowhaniuk’s ratings over those of Dr. Levitt for the following reasons.

83In his testimony, Dr. Zielinsky described a person who has a marked impairment in concentration as someone who has difficulty focusing which will be obvious during the assessment because the person will not be engaged, will not maintain direct eye contact, will be slowed down or agitated to the point they cannot sit still, will be restless or fidgeting, cannot follow a conversation, questions have to be repeated, and will need breaks every five minutes. In his report, Dr. Zielinsky stated that the applicant completed all psychometric testing on time, questions or choices for answers did not have to be repeated, there was no misinterpretation of events, she showed no disorders of attention, concentration or recent memory during the assessment.¹⁰³

84The Guides, at page 293, also state that taking a standardized test requires concentration, persistence, and pacing; thus, observing individuals during the testing process may provide useful information.

85Dr. Dowhaniuk did not use a psychometrist to conduct the testing (unlike Dr. Levitt) and did the testing himself so he was able to directly observe [the applicant] during the testing procedure. He explained that he finds it more useful to spend the time with the patient to observe their behaviours directly.¹⁰⁴ The evidence from Dr. Dowhaniuk is that during the testing no overt pain behavior was observed on the part of the applicant, she was encouraged to give her best effort at all times and answer all questions honestly and openly, she appeared alert and attentive during the testing, she appeared to easily understand the test instructions, she attempted all tasks and appeared to work carefully and focus on the task at hand.¹⁰⁵ Dr. Dowhaniuk testified that she was pretty accurate discussing dates, details of her treatment, and she did not exhibit overt pain type behaviors like sitting, having to shift positions, wincing, and audible breathing.¹⁰⁶

86Dr. Dowhaniuk’s evidence was unchallenged in cross examination. Overall, I found Dr. Dowhaniuk to be objective, knowledgeable, detailed, and credible in providing his testimony at the hearing.

87The applicant testified as follows. She had never missed a medical assessment.¹⁰⁷ That she attends hydrotherapy on a weekly basis. She completed several driving therapy sessions that lasted up to 40 minutes each. She remembers using strategies such as lists and a day planner and that she checks off ingredients when cooking. She plays a CD on her computer with the help of the daughter. She is trying to do brain activity exercise like puzzles and reads at home, does crafts¹⁰⁸. She is able to operate a Crock-pot cooker and always reads the manual to know what steps she has to follow.¹⁰⁹ She collects clothes to send to El Salvador and works within a budget.¹¹⁰ She was able to attend a TD Canada Trust bank to do some banking.¹¹¹ All of these examples combined, indicated to me that the applicant is able to follow through on most tasks and instructions.

88In his report, Dr. Levitt describes cognitive difficulties (i.e. lapses in memory, sensitivity to light, poor decision making, headaches) that he says impede the applicant’s level of functioning in the area of CPP. He appears to conclude that these difficulties result from some sort of a cognitive impairment.

89However, [the applicant’s] complaints of cognitive difficulties were not corroborated by any valid objective evidence of impairment. A CT scan of the head on November 14 was normal. Dr. K. Sequera only diagnosed the applicant with a possible concussion. Dr. Dowhaniuk, a neuropsychologist, opined in his report, that one could not conclude that [the applicant] suffered a concussion or mild traumatic brain injury during the accident. He noted that indicators are negative for diagnosing a concussion unless [the applicant] sustained a brief concussion perhaps related to being struck in the face by the airbag. In his testimony he explained, even if it was a concussion, concussions do not produce permanent impairment and concluded that based [the applicant] whole presentation it would also be incorrect to categorize it as a post-concussion syndrome.¹¹²

90Another reason why I prefer a rating of mild impairment in this category is because I had reason to doubt [the applicant’s] complaints of cognitive and memory limitations. Her subjective cognitive complaints were not corroborated by objective evidence of impairment from psychological standardized testing administered during the assessments. In other words, [the applicant’s] lower than expected test results, lower than elderly adults with dementia who require constant supervision, lower than somebody who suffered a severe brain injury, indicate to me these results are not reliable.

Cognitive Testing

91The Guides caution that although malingering or exaggeration of symptoms is thought to be rare, the physician should be aware of this possibility when evaluating impairments. Moreover, exaggeration of symptoms may be suspected when the individual’s symptoms are vague, ill defined, over-dramatized, inconsistent, or not in conformity with signs and symptoms known to occur.¹¹³ In this respect the Guides suggest using tests of symptom severity.

92In considering the possibility of exaggeration or malingering, both Drs. Levitt and Dowhaniuk, conducted a wide range of psychological and validity (or test taking effort) testing as part of their assessments. As I understand from the evidence, symptom validity is determining whether someone is credible in terms of reporting their symptoms and performance validity is whether someone is making enough effort for the assessor to know that the data is useful.¹¹⁴ Moreover, performance validity tests are fairly simple tests where people should regularly score above random chance but the patients do not know this when taking the test.

93Dr. Levitt administered two tests of performance validity: (i) the “test of memory malingering” or TOMM; and (ii) the Green’s Word Memory Test or GWMT. The TOMM is a performance validity test where the person is given one of two choices (A or B). The applicant scored 25 or 26 out of 50 meaning she scored “random chance” (this being in the range of 18-32).¹¹⁵ On the GWMT, which is based on a word pair association (ie. pig; bacon) the applicant also scored “random chance”.¹¹⁶ These results mean that the applicant failed both tests of performance validity that Dr. Levitt’s team administered.¹¹⁷

94In his testimony, Dr. Levitt explained that scoring “random chance” could mean that the applicant withheld effort (as Dr. Dowhaniuk concluded) but another explanation, which he preferred, was that the applicant was not able to engage because she was experiencing significant pain, headaches and distress, which affected her ability to engage in testing rather than deliberate attempts at feigning impairment.¹¹⁸ Thus, Dr. Levitt concluded that the applicant was not feigning or exaggerating her psychological symptoms and pain. Rather, her low test results were attributable to “poor engagement.” Simply put, as Dr. Levitt’s also explained in his rebuttal report, the low-test results were due to [the applicant’s] pain and emotional factors.¹¹⁹

95Dr. Dowhaniuk was critical of Dr. Levitt’s conclusion on this issue and felt the term “poor engagement” did not adequately explain what was going on because in his view it took engagement in itself to sit there and choose the incorrect responses when the much more cognitively demanding or taxing path would be to choose the correct responses.¹²⁰ He was also critical of Dr. Levitt’s suggestion of explaining the scores as random chance responding because there is not an equal probability of choosing either response for these tests. In direct examination, he explained that when someone fails these tests you have to infer that all test results are artificially low and might underestimate a person’s true abilities. By extension, because now you have a bias, you also have to take a person’s self-reporting and look at it with a different lens.¹²¹

96Dr. Dowhaniuk also administered the Green Word Memory Test (GWMT) (Spanish version) which the applicant again scored low on.However, Dr. Dowhaniuk came to a very different conclusion regarding the reason for the low-test results and explained in his report as follows.

[The applicant’s] scores are well below expected levels on one such performance validity test (WMT). It is important to emphasize that individuals suffering from cognitive impairment secondary to a severe traumatic brain injury with neuroimaging confirmed evidence of brain trauma score much higher on this test than [the applicant] (who suffered at most a cerebral concussion without neuroimaging confirmed evidence of brain trauma)…simply being in an anxious or depressed emotional state does not account for such low scores on this test. Individuals suffering from severe and perhaps distracting levels of pain are also able to perform much better on this test than demonstrated by [the applicant], and as such her very low score cannot be attributed to pain distractibility. Her scores are lower than elderly adults in the advanced stages of dementia who require constant supervision and cannot live independently, which does not make clinical sense given [the applicant’s] reported level of functioning at this time or prior to the accident. The only plausible explanation for [the applicant’s] very low scores on this performance validity test is that she intentionally (and not unconsciously) withheld the effort required to perform to the best of her ability, and rather put forth the effort required to perform poorly…It takes greater effort and focus to choose incorrect responses on performance validity tests at such a high rate than is required to simply chose the correct responses.¹²² [emphasis added]

97Overall, I prefer Dr. Dowhaniuk’s explanation for the applicant’s low-test results over that of Dr. Levitt’s for three main reasons. First, unlike Dr. Levitt, Dr. Dowhaniuk used the Spanish version of the GWMT, so the results are far more reliable because they were normed for [the applicant’s] first language. Dr. Dowhaniuks’ test was also normed for pain and depression from which the applicant was suffering.

98Second, with respect to Dr. Levitt’s testing, if the applicant was experiencing significant pain, headaches and distress, or any other ailments during the assessment, I do not understand why the tests were not stopped and administered on another occasion. On a similar note, if, as stated by Dr. Levitt, the applicant did not find the interpreter to be very good, I question why the testing was never stopped and a new interpreter ordered.¹²³ The record before me showed that the applicant was never brought back for testing for either of these significant difficulties that she encountered during the testing.¹²⁴

99Third, there were serious concerns with the quality of the translation. Indeed, Dr. Levitt writes at page 17 of his report: “our interpretations are offered with caution.” Also testing was discontinued early but never completed on another day or re-administered when she was feeling better. This in light of the fact, as noted on page 15 of Dr. Levitt’s report, the applicant apparently wanted to return to finish the testing.

100I find these deficiencies in the psychological testing and inconsistencies in the test results, lack of explanation why the tests were not stopped or re-administered when the applicant was feeling better, or when there was a competent interpreter, significantly compromised Dr. Levitt’s explanation that the applicant was not able to engage in the testing due to her pain and emotional factors.

101In my view, the results of the objective tests are persuasive evidence that the applicant was withholding her effort for some reason. I was not provided any explanation for how people with dementia and people with portions of their brain missing can do this test better than the applicant was able to. The applicant’s apparent lack of effort leads me to conclude the test results were not useful in assessing the level of her impairment.

102For the above reasons, I find that the applicant’s overall level of impairment with respect to concentration, persistence, and pace can reasonably be said to fall within the Class 2 (mild impairment that is compatible with most useful function) and not the Class 4 (marked impairment) classification.

4. Adaption – Deterioration or decompensation in work or work like settings (AD)

103The 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.”¹²⁵ By definition, the focus of the analysis in this domain is on the psychological stress tolerance of the individual. Also, impairment in adaptation affects the ability to function across all activity domains, not only in work-like settings.¹²⁶

104Dr. Levitt concluded that the applicant’s impairment in this category was a Class 4 (marked) impairment because she would not be able to function at work with her mental and behavioural disorders.¹²⁷ Also, he concluded that she deteriorated by not being able to cope with cognitive testing and has been unable to engage in significant work-like activity in the church.¹²⁸ In coming to this conclusion, Dr. Levitt conducted a file review and referenced Dr. J. Murray’s report that concluded the applicant was unable to work because of her mental and behavioral disorders.¹²⁹

105I find that the evidence does not support Dr. Levitt’s conclusion that [the applicant’s] difficulty with work and church activities stems from an inability to adapt to psychologically stressful situations. Even if her difficulty with work, cognitive testing or participating in church activities was due to an inability to tolerate stress, in my view, her level of impairment did not so significantly impede useful functioning so as to amount to a Class 4 (marked) impairment. I find Dr. Levitt overrated [the applicant’s] situation in this area for the following reasons.

106First, the applicant made only one brief attempt to return to work, and provided no details about that attempt. There was no evidence from her co-workers or supervisors about her attempt to return to work. All of this could have been significant sources of data to determine the applicant’s actual work capabilities. Considering the Guides’ clear emphasis on the importance of assessing the applicant’s behavior during the attempt to work period, there was a noticeable lack of evidence and particulars in Dr. Levitt’s report and testimony, as well as [the applicant’s] own testimony, regarding her behavior and conduct when she attempted to return to work in 2013.

107Moreover, in relation to this point, the Guides also specifically talk about “failures” to return to work or “repeated failure” to adapt to stressful circumstances or the “individual efforts” during the attempt. The use of the words “repeated failures” and use of the plural word “efforts” in describing the assessment method indicates to me that what is expected in assessing an individual’s ability to function in a work setting are several examples of attempts to return to work. Here, again, we have one failed attempt to return to work. Similarly, the cognitive testing by Dr. Levitt was done on one day with no attempt to re-administer the tests despite the noted challenges. With respect to volunteering at the church the evidence established that [the applicant]. was making efforts to become more involved.

108The second reason that the evidence does not support Dr. Levitt’s finding is that the Guides also speak to the importance of obtaining evidence over a sufficiently long period of time – data gathered over a number of years are particularly useful.¹³⁰ Unfortunately, in this case, again there was only one attempt to return to work and that attempt was only a few days after the accident in late 2013. From late 2013 to mid-2017, a period of three and a half years, the applicant made no attempts to return to work of any. Therefore, I find that Dr. Levitt ultimately based his conclusion on limited and insufficient information which undermined his conclusion.

109Finally, I find that Dr. Levitt mischaracterized Dr. Murray’s conclusion, in Dr. Murray’s January 2015 report¹³¹, that the applicant was unable to work as a result of the accident, and Dr. Levitt’s reliance on that report compromises his opinion that the applicant has a marked impairment in the adaptation category. My review of Dr. Murray’s report is that although he states that the applicant has a psychological impairment that causes her to be substantially unable to perform the essential tasks of her employment, he goes on to say that once her psychological sessions have been completed a gradual return to work in a supportive environment is recommended.¹³² Indeed, Dr. Murray stated that it would be prudent to include a return to work goal as a focus of the current treatment.

110The onus is on the applicant to establish a marked impairment on a balance of probabilities. While I find the applicant has impaired functioning in the area of adaption as a result of the accident, the weight of the evidence, especially given the lack of information concerning [the applicant’s] behaviour during her only attempt to return to work, does not support a finding of a Class 4 (marked) impairment.

111The Guides provide several examples of adaptation, such as the ability to use public transportation and travel to and from unfamiliar places, to set realistic goals and to make plans independently of others.¹³³ The evidence showed that the applicant demonstrated adaptation skills in areas other than work. For example, she was able to take a public bus using a map. She travelled by airplane to the United States for a family function. The applicant testified about different strategies that she has been taught (like recipes, lists, calendar, day planners, and reminder systems) and is implementing on her own. The applicant is able to do meal preparations. The applicant never missed an assessment. The applicant did socialize with friends by going to a park and restaurants and was able to leave her home. The video surveillance demonstrated that she was able go shopping by herself and also pick out clothes to send to El Salvador which showed an ability to plan and set goals. She is able to go to the grocery store and bank. She was able to drive by herself at times that she told Dr. Levitt she was unable to do so. She was able to answer questions at the hearing including about the accident which I am certain for her was a stressful situation. All of these examples demonstrated that [the applicant] was increasingly able to adapt and implement strategies on her own and her useful functions were not significantly impeded – her impairments were not extensive or substantially impeding her useful functioning. Rather, her impairment levels were compatible with some, but not all, useful functioning.

112As a result, I find that the applicant is more appropriately assessed at the Class 2 level (mild impairment) in the area of Adaption.

Collateral Interview

113The Guides provide that information from other sources, such as family members and others who have knowledge of the patient may be useful in indicating the level of functioning.¹³⁴

114While Dr. Romero, on behalf of the applicant, completed a collateral interview with [the applicant’s] pastor, and the respondent’s experts did not, I considered and assessed this evidence in light of all the other overwhelming evidence in this case. In submissions, the applicant submitted that by not complying with this provision the respondent did not follow the methodology in the Guides. I did not agree. I did not place a lot of weight on the interview with the pastor as I did not find it very useful. It was entirely hearsay evidence, which is admissible in a tribunal setting, however, the pastor did not testify and his evidence was not subject to cross examination. Moreover, the interview was done in April 2016 (more than a year prior to the hearing) and there were changes since then during this time. It was obvious the pastor does not see [the applicant] every day and had sporadic and sometimes brief interactions with her. Also, in relation to the requirement to use information from other sources, the Guides use the word “may” as opposed to “shall” so a collateral interview is not something that an assessor must absolutely do. Finally, it would have been preferable to have a collateral interview with a member of the applicant’s immediate family who lives with her (like a daughter) who could directly speak to her severity of impairments as part of observing her daily activities over a period of time.

Conclusion:

115For the above reasons, I conclude on the balance of probabilities that the severity of the applicant’s level of impairment with respect to activities of daily living, social functioning, concentration and adaption as set out in the Guides does not constitute a catastrophic impairment pursuant to section 3(2)(f) of the Schedule.

Footnotes

1. 1At the start of the hearing, the applicant withdrew the issues regarding attendant care benefits and treatment plans.
2. 2The Emergency Department Intervention Flowsheet notes the triage time on October 24, 2013 as 6:22 am and the discharge time as 16:32.
3. 3The Schedule describes several independent categories of impairment each with their distinct criteria. The only relevant category in this case is s. 3(2)(f) or what the assessors refer to as Criterion 8.
4. 4Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at para. 30.
5. 5The word descriptors can also be converted to a percentage WPI using a table in the Guides so that psychological impairments can be combined with other impairments under the Schedule, to arrive at a final “whole person impairment, or “WPI.”
6. 6Pastore v. Aviva Canada Inc., 2012 ONCA 642 at para. 43 (“Pastore”).
7. 7FSCO A09-002443 and Applicant v Wawanesa Mutual Insurance Company, 2017 CanLII 62155 (ON LAT).
8. 8Transcripts, June 15, 2017, page 177.
9. 9Transcripts, June 15, 2017, page 177.
10. 10r. Dowhaniuk deferred the 3 remaining domains to Psychiatry and only opined as to CPP domain.
11. 11Dr. Zielinsky in his report concluded that the claimant did not have any chronic pain conditions or depressive symptoms prior to the accident and the evidence is persuasive from all sources that the current conditions are materially related to the accident. More than 2 years have elapsed.
12. 12AMA Guides 14/298.
13. 13Exhibit # 1, page 258.
14. 14Transcripts, June 14, 2017, page 83.
15. 15Transcripts, June 14, 2017, page 86.
16. 16AMA Guides, 14/298.
17. 17Pastore at para. 6.
18. 18Transcripts, June 15, 2017, page 194.
19. 19The AMA Guides direct the assessor to use the current version of the DSM.
20. 20Exhibit #1, page 36
21. 21Exhibit #1, page 276.
22. 22Exhibit #1, page 845.
23. 23Dr. Biederman was not retained to provide an opinion on the issue of catastrophic impairment.
24. 24Transcripts, June 12, 2017 page 92 and Exhibit # 1, page 419.
25. 25Exhibit # 1, page 176.
26. 26Transcripts, June 15, 2017, page 127.
27. 27Transcripts, June 15, 2017, page 151.
28. 28AMA Guides, 14/298.
29. 29Transcripts, June 13, 2017, page 3.
30. 30Transcripts, June 13, 2017, page 4.
31. 31Transcripts, June 13, 2017, pages 9-10
32. 32Transcripts, June 13, 2017, page 10.
33. 33Transcripts, June 13, 2017, page 33.
34. 34Transcripts, June 13, 2017, page 24,
35. 35Exhibit #1, page 269.
36. 36Loss of consciousness.
37. 37Exhibit #1, pages 415 and 517.
38. 38Transcripts, June 12, 2017, page 54.
39. 39Transcripts, June 13, 2017, page 35.
40. 40Transcripts, June 13, 2017, page 35.
41. 41Transcripts, June 13, 2017, page 35.
42. 42Transcripts, June 15, 2017, page 132.
43. 43Transcripts, June 13, 2017, page 36.
44. 44Exhibit #3.
45. 45Transcript, June 13, 2017, page 38.
46. 46Transcripts, June 13, 2017, page 38.
47. 47Transcripts, June 12, 2017, pages 53-54.
48. 48Exhibit #4.
49. 49Transcripts, June 13, 2017, page 94.
50. 50Transcripts, June 15, 2017, pages 64-65.
51. 51Exhibit #1, page 23.
52. 52Exhibit #1, page 174.
53. 53Exhibit #1, page 276.
54. 54Exhibit #1, page 260.
55. 55Transcripts, June 13, 2017, page 102.
56. 56The applicant failed the GWMT and TOMM.
57. 57Exhibit #1, page 221.
58. 58AMA Guides, page ½ and 317 includes a Table of examples.
59. 59Transcripts, June 13, 2017, page 68.
60. 60Transcripts, June 13, 2017, page 18.
61. 61Transcripts, June 13, 2017, page 25.
62. 62Transcripts, June 13, 2017 at page 13.
63. 63Transcripts, June 13, 2017, page 24.
64. 64Transcripts, June 13, 2017, page 122.
65. 65Exhibit #1, pages 23 and 29.
66. 66Exhibit #1, page 25.
67. 67Exhibit # 1, page 709. Ms. O’Neill also prepared an Occupational report dated November 2, 2016.
68. 68Exhibit # 1, pages 718-720.
69. 69Transcripts, June 13, 2017, pages 120 - 121.
70. 70Transcripts, June 13, 2017, page 121.
71. 71Transcripts, June 14, 2017, page 105.
72. 72Transcripts, June 12, 2017, page 91.
73. 73AMA Guides 2/10 and 14/199.
74. 74AMA Guides 14/299.
75. 75Transcripts, June 14, 2017, page 120.
76. 76Transcripts, June 14, 2017, page 120.
77. 77Transcripts, June 15, 2017, page 106.
78. 78AMA Guides pages 14/300-301.
79. 79AMA Guides page 14/294.
80. 80Exhibit # 1, page 27.
81. 81Transcripts, June 13, 2017, page 34.
82. 82Transcripts, June 13, 2017, page 34.
83. 83Transcripts, June 12, 2017, page 91.
84. 84Transcripts June 13, 2017, page 91.
85. 85Transcripts, June 13, 2017, page 30.
86. 86Exhibit #1, page 473.
87. 87Exhibit # 1, page 473.
88. 88Exhibit #1, page 473.
89. 89Exhibit #1, page 479.
90. 90Exhibit #1, page 458.
91. 91Transcripts, June 13, 2017, page 25.
92. 92Transcripts, June 13, 2017, page 16.
93. 93Transcripts, June 13, 2017, page 12.
94. 94Transcripts, June 13, 2017, page 13
95. 95Transcripts, June 13, 2017, pages 13-14.
96. 96Transcripts, June 13, 2017, page 123.
97. 97Exhibit #1, page 180.
98. 98Exhibit # 1, page 27.
99. 99Exhibit # 1, page 28.
100. 100Transcripts, June 14, 2017, page 128.
101. 101Exhibit # 1, page 451.
102. 102AMA Guides, 14/294.
103. 103Exhibit #1, page 175.
104. 104Transcripts, June 15, 2017, page 65.
105. 105Exhibit #1, page 197.
106. 106Transcripts, June 15, 2017, page 65.
107. 107Transcripts, June 13, 2017, page 12.
108. 108Transcripts, June 13, 2017, page 26.
109. 109Transcripts, June 13, 2017, page 30.
110. 110Transcripts, June 13, 2017, page 61.
111. 111Transcripts, June 13, 2017, page 67.
112. 112Transcripts, June 15, 2017, page 84.
113. 113AMA Guides, 14/298.
114. 114Transcripts, June 14, 2017, page 16.
115. 115Transcripts, June 14, 2017, page 49.
116. 116Transcripts, June 14, 2017, page 146.
117. 117Exhibit #1, page 23 and Transcripts, June 14, 2017, page 48.
118. 118Exhibit #1, page 37 and Transcripts, June 14, 2017, page 65.
119. 119Exhibit # 1, page 132.
120. 120Transcripts, June 15, 2017, page 81.
121. 121Transcripts, June 15, 2017, page 73.
122. 122Exhibit # 1, pages 201-202.
123. 123Transcripts, June 14, 2017, page 51.
124. 124Transcripts, June 14, 2017, page 141.
125. 125AMA Guides, 14/294.
126. 126AMA Guides, 14/294.
127. 127Transcripts, June 14, 2017, page 72.
128. 128Transcripts, June 14, 2017, page 131.
129. 129Transcripts, June 14, 2017, pages 62 and 130.
130. 130AMA Guides, 14/293.
131. 131This report should have been dated 2014.
132. 132Exhibit # 1, page 846.
133. 133AMA Guides, 14/295.
134. 134AMA Guides, 14/293.