F.D. v. Allstate Canada, 2019 CanLII 43902

Citation: F. D. vs. Allstate Canada, 2019 ONLAT 17-006372/AABS

Date: April 25, 2019

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:

F.D.

Appellant(s)

and

Allstate Canada

Respondent

DECISION

ADJUDICATOR: Meray Daoud

APPEARANCES:

Applicant: F.D. Counsel for the Applicant: Frank McNally Counsel for the Respondent: Ian D. Kirby Interpreter: Wael Hussein, Arabic

HEARD: Oral Hearing : July 9-13, 2018

OVERVIEW

1The applicant, F.D., was involved in an accident on August 6, 2014, where she was rear-ended at a red light, and 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 F.D. 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) Is the applicant entitled to a medical benefit outlined in a treatment plan for medication in the amount of $271.13?

b) Did the applicant sustain a catastrophic impairment as defined under the Schedule?

c) Is the applicant entitled to interest on any overdue payments?

ISSUE MANAGEMENT

3At the commencement of the hearing, the applicant advised that they will be withdrawing issue a) as listed above and issue c) is it relates to issue a). As such, the hearing and my decision solely address issue b)

RESULT

4Based on the totality of the evidence before me, I find that:

a) The applicant has sustained a catastrophic impairment as defined under the Schedule.

ANALYSIS

Causation:

5The parties disputed causation with respect to the applicant’s injuries. The applicant submitted that “but for” the subject motor vehicle accident, the applicant would not have sustained the injuries and impairments which are the basis of this claim or in the alternative the accident “materially contributed” to them. The respondent disagrees and further submits the appropriate test to be applied in accident benefit claims for causation is the “but for” test.”

6The respondent relied on two decisions from the Financial Services Commission of Ontario (FSCO), including the Director’s Delegate appeal decision in State Farm and Sabadash (Sabadash).²

7The proposition in Sabadash, which the respondent relies on is that, in accident benefit cases, causation is established by the “but for test”. After giving a detailed history of the leading case law in Canada, Director’s Delegate Evans stated that the correct test to be applied for causation in accident benefits cases is the “but for” test and that this test is “paramount” in determining causation in accident benefits cases.

8Also, within this decision, Director’s Delegate Evans states that the “but for” test does not require that the accident be the only contributing factor to the applicant’s condition. There can be other contributing factors and the effect can be cumulative but if both contribute to the applicant’s injuries then the “but for” test is met.

9Although I am not bound by FSCO decisions, I am persuaded by the reasoning and the case law cited in Sabadash that the proper test for causation is the “but for” test.

10The evidence and testimony heard, demonstrated that before the accident the applicant had been seen by her family physician, Dr. Nahri on a few occasions regarding “anxiety” and “emotional issues”. At one point while treating the applicant, Dr. Nahri referred her to a psychiatrist, Dr. Krishnaprasad in 2011.

11In Dr. Krishnaprasad’s consultation note of November 4, 2011, He diagnosed the applicant with generalized anxiety disorder with panic attacks, adjustment disorder with mixed emotions secondary to her father’s illness and concern about the clinic she has been attending being contaminated and investigation to rule out any underlying problems. He states that she is also worried about not finding work. He prescribed her Cipralex for the period of three months.

12He goes on to mention that she has chronic neck pain and bulging of the cervical disc with degenerative disc disease and unable to work with chronic pain symptoms. Dr. Krishnaprasad writes a note supporting her application for Ontario works.

13The applicant testified about these pre-existing issues. She submitted that she indeed did suffer from some psychological issues in 2011 as a result of her father having a stroke. She stated that she saw the psychiatrist she was referred to and was prescribed medication, however she did not take it. The applicant testified that this was a short lived issue. She also stated that she had some physical ailments prior to the accident, including neck pain. The applicant testified that none of these issues affected her functioning at the time this accident occurred. This is corroborated by the lay witnesses who testified at the hearing, as well as by Dr. Nahri.

14I do not see any further evidence to suggest otherwise. The evidence before me suggests that the applicant did not have a significant history of impairments, but rather that she was very functional, social, and independent at the time of this accident. I cannot deny that her pre-accident mental health and physical issues may have contributed to her current impairments. However, the post-accident evidence before me, including numerous physical and psychological diagnoses, treatments and functional impairments, presents a substantial change from what her pre-accident health issues noted. She has been followed and treated by various health practitioners, including quite a few mental health specialists, over a number of years and has been prescribed multiple medications, with a poor prognosis.

15Therefore, I am satisfied that on a balance of probabilities, that “but for” the subject motor vehicle accident, the applicant would not have suffered from these injuries or impairments.

Catastrophic Impairment Designation:

16The applicant submits that she is entitled to a Catastrophic Impairment (CAT) designation as she has sustained a class 4 “marked” impairment in two of the four domains set out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides)³; namely; Activities of Daily Living (ADLs) and Adaptation⁴. In the alternative, the applicant submits that If she is not found to have sustained a Class 4 “marked” impairment, that she has sustained a CAT impairment as she has sustained a 55% whole person impairment rating.

17The 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 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.

18Under the Schedule, “impairment” means “a loss or abnormality of a psychological, physiological or anatomical structure or function.”

19The Ontario Court of Appeal in Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), ⁵ confirmed that the test of CAT impairment is a legal test and not a medical test.

20A 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”.

21It 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.

22The 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:

1. activities of daily living (ADL),
2. social functioning (SF),
3. concentration, persistence and pain (CCP); and
4. adaptation (AD).

23It 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.

24The Guides make it clear that a diagnosis of a specific psychological impairment is not required for a CAT impairment designation, but rather the focus is on function.

25Within 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.

26During her testimony, the applicant submitted that prior to the accident she was a very independent person, who took care of herself and household duties, took care of her four children and her husband, would drive herself and her children regularly. She operated a day care, taught Arabic on weekends, was involved in number of activities and avidly volunteered within her community, including being a scout leader, and maintained a number of social networks and relationships.

27The applicant spoke about her post-accident injuries and limitations, stating that she had pain all over her body, severe headaches, dizziness, difficulty with focus and concentration and memory, anxiety, depression, stress and issues with sleep. She testified that her impairments have had a dire effect on her ability to function. The applicant stated that she can no longer do the things she used to be able to do, she is easily angered, very impatient, cries often and has difficulty handling minimal issues. She went on to say that she suffers from anxiety attacks and takes medication to calm herself down. The applicant testified that she has not tried to go back to work as she feels she cannot be responsible for children as she was before, she has not returned to her volunteering or teaching Arabic. She stated that she can go out with someone to get groceries or go to the bank and sometimes takes walks. She further stated that she has not returned to her pre-accident housekeeping duties and that her children and husband have taken those responsibilities, she can make light meals or get take out, she also requires her daughter’s assistance with her personal care. She testified that her relationships with her children and husband have changed substantially, her social activities and friendships have significantly decreased and seldom goes to the mosque.

28The applicant’s son, daughter, and her close friend, also testified at the hearing. They all echoed, in detail, what the applicant’s life looked like before and after this accident. They all described her as full of life, always on the go, loved working with children and very socially involved. Her children described their mother as very involved in their lives, taking care of their personal and educational needs, the home as well as herself and those around her. [Ms. R.], described the applicant as “the mayor of the community” as she was involved in many aspects within the community consistently, including leading scouts, planning very large events, fundraising and teaching Arabic.

29The applicant’s children and friend corroborate the applicant’s testimony with respect to her limitations and how her life has changed after the accident. She was described as not the same person as prior to the accident. Her daughter testified that she had difficulty keeping up with school while taking care of her mom everyday with her personal needs and the home. She also testified that she was slated to be married in 2018 however, that did not happen because she has to care for her mother and she would have to move away when she is married and does not have someone to take care of her mom in her absence.

30With respect to the applicant’s psychological diagnosis, it would appear that multiple assessors who have seen the applicant on behalf of both parties, Dr. Seatter, Psychologist⁷, Dr Damji⁸ and Dr Roy, Psychiatrist⁹, have come to very similar conclusions. More interesting, the applicant’s CAT expert, Dr. Reesor¹⁰, and respondent’s CAT expert, Dr. Kiraly¹¹, gave the applicant an almost identical diagnosis, with the addition of post-concussive syndrome by Dr. Kiraly. Where the dispute truly lies is how each of the CAT assessors rated the applicant’s impairments within the 4 domains.

31The applicant relies on Dr. Reesor’s psychological assessment where he finds the applicant to have a class 4 “marked” impairment, within two of the four domains, namely, activities of daily living (ADLs) and adaptation (AD).

32Dr. Reesor summarizes a substantial amount of medical documentation he reviewed. He conducted an interview and self-reporting testing with the applicant, including the Beck Depression Inventory 2, Beck Anxiety Inventory, Pain Disability Index and Rivermead Post Concussion Symptoms Questionnaire. Dr. Reesor also conducted a comprehensive collateral interview with the applicant’s close friend, [Ms. R.], who also testified at the hearing and found that the information she provided was direct and insightful and was consistent with what the applicant had reported.

33Within his report, Dr. Reesor did not identify any issues with the applicant’s credibility while being assessed. He confirmed this during his testimony at the hearing. He found that the information provided to him, by the applicant, was also consistent with past records, this is something he looks for to validate information given.

34Dr. Reesor notes that the applicant has evidenced persistent symptoms in the three year’s post-accident and despite the treatments and time, that there is no indication of a material or substantial improvement in her condition. He also notes that her condition, at this point, is considered permanent and chronic and the likelihood of any material or substantial change in the future would be minimal and her prognosis is poor.

35When arriving at the rating of class 4 impairment within the domains of ADL’s and AD, Dr. Reesor notes that it is not sufficient to simply rate an impairment level based on how people function in a few select activities within the different areas of functioning. He goes on to say that the Guides direct us in that a determination of impairment is not simply quantitative but rather a qualitative determination which takes into account the appropriateness, effectiveness, and independence of residual abilities in all the areas of functioning.

36Dr. Reesor testified that, after putting all the information and observations together, it was clear that the MVA was the catalyst of the onset of symptoms the applicant experienced.

37He went on to state that the applicant evidenced that her impairments are significantly impeding her ADLs. There was very little productive activity in or out of her home and she wasn’t engaged in social events. Dr. Reesor testified that the clinical information showed poor tolerance to these activities and her inability to handle pain and poor mood are clear indications of an impaired tolerance to stress and this was consistent with previous reports.

38Dr. Reesor stated that depression and no drive or motivation, proneness to fatigue, chronic pain, and a lack of emotional regulation are disruptive in allowing her to engage in these activities.

39The applicant submitted an In-Home Functional Assessment dated October 2, 2017 by Susan Smyth OT, wherein Ms. Smyth assessed the applicants function in a number of areas within housekeeping and attendant care. She noted issues with function in dressing/undressing, grooming, feeding (making meals), mobility, hygiene, bathing, taking medication and bathing. She also noted limitations in numerous housekeeping activities. Ms. Smyth notes that her family assists her or have taken over these tasks and recommended the applicant receive ongoing assistance with these tasks.

40An In-Home assessment of mental behavioral function by Shelley Stephenson, OT, dated February 8, 2018, was also submitted. Within this report, Ms. Stephenson documents results of the assessment conducted with the applicant, including tasks such as making oatmeal, using the telephone and taking medication. She writes that the applicant demonstrated difficulties with initiation and completion of basic tasks such as simple cooking, paying bills and using the phone, requiring significant queuing and coaching. Ms. Stephenson notes that her ability to cope with the assessment was limited, negative self-talk hindered her performance and that she was on the verge of tears and described fear of being home alone, driving, loss of support when her daughter moves out, as well as pain.

41Ms. Stephenson addresses the mental behavioral spheres, stating that the applicant’s performance during the assessment is consistent with the persistent mental health injuries and difficulty in engaging in her usual activities which are well documented. Her opinion is that the applicant’s level of functioning in the spheres of ADLs and AD are severely impaired.

42To rebut the applicant’s claim, the respondent relies on its Catastrophic Impairment Multidisciplinary Assessment dated November 29, 2016, which Dr. Kiraly’s psychiatric assessment¹² forms part of. Within Dr. Kiraly’s report he finds the applicant to have a class 3 “moderate” impairment within all four domains.

43Within his report, Dr. Kiraly summarizes reports which he reviewed, conducted an interview with the applicant as well as self-reporting tests including, Beck Depression Inventory, Beck Anxiety Inventory, Davidson Trauma Scale, Mood Disorder Questionnaire, Sheehan Disability Scale and WHO Disability assessment Schedule 2.0.

44Dr. Kiraly notes that all the reports he reviewed were consistent with the history and findings of the assessment.

45Within his assessment of the applicant’s ADLs, he notes that she has difficulties with household chores, childcare and she cannot work. He goes on to say that her sleep is poor, she has given up driving, is depressed, anxious and avoidant. Dr. Kiraly writes that she has withdrawn from family and friends and dropped hobbies and interests and lost her libido. He then concludes this section by saying she is still independent, follows treatments and maintains her family relationships and that under this category there is a class 3 “moderate” impairment at most.

46As for the domain of adaptation, he writes that the applicant cannot work while she has so much pain, anxiety, depression, fatigue, poor stamina and gets overwhelmed easily. He goes on to say that she lacks patience now and her pains affect her sleep. He concludes this section by stating that it is his opinion that the applicant has a class 3 moderate impairment.

47During his testimony at the hearing, Dr. Kiraly stated that he felt that the applicant was severely impacted in daily living, however he had to give her a “moderate” rating as she continues to have a relationship with her kids, watches TV, goes out and does some things, she was fine when he met with her,, she is taking her meds, she is getting therapy and seeing a psychologist. He continued saying that he has seen people with “marked” impairments and they do not “look” like the applicant.

48When questioned with respect to his assessment of AD, he states that he wrote that the applicant cannot work because of pain, anxiety, depression etc however felt that it was moderate. Dr. Kiraly testified that is often difficult to “come off the fence” but he felt that it was a “moderate” impairment. He continued to say that as far as he can see there was no fragility, she has an intact family and has potential to be self-employed again.

49Dr. Kiraly was taken through the ADLs listed within Ms. Smyth’s report of October 2, 2017, where she notes limitations in the applicant’s functioning. Dr. Kiraly agreed that those limitations were indeed significant.

50He was also taken through the ADLs listed in the IE Occupational Therapy Assessment by Ms. Tracie Shaw, OT, dated September 13, 2016, which formed part of the respondent’s Multidisciplinary Catastrophic Examination. Dr. Kiraly, again, agreed that the limitations noted are significant.

51With respect to AD, Dr. Kiraly testified that although he wrote that the applicant cannot tolerate stress, that what he should have written was that the applicant cannot handle stress very well. He stated that he believes her defence to difficult situations is not dealing with them and that he believes she is not getting adequate treatment.

52Within his report, Dr. Kiraly did not bring up any issues with respect to credibility of the applicant. Again during the course of his cross examination, Dr. Kiraly stated, more than once, that he does not believe the applicant to be dishonest in the information provided, nor does he find that she is malingering but rather what there may be is somatization symptom disorder and regression. However, what I find peculiar, is that he also testified that one of the reasons he found the applicant to have a class 3 “moderate” impairment in all four spheres is because with people who have a tendency to overstate their case, he tends to take it with a “with a grain of salt”.

53Another reason which Dr. Kiraly gave as to why he found the applicant to have a class 3 “moderate” impairment rating in all domains was because she has the potential to go into remission and improve functioning as depression is treatable. It is important to note that the Guides¹³ make it clear that estimates given are to be based on current findings and evidence, not on future possibilities of the applicant’s condition. It is not appropriate to give a rating based on the potential that the applicant’s condition may improve in the future.

54It is also worth noting, during the course of the hearing, the applicant experienced what appeared to be a panic-like attack. Although it is outside of my scope to comment on the source or timing of such an episode, the applicant appeared to be in great emotional and mental distress and was ambulated to hospital. She was able to return the following day for cross-examination.

55I found the testimony of the applicant and lay witnesses credible and consistent with previous reporting, within the documents before me. I also found that the evidence of her treating health practitioners to be credible and in support of the evidence of the applicant. I cannot speak on the reason as to why the applicant may have omitted any previous health issues she may have had when providing information to her doctors or the assessors, but I do not find this omission to necessarily imply dishonesty.

56I find that the evidence before me and testimony heard throughout the hearing support the applicant’s catastrophic impairment determination. I find that she suffers from serious mental and behavioural impairments which significantly impede her functioning, within both domains of ADLs and AD.

57The applicant, who was a joyful and involved mother of four, constantly on the go, taking care of her children, home and who was extremely social and very involved in her community, is no longer able to function in that same capacity. The applicant’s inability to continue her activities of daily living, which by all accounts, was something she took great pride in and did intensively, combined with her constant need for assistance to complete her self-care and other activities would have the applicant as a class 4 “marked” impairment within this domain.

58With respect to AD, this area considers the person’s ability to manage stress or stressful situations. The applicant has not gone back to work as of the date of the hearing and it has been noted by multiple assessors and health practitioners that she cannot return to work. It is evident to me, based on the evidence, that the applicant would not be able to handle the stressors of managing work or the demands that it would come with. The applicant has evidenced an extreme dependence on others to complete the simplest of tasks, gets overwhelmed and anxious by minor issues and does not have the capacity to be alone for long. This is a significant impact on her function and as such, I find that also within this domain, the applicant has a class 4 “marked” impairment.

59Based on the totality of the evidence before me, I find the applicant has proven on a balance of probabilities that she has sustained a catastrophic impairment as a result of the subject motor vehicle accident.

60As I have found the applicant catastrophically impaired based on class 4 “marked” impairment within two domains, it is not necessary for me to address whole person impairment rating.

CONCLUSION

61I find that the applicant sustained a catastrophic impairment as a result of the accident and is entitled to the expanded policy limits that accompany such a designation.

Footnotes

1. 1O. Reg. 34/10.
2. 2State Farm and Sabadash (Appeal P16-00029)
3. 3Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993, at Ch. 14. [“Criterion 8”]
4. 4Guides, at s. 14.3, pg. 294. The full domain name for “Adaptation” is actually: “Deterioration or decompensation in work or work like settings.”
5. 5Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571
6. 6Pastore v. Aviva Canada Inc., 2012 ONCA 642
7. 7Independent Psychological Evaluation dated October 22, 2015
8. 8Psychological Assessment report dated April 15, 2016
9. 9Psychiatric Assessment report dated October 1, 2015
10. 10Confidential Psychological Opinion Report dated July 31, 2017
11. 11Catastrophic Determination Psychiatric Assessment dated September 15, 2016
12. 12Psychiatric Assessment dated September 15, 2016
13. 13Rules for Evaluations, Chapter 2.2