M.H. v. CUMIS General Insurance Company, 2019 CanLII 122725

Citation: M.H. vs. CUMIS General Insurance Company, 2019 ONLAT 18-007610/AABS

Tribunal File Number: 18-007610/AABS

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

Between:

M.H.

Applicant

and

CUMIS General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Craig Mazerolle

APPEARANCES:

Representative for the Applicant:

Rebecca Wissenz, Counsel

Representative for the Respondent:

Peter Durant, Counsel

Held by Written Hearing:

April 30, 2019

OVERVIEW

1On November 28, 2016, the applicant was hit by an SUV while walking to work. To assist in his recovery, the applicant sought medical and income replacement benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule¹ (the “Schedule”). When the respondent refused to pay for these benefits, the applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

2As I will explain below, I find that the applicant is entitled to an ongoing income replacement benefit. He is not entitled to the disputed medical treatment plans.

ISSUES

3The benefits at issue are as follows:

(i) $327.08 per week for an income replacement benefit for the period of July 6, 2018 to date and ongoing;

(ii) $2,525.77 for physiotherapy services recommended by Main Street Health (in a treatment plan submitted on October 25, 2016);

(iii) $1,861.46 for psychological treatment recommended by Trauma and Rehabilitation Services (in a treatment plan submitted on January 12, 2018); and,

(iv) $2,094.00 for a psychological assessment recommended by Dr. Fulton (in a treatment plan submitted on August 21, 2017).

4The applicant is also requesting interest.

ANALYSIS

Income Replacement Benefit

5Section 5(1) of the Schedule states that an insured person is entitled to an income replacement benefit if they are employed at the time of the accident and sustains an accident-related impairment that causes “a substantial inability to perform the essential tasks of that employment”. Then, at the 104-week mark after the accident, s. 6(2)(b) states that an insured person will be entitled to continuing payments if accident-related impairments cause “a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”

6The 104-week mark after the applicant’s accident is November 26, 2018.

Parties’ Positions

7According to the applicant, the medical evidence is clear that he “is incapable of returning to the labour market in any capacity” due to his accident-related pain and significant psychological impairment. This medical evidence includes the medical report from Drs. Parkinson and Krasnik (dated December 7, 2018), wherein the assessors concluded that the applicant’s already restricted pre-accident employability had been further limited by the accident. The applicant also highlighted the significant prejudice he has experienced since his income replacement benefit was stopped in July 2018.

8The respondent challenged the applicant’s position by relying on its insurer’s examinations. Specifically, its examiners not only found that the applicant was able to return to work, but that he wanted to return. The respondent also noted contradictory responses from the applicant, as well as the relatively minor nature of the accident.

Details of Pre-Accident Employment

9To determine whether the applicant suffers from a “substantial inability” to perform the essential tasks of his pre-accident employment, I must first identify what these tasks are.

10The respondent submitted that the applicant has provided little to no information about his pre-accident employment. That is, according to the respondent, the only evidence that has been tendered to date is an OCF-2, “Employer’s Confirmation Form” (dated December 5, 2016). In this form, the applicant’s former employer described the essential task of being a security guard as “observe and report”.

11I do not accept the respondent’s argument on this point, as the insurer’s own examination reports included detailed accounts of the applicant’s self-reported job duties. For instance, its two psychological assessments provided the following details about his pre-accident tasks: responding to shoplifting and lost children; interacting with the public and coworkers; preparing reports for the police; and performing computer work. The insurer’s physiatry assessment then added that he was required to run and take down individuals accused of shoplifting, while the neurology assessment noted that he was expected to be “on foot and walking for up to 15 hour days”.

12Also, in the applicant’s medical report, Drs. Parkinson and Krasnik stated that his pre-accident work required him to be likeable and capable of learning and performing repetitive tasks.

13Finally, the applicant described his pre-accident employment as follows in the OCF-1: “As a Security guard I do walking for 12 Hours 5 days a week[.] I performed on site call, physically do arrest, foot chase…”

14Taken together, I find that the essential tasks of the applicant’s pre-accident employment as a security guard are as follows: standing and walking for long periods of time; occasional running; detailed observation of his workplace for long periods of time; regular use of basic computer and writing skills; and regular interactions with the public and his coworkers.

15Aside from the physically demanding nature of the job, the applicant’s employment also required a moderate to high level of cognitive acuity (e.g., tasks like detailed observation, report-writing, etc.). Further, successfully interacting with the public and the police requires a consistent level of psychological stability. Therefore, with medical records evidencing significant cognitive and psychological deterioration following the accident, I am satisfied that the applicant has demonstrated that his accident-related impairments caused a substantial inability to perform these essential aspects of his pre-accident employment.

16The records from the applicant’s family physicians consistently documented ongoing concerns with his mood and concentration levels. For instance, according to a clinical record dated December 30, 2016, the applicant reported suffering from “Mood down, depressed, frustrated, angry”. He also described his decision to take up smoking again as a “self-harm behaviour”. Following this evaluation, the family physician diagnosed the applicant with Adjustment Disorder, and suggested that he engage in counselling.

17The family physicians’ records continued to mention these psychological and cognitive issues throughout the coming months, including a particularly detailed note by Dr. Kenya Bracken on July 21, 2017:

Still having much trouble, mostly with word finding difficulties… This embarrasses him and makes him feel very down. Struggling to find solace, little support… Not sleeping wel [sic] but when using the above meds is very fatigued and makes him feel very light headed. Not suicidal but is struggling with overwhelming sadness. Not able to do anything, eaisly [sic] overwhelmed and cannot concentrate.

18Then, in November 2017, Dr. Bracken completed an application for the Ontario Disability Support Program (“ODSP”), wherein she noted that the applicant suffered from: Post-Traumatic Stress Disorder; Concussive Syndrome; Depressive Disorder (with anxious distress); daily pain; and mild neurocognitive issues involving “impaired memory, task completion, concentration, [and] diminished cognitive ability”. The cognitive and psychological conditions were then linked to the accident, with a specific note about how he is “[u]nable to perform basic tasks of previous job in security”.

19Of particular note, the ODSP application required Dr. Bracken to identify limitations that the applicant was suffering from in regard to “his or her personal care, function in the community and function in a workplace.” The only task that was rated as Class 4 (i.e., severe or complete limitations on most occasions) was: “Attention span is sustainable and appropriate to task”.

20An application for Canada Pension Plan-Disability benefits was also submitted by Dr. Bracken around this time. Much of the same conditions that formed the basis of the ODSP application were repeated in this form, as well as some additional information about his functional limitations (e.g., difficulties filling in reports and applications).

21On February 14, 2018, an adjudicator from ODSP determined that the applicant was a person with a disability. Much of this decision rested on the psychological and cognitive issues reported by Dr. Bracken, as the adjudicator noted that “impairments associated with musculoskeletal pain… are deemed not substantial at this time.”

22I would also note that similar cognitive issues were self-reported during the applicant’s interview with the respondent’s psychological assessor, Dr. Monique Costa El-Hage. For instance, he reported “difficulty maintaining attention”, as well as issues with short-term memory. The applicant also reported that he had avoided contact with his work colleagues and family to the point that he had not answered a call from his mother in three months. However, this issue had appeared to resolve itself by the time the applicant was reassessed in March 2018 by the respondent’s other psychologist, Dr. Alfanso Marino.

23Taken together, I am satisfied that the applicant demonstrated the existence of cognitive and psychological impairments sustained as a result of the subject accident. These records also allow me to conclude that these impairments substantially impaired his ability to perform the essential pre-accident tasks of extended observation, attention to detail, and interactions with the public and the police.

24A major point of contention raised by the respondent is the applicant’s own admission that he can complete his pre-accident employment. For instance, when being interviewed by the respondent’s physiatry assessor, Dr. Florin Feloiu, in March 2017, the applicant stated that “he believes he can do his job.” However, he then noted that “he might have some difficulties with running and taking down people”. Ultimately, Dr. Feloiu agreed with the applicant’s self-appraisal of his employment capabilities.

25Similar, though more qualified, comments were made to Dr. Costa El-Hage. Specifically, to return to work, the applicant felt that modified duties would be required wherein he did not have to chase suspected thieves or interact with coworkers and patrons. She, too, concluded that the applicant was able to return to his pre-accident employment.

26I do not place much weight on these comments, as the applicant himself placed significant limits on his ability to return to work. Furthermore, even in light of these comments from the applicant, Dr. Costa El-Hage still found that the applicant suffered from a psychological impairment.

27The respondent also pointed to the contradictory nature of the applicant’s responses during this proceeding. One noteworthy example are the validity issues identified in the psychometric testing used by Drs. Costa El-Hage and Marino.

28Though these results do cast doubt on his self-reported symptoms, I find that the applicant’s responses to assessors have been largely consistent. Specifically, the applicant has detailed significant concerns with psychological distress and cognitive decline to a variety of health professionals. Further, Dr. Costa El-Hage later noted in her report that the applicant “presented as an honest and forthright individual and appears to be experiencing at least some level of emotional distress in relation to the index accident.”

Post-104 Week Income Replacement Benefit

29Moving past the 104-week mark, an applicant must demonstrate (on a balance of probabilities) that they suffered from “a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.” I am satisfied that the applicant has met this standard.

30To perform this analysis, an adjudicator must generally determine what kind of employment an applicant would be suited for in light of their past vocational and educational experience. However, in the present case, I was provided with limited information on this point, save for the psychological reports of Drs. Costa El-Hage and Marino.

31According to these reports, the applicant completed his high school education, “as well as some courses through Humber College.” Though Dr. Costa El-Hage does not elaborate on what these courses were in, Dr. Marino later noted in his report that the applicant has his security guard certification. Aside from his role as a security guard (which he held for several years prior to the accident), these two assessors wrote that the applicant worked for seven years as a manager at a fast food restaurant, as well as factory work and “other customer service jobs.”

32These sparse details do not provide a full picture of the applicant’s pre-accident history. However, I am still satisfied that the applicant has met the standard for entitlement, as his potential for employability is now virtually non-existent. Put another way, regardless of where he may have worked or trained in the past, his psychological and cognitive impairments have left him completely unable to engage in any form of employment.

33I base much of this conclusion on the medical report from Drs. Parkinson and Krasnik. Released in December 2018 (i.e., just after the 104-week mark), these assessors found that the applicant “must be considered to be unemployable to any vocation”. That is, while some of the applicant’s cognitive skills were still intact, his overall academic performance was very low (i.e., he is in the 5th percentile for his age). As such, the assessors concluded that “[h]is transferable skills are quite limited based on his academic achievement, and cognitive performances.”

34There are some limits to the conclusions in this report. First, as noted by the authors themselves, they did not have the benefit of comprehensive cognitive testing. Therefore, while their limited testing found the applicant was still proficient at “rapid visual scanning”—a skill “relevant to security work”—the authors assumed that “one of the related abilities” of scanning between multiple targets “has likely be [sic] compromised by his injuries”. I was not provided with a reason for this connection, but the applicant’s inability to return to any form of employment from the date of the accident lends credence to the idea that his previous skills have been severely compromised.

35Further, the report from Drs. Parkinson and Krasnik indicated that two tragic events had “recently” taken place, i.e., the applicant’s mother passed away, and he was evicted from his home. This combination of intense stressors left the applicant “frequently tearful in treatment sessions”, and so there is a question as to whether the applicant’s condition at the time of this report is better explained by these subsequent difficulties (as opposed to the subject accident).

36Obviously, these events had a negative impact on his mental health. However, I am satisfied that the accident has had a lasting effect on the applicant. Evidence of these continuing effects are found throughout the clinical notes and records of the family physicians, as they documented regular complaints of psychological distress and emotional turmoil. These physicians were also aware that the applicant was dealing with housing issues, but references to the subject accident still continued to appear alongside discussions of his mental health struggles (e.g., the aforementioned note from July 21, 2017 linked the accident to his cognitive and psychological decline).

37Even in spite of these limitations, I still place significant weight on Drs. Parkinson and Krasnik’s report, in part, because they provided a credible account for why I should put less weight on the psychological opinion of Dr. Marino. First, the assessors took issue with Dr. Marino’s lack of analysis involving the applicant’s academic performance (and its effects on employability). I, too, place a significant amount of weight on this finding, as both Dr. Marino and the applicant’s assessors did not possess comprehensive cognitive testing results at the time of their assessments. As such, measures of academic performance are the closest approximation of objective, cognitive testing I have before me.

38Drs. Parkinson and Krasnik also raised concerns about the applicant’s limited reading comprehension, as it could affect the validity of his psychometric testing. Therefore, without valid testing, the assessors then reasoned that Dr. Marino’s conclusion could only be based on his clinical interview with the applicant—a source of information that paled in comparison to the knowledge they had generated from treating him over multiple sessions. While I do question the comments made about Dr. Marino’s testing validity, it does follow that the ongoing relationship between an applicant and a treating practitioner would lead to a more comprehensive understanding of one’s struggles than an assessor could obtain through a clinical interview.

39One final issue with Dr. Marino’s conclusion that I would add is his undue reliance on the applicant’s self-reported, employment capacity. That is, even after finding that his psychological impairment had become “chronic”, Dr. Marino still concluded that the applicant was fit to work because the applicant himself identified physical issues, not psychological, as the main barrier to returning to work. Beyond questioning why he accepted this self-report over his own findings, the medical records indicate that the applicant’s inability to work has been long connected to his psychological struggles.

40Taken together, I am not only satisfied that Drs. Parkinson and Krasnik present a convincing account of the applicant’s current employment capacity, but I further find that the applicant is completely unable to engage in employment or self-employment for which he is reasonably suited. As such, the applicant is entitled to an income replacement from July 6, 2018 to date and ongoing (in the amount of $327.08/week).

Medical Benefits

41Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the automobile accident.

42An essential part of this analysis requires an adjudicator to compare the applicant’s accident-related impairments to the treatment plan’s proposed goals and modalities. That is, it is not enough to say that an applicant has sustained an impairment, but rather the disputed medical benefit must also have some rational connection to the treatment of said impairment. This kind of information should be listed in the OCF-18, i.e., the treatment plan form.

43As such, the failure to produce the OCF-18 associated with a disputed medical benefit will mean that an adjudicator will lack the information needed to evaluate whether a particular form of treatment is reasonable and necessary.

44Therefore, since the applicant failed to provide the associated OCF-18s for the medical benefits now in dispute, his claim for these benefits must fail. I would also note that the Tribunal reached out to the applicant for these OCF-18s, but he responded to this request by providing the Tribunal with two unrelated OCF-18s.

CONCLUSION

45I find that the applicant is entitled to an income replacement benefit from July 6, 2018 to-date and ongoing (in the amount of $327.08/week). The applicant is not entitled to the disputed medical treatment plans.

Released: November 7, 2019