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:
[The Applicant]
Appellant(s)
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR: Meray Daoud
APPEARANCES:
Applicant: [The Applicant]
Counsel for the Applicant: Bryan Sansom
Counsel for the Respondent: Ruby Tatla Tusar Tangri
HEARD: Oral Hearing: February 25, 26 & 27
OVERVIEW
1The minor applicant, [the applicant] was involved in a tragic accident on March 7, 2013, where at six years of age, along with his five-year old friend and his elder sister, was struck by a garbage truck and witnessed the unfortunate death of his five-year old friend. The applicant sought benefits from the respondent, pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). The insurer paid statutory accident benefits to [the applicant] under the non-catastrophic guideline limits. The applicant’s claim for further statutory accident benefits was denied by the respondent and the applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve the matter.
ISSUES IN DISPUTE
2The issues before me are:
a) Did the applicant sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident?
RESULT
3Based on the totality of the evidence before me, I find that:
a) The applicant has sustained a catastrophic impairment within the meaning of the Schedule as a result of the accident?
ANALYSIS
Catastrophic Impairment Designation:
4The applicant submits that he is entitled to a Catastrophic Impairment (CAT) designation as he has sustained a class 4 “marked” impairment in one of the four domains set out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides)2; namely; Adaptation3 specifically within the school setting.
5The burden of proof rests with the applicant. He must prove on the balance of probabilities that, as a result of the accident, he sustained a CAT impairment, as defined in clause 3(2)(f) of the Schedule:
(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.
6Under the Schedule, “impairment” means “a loss or abnormality of a psychological, physiological or anatomical structure or function.”
7The Ontario Court of Appeal in Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 4 confirmed that the test of CAT impairment is a legal test and not a medical test.
8A person is considered to be CAT impaired if he or she is found to have a class 4 “marked” impairment, in domains of function that preclude useful functioning, in accordance with the Guides, due to mental or behavioural issues. This is referred to as “criterion 8”.
9It is important to note the difference between the classes. Class 3, impairment levels are compatible with some, but not all, useful functioning. On the other hand, class 4 impairment levels significantly impede useful functioning.
10The method used to determine which class the applicant’s impairments fall into, an assessor assigns a level of impairment to the domains of functioning, which are:
- activities of daily living (ADL),
- social functioning (SF),
- concentration, persistence and pain (CPP); and
- adaptation (AD).
11Impairment in the domain of AD is defined in The Guides 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”.5
12It 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 overturned the Divisional Court’s decision, confirming 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.
13Within the parties’ hearing briefs, multiple medical records and reports were submitted. There were also a number of witnesses who testified at the hearing. This evidence was reviewed and considered in coming to this decision. I will be referring to specific medical records and testimony below.
Pre-accident:
14Prior to the subject accident, the applicant’s medical history is fairly unremarkable. There are no significant health issues noted in the medical records before me.
15With respect to the applicant’s academic history, he was a grade 1 student at the time of this accident.
16The applicant had a referral to an occupational therapist in September 2011, when he was in senior kindergarten and an Occupational Therapy School Assessment dated June 18, 2012 was completed. The reason for referral is stated as letter formation and pencil grip. The OT’s analysis stated that the applicant is an SK student who is having difficulty with written output due to underdeveloped fine motor skills and inefficient pencil grip and poor pencil control.
17His pre-accident report card dated November 12, 2012 from grade 1 shows that the applicant received a grade of “Needs Improvement” (N), in the areas of responsibility, independent work, initiative and self-regulation and “Satisfactory” (S), in organization and collaboration. His teacher comments that he has had difficulty adjusting to the grade 1 program, she notes that goals needs to be set for listening attentively and completing assignments and that he often needs reminders to focus when the lesson is being taught and to remain on task when working.
18This report card also shows that he received “progressing with difficulty” in the subjects of language, math, health education and physical education, and “progressing well” in the subjects of science and technology, social studies, drama and music. The applicant’s teacher notes that the applicant appears to be struggling with expectations of reading, writing, spelling literacy at the grade 1 level, difficulty in understanding math concepts and that there is a lack of participation fully during physical activities. She also notes that he needs to continue to work on his fine motor printing skills.
19A further pre-accident report card dated February 11, 2013 was also provided for grade one. The applicant received a grade of “N” in the areas of independent work, initiative, organization and self-regulation, and a grade of “S” in the areas of responsibility and collaboration. The applicant received grades with the “C” range in the subjects of language, science and technology and social studies. He received a mix of “C” and “D” grades in the areas of math and physical education. The applicant also received a mix of “B” and “C” grades in the subject of the arts.
20Within his report card his teacher notes that the applicant is adjusting to the demands of grade 1 with some difficulty, that he requires reminders to stay on task. She notes that he cooperates and works well with others in small groups and that he benefits from work accommodations such as a reduced number of math questions and usually requires one-on-one assistance when new learning is introduced. His teacher also notes difficulty within the different subject areas.
21The applicant’s mother testified at the hearing and stated that prior to the accident, the applicant was a social child, playful and always with his friends. She stated that the applicant had some adjustment issues with language due to the fact that he mostly spoke Italian at home, with his grandmother who would look after him. She also stated that an Occupational Therapist referral was made when he was in kindergarten to assist him with gripping pencils and such. She states that she was never told by anyone prior to the accident that he had a learning disability and no Individual Education Plan (IEP) was being considered. The applicant’s mother stated that his grade 1 teachers did mention difficulty with paying attention in class, but they attributed it to his friends he was always with and they had to separate them.
22The minor applicant also testified at the hearing, with some difficulty in recalling and precisely answering the questions posed to him. He stated that prior to the accident he had friends at school, he enjoyed playing basketball and that he spoke Italian at home with his grandmother. He testified that he slept alone and sometimes in his parent’s room, that he thinks he would practice reading with his mom after school. The applicant stated that he believed he may have had a few nightmares prior to the accident.
Post- accident:
23On the date of this accident the applicant was taken to SickKids hospital, by ambulance, for assessment. He sustained an abrasion to his head and diagnosed with a head injury. He was discharged from the hospital on the same day.
24Following the accident, the applicant began to exhibit issues with his behavior and possible post-concussive symptoms, both at home and school. He began to exhibit issues with disrupted sleep, nightmares, diminished appetite, poor concentration and limited attention span, headaches, irritability and reduced stamina.
25The applicant’s mother testified that after the accident the applicant experienced bad nightmares, developed stress and anxiety, became more closed off, was very attached to her and developed repetitive obsessive compulsive behaviours or rituals. She went on to say that after the accident she would have to help him clean off after using the bathroom and that he got bullied at school for repeating himself often. She notes that the applicant became withdrawn, is very fidgety, doesn’t socialize much as he only has acquaintances now rather than friends. She went on to say that he spends a lot of time with his parents and family.
26With respect to school, the applicant’s mother stated that the applicant didn’t like attending school much, that the teachers lessened his homework and that they switched him from the current school to another one in hope that it would help him. She noted that the Occupational Therapist, Ms. Condello, who was helping the applicant noted some memory issues and that it took him a longer time to have things explained to him, that he lapsed in reading and his difficulty in fine motor skills seemed to have gotten worse. She also stated that he does not go out for recess when at school, and if he does, he will only stand in line and often the teachers allow him to just stay inside the classroom with them.
27Again, the minor applicant struggled in recalling exact answers to many of the questions posed to him. The applicant did testify that after the accident he would sleep in his bed and sometimes in his parent’s bed, because he would have nightmares and that he would sometimes need to keep the TV on to fall asleep to feel like someone was there. He stated that he developed a habit of saying goodbye to his mother before she left for work and if he didn’t get a chance to, he would be sad or disappointed. He also stated that after the accident developed a habit in his bedroom where he would spin and look around and this was because he was a little worried he dropped something, and he does not like to lose things. The applicant stated that now he just looks at the door and walks away.
28He stated that after the accident he didn’t get as much homework as the other children, didn’t know if he got the same or different testing than other children. He stated that he went through bullying in school because of the way he spoke, repeating things often. He testified that he enjoyed his home room class as the people are nice and he gets help with his work but that he also gets help in his rotary classes when he needs it. The applicant also stated that he enjoys hanging out with his dogs and family, making clay models, playing video games and watching TV. He stated that he goes to see his sister and brother and their children regularly but rarely plays with his friends anymore. He further testified that he taught himself to play the keyboard and that he sometimes takes the bus home from school by himself.
29The applicant stated that he sees Ms. George and she sometime helps him with homework, or they go out and have chats. He testified that he thinks that we would be able handle his rotary classes without his home room teacher’s help but at the same time he does need help once in a while.
30After the accident, the applicant was placed on an IEP in October 2013 for grade 2, not formally identified as an “exceptional” but requires special education, in order for him to receive additional supports within his classes. The IEP states that his placement would be in a “Special Education Class with Partial Integration” with “Underachieving in Literacy and Numeracy” as the educational rationale.
31In following years, grades 3, 4 and 5 similar IEP’s were put in place for the applicant.
32In September 2017, in the applicant’s grade 6 academic year, he was placed on a formal IEP being identified and an “exceptional learner” by the IPRC, and his exceptionality was identified as a “Learning Disability”. His placement was for “Special Education Class with Partial Integration”. The applicant continued to have a formal IEP in his current school year, grade 7.
33Multiple post-accident report cards were produced. These report cards show stability and some improvement in the applicant’s performance and grades in some areas, including positive feedback from his teachers.
34The applicant’s special education teacher, Ms. Barlow, testified at the hearing. She testified that she runs what is known as a home school program at the applicant’s current school. She stated that has been the applicant’s teacher since grade 4 and he has had IEP’s in place all along. Ms. Barlow testified that her home school class is for children with learning disabilities, not necessarily formal or informal, but those who struggle in school. She explained that there are eight students in her class from different grades and that she is their homeroom teacher, they spend half a day in her class, this is known as “partial integration”. Ms. Barlow testified that she does a modified IEP which is usually two grades below level.
35She stated that the applicant attends her class in the morning, and the second half of the day he attends his regular rotary classes. She went on to say that although the applicant is technically in grade 7, the IEP she has in place for him in math, which is about a grade 5 level and language is about grade 5-6 level. She stated that the applicant is also on a modified program in his rotary classes as well, but at grade level. Ms. Barlow stated that she is able to give each student more focused attention in helping them because there are few of them. She testified that with the applicant’s rotary class modifications, for example, he is able to take his science tests and writes them in her room, open book and questions that are considered too difficult for him he does not have to do. She also can assign homework, but it is not mandatory for them to do it. Ms. Barlow stated that with tests if she is unavailable, the rotary teachers will assist the applicant, they will help him write out long answers for example, give him notes and tell him exactly what to look at to answer the questions and so forth.
36Ms. Barlow testified that in circumstances where the applicant takes his tests and writes them in her class, she will give him a chance to answer the questions on his own, he may ask for help and she will prompt him, and he would struggle more and she would then possibly show him where in the notes he can look to find the answer. She states that she is able to sit with him and give him the help he needs. Ms. Barlow testified that he struggles with attention and depending on the assignment or work he is doing, he may not be able to concentrate on something for long before requiring a break. She stated that if he is enjoying what he is working on he is prone to longer concertation. She further stated that she notes that he can get stressed or anxious while doing certain work, for example a math quiz and that he would have to get up and walk around as he would require a break.
37She believes without all these supports and modifications the applicant would easily fall behind. She testified that he constantly needs someone whom he is comfortable with to guide him and reassure him, just to even get through the day. She stated that he does have a few friends at school but that he’s a quiet boy and he doesn’t go to recess very often, he would rather stay inside and when he does go out, she will notice him standing on his own.
38The applicant’s mother testified that she believes that the applicant would not be able to do well at all in his regular rotary classes in the absence of any support that he is currently getting.
Post- Accident Medical Evidence:
39Following the accident, the applicant was seen by multiple mental health professionals including, Dr. Rumney, Senior Physician Director Brain Injury Rehab Team at Holland Bloorview, Dr. McKinnon, Neuropsychologist, Noha George, Social Worker, with whom he attended weekly/bi-weekly psychotherapy sessions and was referred to CAMH for assessment and treatment. He was also being followed by an Occupational Therapist.
40Dr. Rumney diagnosed the applicant with a mild traumatic brain injury on June 14, 2013. Dr. Rumney also opined that the applicant is demonstrating issues relating to posttraumatic stress disorder.
41Dr. Leong, at CAMH, diagnosed the applicant with Post Traumatic Stress Disorder and Obsessive-Compulsive Disorder in her psychiatric assessment of October 1, 2014. Dr. Leong conducted an interview with the applicant, with the applicant’s parents as well as with the applicant and his parents together.
42The applicant was referred to Dr. McKinnon initially in October 2013 for neurocognitive testing where she completed a thorough assessment, administered multiple tests and conducted a clinical interview with his parents.
43Dr. McKinnon assessed the applicant again in 2014 and produced a Neurocognitive and Psychoeducational Assessment Report dated May 20, 2015. As part of this assessment Dr. McKinnon reviewed numerous medical records, conducted a thorough assessment of the applicant, including administering multiples tests as well as a comprehensive clinical interview with the applicant’s parents, as well as gathered collateral data from the applicant’s teachers.
44Within this report Dr. McKinnon opines that the testing confirms a pronounced learning disability that is negatively impacting the applicant’s learning and consolidation of literacy and numeracy skills. She also opines that she is continuing to see more marked psychological symptoms and persisting adjustment difficulties that are taking the shape of Obsessive-Compulsive Disorder. Dr. McKinnon states that the applicant adjustment difficulties now extend beyond the post-traumatic symptoms in response to the traumatic experience of this accident and the death of his young friend.
45Dr. McKinnon opined that it is quite clear that the accident and the complex neurocognitive and psychological sequalae have undermined the applicant’s developmental progression and his academic progress. She notes that while there is some evidence that prior to the accident the applicant required some added support in school with respect to his fine motor skills, in her opinion, the accident contributed in a very significant way to the applicant’s current challenges.
46Dr. McKinnon opined that the applicant meets the criteria for Catastrophic Impairment as he demonstrates a marked level of impairment in his School Adaptation (AD). She states that this is reflected in the high level of supports required and the significant gap in his academic sill development. She goes on to say that the has been identified as have in a learning disability that require more support in school as well as at home.
47Dr. McKinnon found that the applicant only had a moderate impairment in the sphere of Activities of Daily Living (ADLs), no impairment in the sphere of Social Functioning (SF) and a moderate to marked impairment in concentration, persistence and pain (CCP).
48Dr. McKinnon writes that when compared to the baseline estimates obtained just over a year prior, that the current testing highlights a pattern of neurocognitive recovery and developmentally appropriate acquisition of skills. She goes on to say that these improvements are emerging however, in a context of some persisting neurocognitive compromise and learning challenges which continue to have pronounced impact on his ability to effectively engage and benefit from in class learning opportunities. Dr. McKinnon writes that there are more marked psychological symptoms which have been identified as OCD. She states that there are generalized effects on the applicant’s ability to focus and attend, limits on his social pragmatic and reasoning skills as well as the functional in the areas or motor coordination and production.
49Dr. McKinnon sates that even in the context of ongoing neurocognitive recovery, the fact that the applicant continues to struggle academically despite access to accommodations and supports highlights the extent in which the residual neurocognitive compromise is attributable to his traumatic brain injury and the persisting psychological symptomology are disrupting his academic progress. She expresses concern in that the nature of the applicant’s injuries and the resulting neurocognitive sequalae together with the significant psychological adjustment issues raise concern with respect to his ability to catch up to peers, as is clearly evidenced to the extent of which they are undermining his growth and learning.
50During her testimony at the hearing, Dr. McKinnon testified that these assessments, such as that of May 2015 are quite extensive and usually take 6 hours or so. She went on to comment on the applicant’s struggle in adapting to the grade 1 curriculum prior to the accident and stated that sometimes there are issues with children adjusting to the more formal set up of grade 1 versus that of the more play-oriented SK classroom.
51Dr. McKinnon testified that when the applicant is receiving all the supports and modifications in school which he receives, he is starting to manage the curriculum, however this is still well below his age and grade level. She went on to say that when assessing him for catastrophic impairment she has to consider how this person would function in the absence of the supports and accommodation which he is receiving. She likened this to how a depressed person might function without access to anti-depressants, to a schizophrenic might function without the benefit of neurotropic medication.
52Dr. McKinnon testified that she believes that in the absence of the supports and intervention he is receiving, that the applicant would have struggled and become avoidant and this would have further compounded his adaptation in the classroom.
53Dr. McKinnon testified that children with OCD are notoriously known to downplay their concerns as they are highly embarrassed, ashamed and a lot of their behaviours do not make sense to them. She states that they try to obscure and not endorse such things, especially when speaking to clinicians, they do not understand that their insight is so poor.
54In cross examination, a consultation report by Dr. Adler-Nevo, Psychiatrist, dated December 11, 2015 was put to Dr. McKinnon. She testified that she did not review this report in completing her 2015 report, or the rebuttal reports thereafter. Within this report, Dr. Adler-Nevo concluded that the applicant did not meet the criteria for OCD and PTSD and that the applicant’s past diagnosis of a learning disability, ADHD, OCD and his symptoms were most likely not caused by the accident. When questioned about not considering this report in coming to the conclusion that the applicant sustained a catastrophic impairment, Dr. McKinnon conceded that she did not have an opportunity to review it at the time but nonetheless she has confidence in her own diagnostic formulation.
55Further rebuttal reports and assessments were also produced by Dr. McKinnon in the following years, confirming and reiterating her findings that the applicant sustained a catastrophic impairment.
56In November 14, 2018, Dr. Rumney provided a consultation report wherein he reviewed Dr. McKinnon’s assessment report of January 18, 2018. Dr. Rumney states that after his review he concurs with Dr. McKinnon’s assessment findings and formulations with respect to a mild neurocognitive disorder, specific learning disability, PTSD and OCD diagnosis, which he believes, if not wholly caused by the motor vehicle accident have been significantly exacerbated or worsened because of it.
57The respondent relies on the findings of Dr. Valentin, Neuropsychologist in her Neuropsychology Assessment Report dated October 31, 2015. Dr. Valentin’s assessment was based on review of multiple medical and other records, collateral interview with the applicant’s mother, clinical assessment of the applicant as well as psychometric testing.
58In Dr. Valentin’s opinion, from a neurocognitive perspective, she states that the applicant presents with a diagnosis for a mild neurocognitive disorder, pre-existing, likely exacerbated by the subject accident. She goes on to say that there are indications of delay development of motor abilities as well as academic skills acquisition prior to the accident and the it is likely that the applicant had a learning disability prior to the accident. The subject accident likely exacerbated his cognitive defects and that if he did sustain a traumatic brain injury, it was mild.
59Dr. Valentin writes that from a psychological perspective, based on review of documentation and collateral interview with the applicant’s mother and other testing, that his mother reports symptoms related to separation anxiety disorder and OCD. She goes on to say that given the applicant’s indications that he is not experiencing significant symptoms related to anxiety and other psychological or behavioral difficulties it is unclear if he presently meets all required criteria for these diagnoses. Dr. Valentin opines that from a psychological perspective, the psychological difficulties suggested are believed to be a direct result of the accident.
60She states that from a psychological perspective she concurs with the diagnosis/impairment provided by various health practitioners/ professionals to date, however there are improvements. From a neurocognitive perspective, she writes that previous assessors seem to have downplayed his pre-accident academic, motor and attention problems.
61Dr. Valentin found that the applicant had a moderate impairment in the domains of ADLs, CPP, and AD as well as a mild impairment in the domain of SF. She did not find the applicant to have sustained a catastrophic impairment.
62Dr. Valentin writes that she disagrees with Dr. McKinnon’s findings that the applicant sustained a marked impairment in the area of AD in school as his report card of February 10, 2015 showed good performance in multiple areas and that his grades and learning skills seems to be better than before the subject accident.
63Dr. Valentin also testified at the hearing. In cross examination she was questioned with respect to the notation within her report of October 2015 where she writes “of note, as testing was quite abbreviated due to time constraints on the present assessment, academic/achievement testing was not completed at this time, as such the present neurocognitive result can not directly speak to the presence or absence of difficulties related to specific learning disabilities”. Dr. Valentin states that she was requested to do a neuropsychological assessment and it would have been outside the referral to do academic testing here as it would be done as part of a psychoeducational assessment. She testified that she had access to his report cards so it was not necessary to assess these academic an achievement skill levels.
64Dr. Valentin also testified that she did not speak to the applicant’s teachers to provide them with questionnaires to receive feedback on the applicant’s academics and that his functioning was based on a review of Dr. McKinnon’s results, in relation to the teachers, as well as his IEP’s and report cards.
65Dr. Valentin testified that she did not diagnose the applicant with a pre-existing learning disability prior to the accident, but rather that she indicated that he likely had a learning disability given the pre-accident school records and the pre-accident to report referencing issues with fine motor skills.
66She also testified that she did take into consideration the accommodation and supports that are in place for the applicant in her assessment.
67Dr. Valentin also completed additional rebuttal reports after this assessment, reviewing further documentation. These reports reiterated her finding that the applicant did not sustain a catastrophic impairment.
68After review of the evidence, I prefer the findings of Dr. McKinnon over that of Dr. Valentin. I find that Dr. McKinnon’s assessment is quite comprehensive and insightful. The inclusion of academic and achievement testing within this report provides a fulsome assessment which would lead to sound conclusions.
69I find it to be an advantage that Dr. McKinnon has had more opportunity to spend time with the applicant in assessment prior to the 2015 Catastrophic Assessment and also that the significant length of time spent with the applicant within each assessment, to gain his trust and comfort, is of great importance for such a young applicant. This is in addition to the collateral clinical interviews and data collected, which in my view, are a great aid in understanding the nature of the impairment of a minor.
70I do not take Dr. McKinnon’s involvement in the applicant’s treatment and working to have his school provide accommodations and supports to be a negative, nor do I find it to taint the objectivity of Dr. McKinnon’s opinions and assessment.
71I also found that the oral evidence of Dr. McKinnon to be credible and in support of the evidence of the applicant.
72I find that there is sufficient evidence before me to come to the conclusion that the applicant’s mental behavioural impairments are directly caused by the subject accident.
73There is no pre-accident medical evidence before me that shows that the applicant suffered any mental or behavioural disorders or impairments prior to the accident.
74Albeit, there was evidence of difficulties in some areas within school prior to the accident, however, this evidence, in my view, is not enough to conclude that the applicant had a learning disability [prior] to the accident that just may not have been diagnosed or that he suffered from a neurocognitive or psychological impairment.
75It is important to note that this accident occurred at a very tender age for the applicant. He was merely beginning his school career and I echo Dr. McKinnon in that the adjustments from kindergarten to regular school is one that may be difficult. With that said, I, nor can any of the parties or medical professionals involved in this case, cannot speak with any certainty as to what may have come of the applicant’s difficulty in school had this accident not occurred. I can only speak on the entirety of evidence that is before me, and on a balance of probabilities, I find that the applicant sustained a mental and behavioural impairment, as a result of this accident.
76I also found the testimony of the applicant and lay witnesses credible and consistent with previous reporting and the medical evidence.
77The testimony of the applicant’s special education teacher provided great insight into the school life of this young boy. It allowed for a fulsome picture into the functioning of the applicant in this school setting, including his day to day struggles, limitations and progress. In my view, the person who is with him the most within the school setting is the best person to provide this insight.
78I agree with the applicant in that the reporting of some improvement with respect to the applicant’s school performance must be looked at from the lens of the great supports he is receiving. Even then, based on his special education teacher, he is still not performing at grade level, despite these supports. It is not enough to say that his grades may be steady or even slightly improving compared to prior to the accident. This indeed would be an incorrect comparison.
79I find that his neurocognitive and psychological impairments have severely impacted the applicant’s functioning and academic progression. They have caused difficulty in the applicant’s ability to cope with the stress and expectations in the school setting and in completing tasks therein. This is evidenced by the need for the numerous modifications and supports which have continuously been in place since this accident. I share the view that had these supports not been in place that the evidence would lead me to believe that he would not fair well within the school setting, nor would he be able to make any such progress.
80I find that the evidence before me and testimony heard throughout the hearing support the applicant’s catastrophic impairment determination. I find that he suffers from serious mental and behavioural impairments which significantly impede his functioning, within the domain of Adaptation, specifically in the school setting.
81Based on the totality of the evidence before me, I find the applicant has proven on a balance of probabilities that he has sustained a catastrophic impairment as a result of the subject motor vehicle accident.
CONCLUSION
82I find that the applicant sustained a catastrophic impairment as a result of the accident and is entitled to the expanded benefits that accompany such a designation.
Released: September 26, 2019
___________________________
Meray Daoud
Adjudicator
Footnotes
- O. Reg. 34/10.
- Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993, at Ch. 14. [“Criterion 8”]
- Guides, at s. 14.3, pg. 294. The full domain name for “Adaptation” is actually: “Deterioration or decompensation in work or work like settings.”
- Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571
- Guides, p. 14/294
- Pastore v. Aviva Canada Inc., 2012 ONCA 642