A.K. v. Allstate Insurance, 2020 CanLII 14418

Citation: A.K. vs. Allstate Insurance, 2020 ONLAT 17-008646/AABS

Released Date: January 14, 2020

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:

A.K.

Applicant

and

Allstate Insurance

Respondent

DECISION [AND ORDER]

PANEL:

Paul Gosio, Adjudicator

APPEARANCES:

For the Applicant:

A.K., Applicant

Maciek R. Piekosz, Counsel

For the Respondent:

Nawaz Tahir, Counsel

HEARD:

In Person: October 10 – 19, 2018

OVERVIEW

1The applicant seeks a determination that she sustained a catastrophic impairment as defined by the Statutory Accident Benefits Schedule – Accidents on of After November 1, 1996, O. Reg. 403/96 (the “Schedule”).

2The applicant was involved in a motor vehicle accident on July 16, 2010. She was the belted driver of a vehicle that struck the median, spun out of control, struck another vehicle and came to a rest after hitting the guardrail. The applicant applied for and received benefits pursuant to the Schedule. She then applied to the respondent for a determination that her accident-related injuries resulted in an impairment that met the statutory threshold for a catastrophic impairment. The respondent denied her application: in its view, the applicant did not sustain a catastrophic impairment. In response, the applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve the dispute.

ISSUE IN DISPUTE

3Did the applicant sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident?

RESULT

4Based on the totality of the evidence before me, I find that the applicant has sustained a catastrophic impairment within the meaning of the Schedule as a result of the accident.

THE LAW

5The applicant bears the onus of establishing, on the balance of probabilities, that, as a result of the accident, she sustained a catastrophic impairment as defined by section 2(1.2)(g) of the Schedule. It is common ground between the parties that the relevant portion of that section defines a “catastrophic impairment” as follows:

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

6The Guides deal with these disorders in Chapter 14. The 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.

7The Ontario Court of Appeal in Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 confirmed, at paras. 24-32, that the test of catastrophic impairment is a statutory test – a legal definition that a claimant must meet – not a medical test.

8Under the Schedule, an “impairment” is defined as “a loss or abnormality of a psychological, physiological or anatomical structure or function.”

9Impairments are classified according to how seriously they affect a person’s useful daily functioning in four broad and overlapping “domains”: Activities of Daily Living, Social Functioning, Concentration, and Adaption. Further, impairments are also classified using the word descriptors in Chapter 14 of the Guides on a five-category scale that ranges from no impairment to extreme impairment. These word descriptors are important because they assign meaning to each category. Therefore, it is not the category label itself (e.g., mild, moderate, marked, extreme) that must be carefully assessed and analyzed, but the language that the Guides use – the verbal rating criteria – describing these classifications.

10The following table from Chapter 14 of the Guides 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

11In Pastore v. Aviva Canada Inc., 2012 ONCA 642 the Ontario Court of Appeal confirmed that a single “marked” impairment in any one domain will qualify as a “catastrophic impairment”. As a result, a person is catastrophically impaired if he or she is found to have a class 4 “marked” impairment or a class 5 “extreme” impairment that affects useful functioning in any one of the four functional domains due to mental or behavioural issues. This is referred to as “criterion 8”.

12The applicant submits that she is entitled to a catastrophic impairment designation and, to that end, relies in part on the opinion of Dr. Becker, psychologist, who concluded that she sustained a class 4 “marked” impairment in the Adaptation domain as set out in the Guides.

13The respondent acknowledges that the applicant suffers from a mental and/or behavioural disorder but takes the position that the applicant is not entitled to catastrophic impairment designation. The respondent relies in part on the opinion of Dr. Chandrasena, psychiatrist, who concluded that the applicant sustained a class 2 “mild” impairment in the Adaptation domain as set out in the Guides.

14Within 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.

EVIDENCE AND ANALYSIS

15In Pastore, the Court of Appeal outlined the following three step approach one should take when deciding the issue of catastrophic impairment due to mental or behavioural disorders:

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?

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

16The parties agree that the applicant suffered a mental and/or behavioural disorder a result of the accident. This is borne out by the evidence.

17For example, the applicant’s principal expert witness, Dr. Becker, diagnosed the applicant with the following: Pain Disorder Associated with both Psychological Factors and a General Medical Condition; Major Depressive Disorder, Single Episode, Moderate, Chronic; and Anxiety Disorder Not Otherwise Specified (features of Posttraumatic Stress Disorder).

18In March 2011, the applicant’s treating psychologist, Dr. Reist, diagnosed the applicant with the following: Post Traumatic Stress Disorder in Partial Remission; Pain Disorder Due to a General Medical Condition and Psychological Factors; and Anxiety Related to Driving.

19On August 8, 2010, the applicant’s family doctor Dr. Domenicone, completed an OCF-3 disability certificate which identified the following injuries: right neck pain, right upper back and anterior chest wall pain, right arm and hand pain and numbness, low back pain and right leg and foot pain. An x-ray, CT scan and MRI were done in late 2010. The results of these tests were unremarkable.

20In March 2013, the applicant was assessed by Dr. Tugalev, physiatrist, for an assessment of the pain she was experiencing in her head and the entire right side of her body. Dr. Tugalev diagnosed the applicant with myofascial pain syndrome on the right side.

21Dr. Sangha completed a Physical Impairment Evaluation – Criterion 7 on behalf of the applicant on January 5, 2017. Dr. Sangha concluded that the applicant sustained a cervical and lumbar strain with right lumbar radicular features, and that she has gone on to develop a more widespread chronic pain syndrome with significant, severely disabling complaints and symptoms to the right hemi-body.

22Dr. Chandrasena, psychologist, who conducted an insurer’s examination in July 2017, diagnosed the applicant with chronic residual Post-Traumatic Stress Disorder symptoms with Pain Disorder with psychological overlay based on DSM-IV-TR criteria, Post-Traumatic Stress Disorder, chronic and Somatic Symptom Disorder based on DSM-5 criteria.

23Dr. Jaroszynski completed an Orthopaedic Surgeon’s Examination on behalf of the insurer. Dr. Jaroszynski diagnosed the applicant with a cervical and lumbar sprain and strain and a possible chest wall contusion which subsequently developed into diffuse myofascial syndrome with ongoing radicular like symptoms in the right upper and lower extremities.

24Despite the differences in diagnoses amongst the medical practitioners, it is clear that the applicant has had considerable emotional difficulty adapting to and coping with her many psychological and physical symptoms, including pain, since the accident.

25The next step in the analysis now requires an assessment of the impact of the mental or behavioural disorder on the applicant’s daily functioning.

26The applicant began working in 1994 at […] she has worked in various capacities since that time. She started working in the clothing department but worked her way up to department manager and assistant buyer. At the time of the accident, the applicant was an analyst and had been working in that capacity for approximately a year and a half. She was a full-time employee who worked up to 12 hours a day, five days a week. She described her job as cognitively demanding and largely sedentary. She typically managed a one-and-a-half-hour commute both to and from work everyday.

27Immediately following the accident, the applicant took approximately five weeks off due to pain. She then began participating in physiotherapy and massage therapy, and began taking a number of prescribed medications. She then attempted to return to work and managed to return for four consecutive days. She returned to regular duties but only managed to work for six hours per day. She described difficulty managing her job demands due to pain and physical limitations. She also explained that the stress of the fast-paced workplace contributed to the exacerbation of her pain. She explained that she was not dealing well with the stress and that she was experiencing problems with concertation and problem solving. She left early on the fourth day as she was in “so much pain,” and has not returned to work since that time. She reported that she has not been able to return to work due to her pain and physical limitations, difficulty managing stress which contributes to her pain, diminished energy as well as a tendency to fatigue easily. She also reported difficulty managing the commute to and from work due to pain and anxiety.

28The applicant was independent with respect to her self care and household chores prior to the accident. She explained that she did most of the grocery shopping and cooking. She was typically responsible for the laundry and most of the light and heavy cleaning inside the home.

29The applicant explained that she remains independent with most of her self care activities but has difficulty with most tasks and is slower to complete them as a result of pain and physical limitations. She also described requiring assistance from her husband with respect to showering and some other self care tasks when her pain is at its worst. She explained that she has a reduced interest in her appearance and, as a result, engages in self care activities such as showering less frequently.

30The applicant also explained that her husband now manages most of the grocery shopping due to her pain and physical limitations. Also, the applicant prefers to avoid shopping and she worries about meeting familiar people and having to stand and talk to them, which exacerbates her pain. She also prefers to avoid answering questions about herself as she explained that this triggers distress and she does not want to burden others. The applicant noted that she continues to assist with meal preparations for the family, but tends to prepare much more simple meals as a result of pain, physical limitations and the worry about exacerbating her pain. The applicant’s husband has taken over responsibility for all the heavier demands and the laundry.

31The applicant’s relationship with her husband remains close. However, they are less intimate as a result of the applicant’s pain and reduced confidence. The applicant also noted some social withdrawal. She explained that, as a result of pain and her worry about exacerbating it, she is no longer in regular contact with her work friends and only socializes with friends approximately once a month, whereas before the accident she would socialize with friends a few times per week. She also explained that she hates crying in front of others and that she worries about doing that. She has skipped several social gatherings because of this and because she wanted to avoid being a “black cloud” or a “downer.”

1After reviewing the evidence before me, I find that the accident resulted in a mental or behavioural disorder which negatively impacted the applicant’s daily functioning. The analysis now requires an assessment of the severity of the limitations to see if they reach the level of catastrophically impaired.

What is the Level of Impairment in View of the Impact of the Mental or Behavioural Disorder?

32Dr. Becker conducted a Mental/Behavioural examination of the applicant on January 6, 2017 as part of a multidisciplinary approach which included a Physical Impairment Evaluation, a Two-Day Occupational In-Office Evaluation and an Executive Summary. Dr. Becker concluded that the applicant sustained a class 4 “marked” impairment in the Adaptation domain as set out in the Guides.

33The 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.” 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.

34Dr. Becker’s opinion that the applicant sustained a class 4 “marked” impairment in the Adaptation domain as set out in the Guides was based in part on her finding that the applicant’s ability to participate in activities of daily living, engage in relationships and initiate/participate in tasks had been significantly compromised by her psychological symptomology. Dr. Becker noted that the applicant demonstrated a diminished ability to cope with certain perceived stressors (particularly those that triggered her pain and contributed to her feeling easily overwhelmed), a tendency to avoid certain stressors, and a tendency to experience an exacerbation of psychological symptomology upon exposure to certain stressors. Dr. Becker also noted that the applicant had reported engaging in significant avoidance behaviours in an effort to manage her pain and anxiety.

35Dr. Becker relied in part on Ms. Kara’s (occupational therapist) findings as a result of her Two-Day Occupational Therapy In-Office evaluation, which took place on January 16 and 17, 2017. Ms. Kara conducted the evaluation at her office in Toronto and in the applicant’s community of Woodstock. According to Ms. Kara, the applicant repeatedly highlighted her distress with having to travel to and be assessed in Toronto. She also repeatedly highlighted concerns about her ability to manage both days of testing, particularly day two which was scheduled to occur, in part, in the community. Ms. Kara provided a review of the applicant’s functioning throughout the two-day evaluation and highlighted the applicant’s inability to effectively cope with simple demands such as putting together a puzzle, placing medications in a dossette, planning a meal, scheduling appointments, and locating a few items at a pharmacy.

36For example, Ms. Kara noted that the applicant struggled with the 64-piece puzzle and began to cry when she was given a specific time frame to complete the task. The applicant stated that this task was too stressful and painful for her and added “how am I going to manage tomorrow?”

37Ms. Kara also noted that the applicant began to cry when she was asked to organize a number of medications into a dossette, citing pain and an inability to find the correct medications. The applicant also struggled to engage in the demands of the calendar task as she started to cry and called herself useless.

38When a new and unexpected task was introduced to the applicant, planning diner and writing a grocery list, again she began to cry. Ms. Kara noted that the applicant reported feeling overwhelmed, and appeared panicked when she was asked to plan the dinner using a provided recipe book.

39The applicant also struggled with the pharmacy task, which required her to locate a number of personal care items and track their process in order to keep within a $45.00 budget. Ms. Kara noted that the applicant reported feeling anxious and overwhelmed as the store became increasingly busy.

40Ms. Kara noted that the applicant’s performance deteriorated as the assessment progressed and as she was given more activities to complete. Ms. Kara explained that she tried to encourage and coax the applicant into finishing each task and, even then, the applicant showed difficulty with perseverance, eventually leaving all five tasks incomplete. Mr. Kara noted that, when the applicant was placed in stress-induced situations, her emotions were heightened to the point that she was unable to persist.

41Ms. Kara also noted that the applicant demonstrated poor standing tolerance, an inability to bend or crouch, and significant discomfort when sitting for an extended period of time. She appeared very fatigued as the assessment went on and required breaks which lasted up to 45 minutes long. Ms. Kara also noted that the applicant also became quite overwhelmed when asked to engage in activities that required multi-tasking, or which had time constraints. The applicant continuously repeated how anxious and stressful she felt due to the pressure being put on her. This led to increased emotional distress and requests to terminate the assessment early on both days.

42After a review of the of the information before her, Dr. Becker concluded that the applicant’s reduced stress tolerance, use of withdrawal/avoidance strategies, and tendency to experience an exacerbation of distress when faced with certain perceived stressors is evidence of an impairment level which significantly impedes useful functioning (class 4 marked impairment) under the adaptation domain.

43Dr. Chandrasena, psychiatrist, completed a psychiatric insurer’s examination on July 19, 2017 as part of a multidisciplinary approach that also included an Occupational Therapy In-Home Examination, an Orthopaedic Examination and an Executive Summary.

44Dr. Chandrasena noted that the applicant was able to focus on the interview, described events in detail, and had been able to attend the medical, legal and administrative responsibilities relating to the accident. He noted that the applicant’s psychiatric symptomology had improved from baseline post-accident and now varies from mild to moderate.

45Dr. Chandrasena noted that the applicant was not visibly depressed at most of the interview, was occasionally tearful and exhibited no evidence of anxiety. He also noted that the applicant’s insomnia was due to physical pain, loss of work and interest due to pain and preoccupation with physical health concerns which have been chronic, and some shortness of breath and palpitations which are occasional.

46Dr. Chandrasena also noted that the applicant continues to have memories of the accident daily, inclusive of vivid dreams. The memories are made worse when she seems anxious, agitated and upset. Pain is contributing to loss of function and to avoiding family, friends and others. Subjectively, she has significant catastrophic thinking and feelings of life being cut short as a result of the accident.

47Dr. Chandrasena’s review of the subjective rating scales identified mild degrees of sadness, pessimism, self-dislike, self-criticalness, crying, indecisiveness, feelings of worthlessness, feeling fatigued, loss of libido, irritability, concentration difficulties and feelings of anxiety especially when reminded of the accident. Dr. Chandrasena diagnosed the applicant with chronic residual Post-Traumatic Stress Disorder symptoms with Pain Disorder with psychological overlay based on DSM-IV-TR criteria, Post-Traumatic Stress Disorder, chronic and Somatic Symptom Disorder based on DSM-5 criteria. Dr. Chandrasena ultimately concluded that the applicant suffered from a class 2 “Mild” impairment in the Adaptation domain as set out in the Guides.

48Mr. Morgan, occupational therapist, completed an insurers Occupational Therapy In-Home Examination on November 22, 2017. Mr. Morgan noted that the applicant demonstrated visible signs of anxiety and emotional distress such as rambling and crying on multiple occasions while narrating her difficulties. Mr. Morgan also noted that the applicant showed signs of psycho-emotional distress that could limit her from participating in daily tasks requiring increased effort on her behalf.

49Mr. Morgan presented the applicant with three hypothetical scenarios to assess her cognitive and psycho-emotional function. In the first scenario, the applicant was asked to prepare a supper menu and a grocery list of all the items required if her husband called her in the afternoon to inform her that one of his colleagues would be joining them for diner. Mr. Morgan noted that it took the applicant approximately five minutes to come up with a menu and complete a list of 11 items that she would need to purchase.

50The second scenario required the applicant to use the phone book to locate a nearby mechanic who could tow the assessor’s car that was assumed to have stalled. Mr. Morgan noted that it took the applicant approximately three minutes to locate a nearby mechanic. The applicant was requested to call to get a quote, but she chose not to leave a message when she did not get a response.

51In the final scenario, the applicant was asked to find a nearby bus stop and determine a route, fare and timing if the assessor had to take the local transit bus to the local train station. The applicant was able to locate the nearest bus stop and route to the rail station

52Mr. Morgan noted that the applicant did not demonstrate any distractibility, nor did she lack initiative. She did, however, have some difficulty problem solving and required prompting to continue with the activities that became overwhelming. Mr. Morgan also noted that the applicant became “teary-eyed” on six different occasions during the four-hour interaction. He also noted that the applicant initially presented with considerable anxiety and was assured that the assessment would be fair and from a professional stance. Despite this, the applicant continued to exhibit ongoing distress related to the need to answer the same questions, complete functional tasks before strangers and completing cognitive exercises. Mr. Morgan also concluded that the applicant is considerably compromised in her ability to engage in competitive paid employment due to her current anxiety levels.

53Based on the above, and for the following reasons, I have found that the applicant has met her onus in establishing that she suffered a class 4 “Marked” impairment in the Adaptation domain as set out in the Guides and is, therefore, catastrophically impaired within the meaning of the Schedule.

54Pain was a major factor in this case and germane to the applicant’s claim of a mental and behavior disorder. Given this, the severity of her limitations and claim of catastrophic impairment turns, to a large extent, on the reliability of her evidence, in terms of her complaints of constant pain, social withdrawal and her presentation to the various assessors.

55In this case, I have found the applicant’s evidence to be credible and compelling. Her credibility was largely unchallenged during the hearing and her evidence, and complaints have been consistent since the time of the accident. The applicant testified in detail about her stress tolerance, her inability to manage/react to stress appropriately, her avoidance and withdrawal tactics from stressful situations and how she decompensates when faced with stressors which makes it difficult for her to maintain activities of daily living, engaging in social relationships and completing tasks. Her evidence clearly demonstrates that she constantly thinks and worries about exacerbating her pain, has poor pain coping techniques, tends to become easily overwhelmed, has disturbed sleep and is fatigued and how these difficulties impact her stress tolerance. Her evidence was fundamental to my finding that the applicant’s impairment level significantly impeded her useful functioning within the Adaptation domain as set out in the Guides.

56I also prefer the evidence of Dr. Becker to that of Dr. Chandrasena. Dr. Becker conduced a thorough and comprehensive review and analysis of the applicant’s mental/behaviour disorder, the impact of the mental or behavioural disorder on the applicant’s life and the resulting level of impairment in view of the impact of the mental or behavioural disorder. Dr. Chandrasena’s analysis, on the other hand, was cursory in nature and failed to provide an adequate explanation as to how he reached his conclusion that the applicant suffered a class 2 “Mild” impairment in the Adaptation domain as set out in the Guides. I acknowledge that it is possible that the applicant improved in the time between Dr. Becker’s evaluation and that of Dr. Chandrasena’s. However, I find that Dr. Chandrasena did not provide convincing evidence of this.

57Dr. Chandrasena’s draft report dated July 30, 2017 also raises some concerns about his ultimate finding that the applicant sustained a class 2 “Mild” impairment in the Adaptation domain as set out in the Guides. Dr. Chandrasena, in his draft report, indicates that the applicant suffered a class 3 “Moderate” and class 4 “Marked” impairment in the Adaptation domain. Even though those impairment levels were circled by Dr. Chandrasena in his draft report, he testified that he cannot find any evidence to suggest that the applicant is markedly impaired. He continued to explain that he circled the moderate and marked impairment levels in his draft report as part of a training exercise for the upcoming changes in the legislation. Dr. Chandrasena also went on to explain that the evidence suggests that the applicant has been able to adapt to her circumstances. I do not share this opinion and find Dr. Chandrasena’s explanation regarding his draft report to be troubling.

58Again, the applicant’s mental or behavioural disorders undermine her ability to cope and adjust, leading to an increased perception of pain and increased functional decompensation, resulting in a more pronounced level of disability. I find that the applicant’s functioning in the area of adaptation has been significantly impeded and that she has been unable to return to the independence she enjoyed before the accident, making it difficult for her to maintain her activities of daily living, continuing social relationships, and completing tasks. Dr. Chandrasena’s opinion does not persuade me to discount this finding.

59I also note that the purpose of a catastrophic impairment assessment from an Occupational Therapist’s perspective is to provide functional data and information to the catastrophic team which will assist in determining the appropriate rating for the client in each of the four domains. In this case, I find that Ms. Kara’s assessment provided a more in-depth and comprehensive analysis of the applicant’s stress tolerance and her ability to cope than that of Mr. Morgan’s. I also find that Ms. Kara’s findings were consistent with the totality of the evidence before which spans from the date of the accident to the date of the hearing. As a result, I find that the occupational therapy assessment put forward by Ms. Kara provided more meaningful functional data and information to the catastrophic team when assessing the appropriate impairment rating for the applicant in the four domains.

60As a result, I find that the applicant is more appropriately assessed at a class 4 “Marked” impairment in the Adaptation domain as set out in the Guides.

CONCLUSION

61For the above reasons, I conclude that, on the balance of probabilities, the severity of the applicant’s level of impairment with respect to the Adaptation domain as set out in the Guides constitutes a catastrophic impairment pursuant to section 3(2)(f) of the Schedule.