[J.H.] v. CUMIS General Insurance Company, 2020 CanLII 14471

Citation: [J.H.] vs. CUMIS General Insurance Company, 2019 ONLAT 18-012367/AABS

Released Date: 01/14/2020

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:

[J.H.]

Applicant

and

CUMIS General Insurance Company

Respondent

DECISION

ADJUDICATOR: Cezary Paluch, Member

APPEARANCES:

For the Applicant: [J.H.] Amelia The, Counsel

For the Respondent: Tripta Sood, Counsel

HELD IN PERSON: September 24, 25, 26, 27 and 30, 2019

WRITTEN SUBMISSIONS: October 15, 31 and November 12, 2019

OVERVIEW:

1On November 24, 2015, the applicant, J.H., a 31-year-old woman, was injured as a pedestrian when she was struck by a car in a mall parking lot while pushing a grocery store cart with her 3-month-old son inside. The impact caused her to fall to the ground. She was transported to a hospital by ambulance and released the same day. She applied for and received benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”)¹ from the respondent, CUMIS General Insurance Company (“Cumis”). C paid numerous medical and rehabilitation benefits.

2On October 17, 2018, the applicant applied to CUMIS for a determination that her accident-related injuries resulted in an impairment that met the statutory threshold for a “catastrophic impairment” as defined in the Schedule.² Catastrophic impairment status is not itself a benefit but must be determined before entitlement to enhanced benefits can be assessed.

3After a series of multi-disciplinary Insurer’s Examinations (“IEs”), Cumis determined that J.H. did not sustain a “catastrophic impairment” and denied any treatment beyond the limits prescribed in the Schedule. It also denied her ongoing claim for Income Replacement Benefits (“IRBs”) on the basis that she did not have a complete inability to work in her pre-accident occupation. CUMIS further denied J.H.’s claim for certain medical benefits on the basis they were not reasonable and necessary.

4The parties participated in settlement discussions at the case conference held on April 10, 2019 but were unable to come to a resolution and the matter proceeded to an in-person hearing held in […] Ontario with final submissions in writing.

Position of each party:

(a) The applicant

5The applicant submits that, after the accident, her emotional symptoms are most problematic and negatively impact every aspect of her life. She feels depressed, overwhelmed, has low energy, and difficulty sleeping. As a result, she submits that she meets the definition of a catastrophic impairment as set out in the Schedule because she has a marked or an extreme mental and behavioural disorder in at least one of four defined psychological domains.

6The applicant also submits that she is unable to work and requires additional physiotherapy/psychological treatment.

(b) The respondent

7The respondent submits that the applicant sustained soft tissue injuries. With respect to her psychological impairments, including depression and anxiety, Cumis submits that it has funded psychological treatment for almost four years, and the applicant has achieved sufficient recovery to return to her pre-accident activities.

8I find the applicant did not suffer a marked or extreme impairment in any of the four domains as a result of the accident. Overall, in examining the evidence as a whole, I preferred the respondent’s medical assessments and conclusions over those of the applicant because their findings were based on a more thorough clinical assessment and reasonable interpretation of the Guides, and were more consistent with the overall evidence and J.H.’s actual level of functioning.

ISSUES:

9The following are the issues to be decided as per the Case Conference Order dated April 10, 2019, and also Motion Order dated September 16, 2019.

10Has the applicant suffered a “catastrophic impairment” that results in a class 4 marked impairment or class 5 extreme impairment due to mental or behavior disorder.

11Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from September 3, 2019 to present and ongoing?³

12Is the applicant is entitled to receive the following medical benefits:

(i) $1,553.60 for physiotherapy, recommended by Physiomed in a treatment plan dated June 9, 2017 denied by the respondent on June 20, 2017?

(ii) $2,991.80 for physiotherapy, recommended by Physiomed in a treatment plan submitted April 4, 2018, denied by the respondent on April 12, 2018?

(iii) $337.19 for the HST on psychological treatment (original treatment plan $2,930.93), recommended by Injury Management and Medical Services in a treatment plan dated October 11, 2018, denied by the respondent on October 24, 2018?

(iv) $2,991.80 for chiropractic treatment, recommended by Physiomed in a treatment plan submitted August 23, 2017, denied by the respondent on August 31, 2018?

13Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

14Is the applicant entitled to interest on any overdue payment of benefits?

RESULT:

15I find that J.H. did not sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident. Although J.H. did suffer a mental or behavioural disorder because of the accident, in my view the resulting impairment is not severe enough to qualify as a catastrophic impairment. Accordingly, I find that she is not entitled to the extended policy limits.

16J.H. is entitled to an IRB in the amount of $400.00 for the period of September 3, 2019 to date and ongoing.

17I find that an award in this matter is not appropriate as Cumis did not unreasonably withhold or delay payment of benefits.

18I also find that the respondent is required to pay the HST in the amount of $337.19 for the HST on psychological treatment (original treatment plan $2,930.93).

19The only benefit that is overdue is the IRB. Therefore, interest is only payable on the IRB in accordance with the Schedule.

The Law:

20The Schedule sets out several different categories of catastrophic impairment. A finding of catastrophic impairment in any one of these categories entitles an insured person to claim enhanced accident benefits provided he or she meets the eligibility criteria. Here, the applicant claims she has sustained a catastrophic impairment pursuant subsection 3(2)(f) of the Schedule or what is commonly referred to as Criterion 8.

21That paragraph defines a catastrophic impairment as an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, (the “Guides” or “AMA Guides”) results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

22The Ontario Court of Appeal in Liu v. 1226071 Ontario Inc.,⁴ confirmed that the test of catastrophic impairment is a legal test and not a medical test. As such, it is the trier of fact who ultimately makes the finding based on objective medical evidence.

23The Schedule requires that medical professional’s rate or evaluate psychological impairment of function using the criteria and methods set out in Chapter 14 of the Guides, entitled Mental and Behavioural Disorders. Using this chapter, assessors look at four categories or areas of functioning to derive their ratings based on the severity of the claimant’s impairments:

1. activities of daily living (ADLs);
2. social functioning (SF);
3. concentration, pace and persistence (CPP); and
4. adaptation (AD).

24The Table, at page 301 of the Guides, provides for an ordinal rating of mental impairment for the above four categories on a five-class continuum scale in ascending order of severity from Class 1 (no impairment) to Class 5 (extreme impairment). The word descriptors for each class are also important because they assign meaning to each category. For example, Class 3 (moderate) impairment levels are compatible with some, but not all, useful functioning – whereas, Class 4 (marked) impairment levels significantly impede useful functioning.

25The burden of proof rests with J.H. on a balance of probabilities. Moreover, because this accident happened in 2015,⁵ only one marked impairment of a single area or aspect of functioning is enough to designate J.H. as catastrophically impaired.⁶ Therefore, J.H. must prove that the impairments she suffered as a result of the accident have resulted in at least one Class 4 (Marked) impairment in any of the four domains due to a mental or behavioural disorder.

26The applicant relies on the opinion of Dr. L. Kiraly, psychiatrist, who rated the applicant at a Class 4 (marked) in two areas of functioning. More specifically, he assessed J.H. as a Class 4 (marked) in Concentration, Pace and Persistence (CPP) and Adaption (AD). As well, in support of this position, the applicant’s Catastrophic Impairment Executive Summary was signed by Dr. T. Getahun, orthopaedic surgeon, who opined that J.H. satisfies Criterion 8 for determination of catastrophic impairment because she was found to have two marked impairments.

27For its part, the respondent relies on the opinions of an assessment team consisting of Dr. S. Dessouki, physiatrist, Dr. R. Lubbers, psychologist, and Ms. Judy Phillips, OT. The summary report dated March 6, 2019, prepared by Dr. B. Meikle and signed by all three assessors rates J.H. as a Class 3 (Moderate) in three areas of functioning: namely, Activities of Daily Living (ADL), Concentration, Persistence and Pace (CPP), and Adaption (AD) and a Class 2 (Mild) in Social Functioning (SF). Therefore, the report concludes that, since J.H. was not rated as a Class 4 in any of the four domains, she does not meet the definition of “catastrophic impairment.”

28None of the medical experts concluded that the applicant suffered at a Class 5 (extreme impairment). Therefore, for the purposes of this proceeding, the real issue I must decide is whether J.H. has a Class 3 (moderate) or Class 4 (marked) impairment within any one of the four categories (more specifically within CPP and AD, as both experts agree that J.H. was rated in Class 3 or Class 2 for ADL and SF).

29I will now examine the evidence in respect of the applicant’s impairment due to mental or behavior disorder.

ANALYSIS:

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

30In Pastore, the Court of Appeal summarized the following three-stage approach to deciding the issue of catastrophic impairment due to mental or behavioural disorders:⁷

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

(ii) If it did, what is the impact of the mental or behavioural disorder on the applicant’s life?

(iii) In view of the impact, what is the level of impairment?

31The Tribunal has followed this approach in 16-003415/AABS v Allstate Insurance Company of Canada⁸ and I apply the same methodology here.

1. Did the accident cause J.H. to suffer a mental or behavioural (psychological) disorder?

32I find that the accident was the main cause of bringing about J.H.’s psychological impairments or injuries. This finding is based on my conclusion that the applicant’s cognitive difficulties, pain, anxiety, sleep difficulties and depression only began after the accident. The timing and progression of the pain and injuries, especially since it has now been nearly four years since the accident, and the symptoms continuation despite myriad treatment and prescribed medication, support a direct link to the accident.

33Both the applicant and respondent’s experts generally agree that the applicant suffered a psychological impairment as a result of the accident. For example, the respondent’s own expert, Dr. R. Lubbers, who assessed the applicant on two separate occasions, diagnosed her with Major Depressive Disorder and features of PTSD “stemming from combined accident and non-accident factors”⁹ also noting in his report that he was not provided with any compelling evidence of a pre-existing psychological/mental condition. Another, IE assessor, Dr. M. Costa El-Hage, provided the opinion that the applicant suffered from Post-Traumatic Stress Disorder as well as Adjustment Disorder with Mixed Anxiety and Depressed Mood “in direct relation to the index accident”.¹⁰

34Having considered the evidence offered both orally and in the written reports, I am convinced by the evidence, on a balance of probabilities, that the applicant suffered from a mental or behavioural disorder(s) as a direct result of the accident and the trauma of the accident has exacerbated emotional distress from past traumatic events. The applicant has proven that, but for the motor vehicle accident, she would not be suffering the impairments which caused the complaints upon which she bases her claim.

Diagnosis

35The methodology of the Guides requires that the presence of a mental disorder be documented primarily on the basis of reports from accepted professional sources, such as psychiatrists, psychologists and other health professionals.

36The medical practitioners have diagnosed the applicant with varied conditions, and the parties differ somewhat regarding the correct diagnosis. For example, the applicant’s principal expert witness, Dr. L. Kiraly, psychiatrist, made the following diagnoses:

(i) Major Depressive Disorder;

(ii) Chronic Pain Associated Disorder (due to psychological factors and general medical condition); and

(iii) Post-Traumatic Stress Disorder (PTSD).

37As well, Dr. T. Getahun, orthopaedic surgeon, who signed the Catastrophic Impairment Executive Summary Report dated October 31, 2019, and who testified at the hearing, diagnosed a chronic pain syndrome affecting the cervical and lumbosacral spine.

38Briefly, as set out in the summary report dated March 6, 2019, the respondent’s assessors determined that J.H. has the following accident-related conditions:

(i) Major Depressive Disorder;

(ii) Features of PTSD (mild to moderate);

(iii) Post-Traumatic Headaches.

39The respondent’s principal catastrophic determination expert, Dr. R. Lubbers diagnosed the applicant with Major Depressive Disorder and features of PTSD (mild to moderate). He did not agree that the applicant met the full criteria of PTSD and explained in his testimony that the applicant has hope for a recovery and her mood had improved.

40A review of additional reports and evidence reveals that Dr. M. El-Hage, psychologist, in her Psychology Assessment dated May 5, 2016, also diagnosed PTSD, and Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr. S. Hosseini, physiatrist, diagnosed the applicant with post traumatic headaches and occipital neuralgia with migraine features, cervical, thoracolumbar, right.¹¹

41All of these diagnoses mean that the applicant has had obvious emotional difficulty adapting to and coping with her many psychological and physical symptoms, including pain, headaches, and sleep difficulty since the accident. Although I note that Dr. Lubbers felt J.H. did not meet the criteria for a PTSD diagnoses, he still acknowledged that she did have features of this impairment. I have no doubt that getting hit by a vehicle while walking with your 3-month-old child in a grocery cart constituted a traumatic event for J.H. Indeed, she described to Dr. Lubbers that the grocery cart was “ripped out of [her] hands,” her son landed 10 feet away, and she immediately ran to comfort her crying baby. Added to this unfortunate event was that the driver of the vehicle inexplicably blamed J.H. for pushing the baby in front of the car and, when the paramedics arrived, she was informed that her son would have to be taken to a different hospital than where she was being taken. J.H. did not want to be separated from her child and I am certain all of this caused additional unnecessary stress.

42I find that, regardless of the differences in the specific diagnoses amongst the medical practitioners, the consensus of medical evidence is that the applicant’s impairments result from psychological issues (anxiety, depression and post-traumatic stress disorder), and the diagnosis of some form of depression disorder combined with a pain disorder and PTSD best describes her symptomology.

43Once the cause(s) of any psychological impairment has been determined, and related to the accident, the next step is to assess the impact on the applicant’s daily functioning.

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

44The applicant testified that, just before the accident, she was on maternity leave, having been working full-time as a pharmacy assistant, and was enjoying a normal life with her spouse. They recently purchased a home together. She went to the gym regularly and socialized with her friends. This was supported by J.H.’s family doctor, Dr. J. Moreno, who saw her prior to the accident for pregnancy and post-partem care and testified that J.H. “was healthy as far as I know.”

45After the accident, the applicant was a totally different person and the accident seemed to impact every aspect of her life. She firmly believes that she cannot do the normal things that she used to do, and that her normal activities of daily living, as well as her ability to complete tasks and maintain social and familial relationships are significantly impeded. In her testimony, she explained a number of impacts that the accident has had on her. She does not have energy to engage with her kids. She experiences anxiety and has to prepare herself to leave the house. She has trouble sleeping for which she uses various techniques. She could not count pills when she tried to return to work. She has cut herself off from rest of the world. She does not enjoy marital relations as much as she did before. She has seen so many doctors that she does not remember some visits. No doctor has ever told her condition will get better. And she feels depressed.

46Dr. J. Moreno testified that, after the accident in January 2016, she treated J.H. for anxiety, changes to her mood and nightmares related to the accident and that she was worsening over the first few months. Dr. Moreno explained that this is a complicated case, and that she has not seen any sustained improvement in J.H.’s psychological condition (only small improvements) over the time she treated J.H.

47I made observations of J.H. during the hearing. She testified on two separate days as her testimony carried over. I am cognizant that my observations of her are but a snapshot in time in her life. I simply note my observations here. She appeared well-groomed, polite and answered all questions put to her. At the hearing, she sat for extended periods of time and moved about freely and did not ask for breaks. She did have some difficulty projecting her voice and was asked to repeat her answers several times. On the second day, during cross-examination, she became emotionally very upset and broke into tears, resulting in a recess. When she returned, she advised that she took a sedative and was willing and able to continue with the questioning. She was only present at the hearing during the time she was required to testify and did not attend the rest of the days, but I did not conclude anything from this.

48There were several psychological progress notes filed in this matter, which I found helpful. The Psychological Progress Note of L. Wagner, psychological associate, and B. Neufeld, psychotherapist, dated December 19, 2017, noted that the applicant continues to suffer physical pain and has significant anxiety, depressed mood and the trauma of the accident has re-activated and exacerbated emotional distress from past traumatic events. The prognosis at that time was guarded given the elapsed time since the accident.

49After considering the evidence before me, particularly the testimony of the applicant and her family doctor who knew her prior to the accident, and that she continues to experience pain, anxiety, depression, and feelings of sadness, I find that the weight of the evidence supports a finding that the accident resulted in a mental or behavioural disorder which impacted the applicant’s daily functioning.

50The third step in assessing the effect of the mental or behavior disorder on the applicant’s life is to determine the severity of the impairment in each of the four domains according to the criteria of mild, moderate, marked or extreme as set out in the Guides.

The Four Spheres of Function:

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

51I find that the applicant is not catastrophically impaired because her impairments do not rise to level of being “marked’ within any of the four domains.

52As stated previously, Dr. L. Kiraly rated the applicant at a Class 4 (marked) in two areas of functioning (CPP and AD). In contrast, Dr. Lubbers rated her as a Class 3 (Moderate) in three areas of functioning (ADL, CPP, AD) and a Class 2 (Mild) in social functioning (SF).

53Overall, I prefer Dr. Lubbers’s opinion regarding catastrophic determination over that of Dr. Kiraly because the evidence is more consistent with the opinion of Dr. Lubbers. My review of the entire evidence is that the applicant is able to engage in a substantial number of activities, including acting as primary caregiver to her two young children, without any demonstrated significant impairment. She should, at the most, have a moderate or Class 3 impairment.

Credibility Assessment

54The Guides instruct the physicians evaluating impairments to be aware of the possibility that obtaining monetary awards increases the likelihood of malingering or exaggeration of symptoms, although it is rare.¹²

55Cumis raised a number of concerns with respect to the applicant’s credibility, questioning the extent of the applicant’s impairments. I disagree and find the preponderance of evidence rules out malingering or deliberately conscious feigning.

56The one difficulty I had was with J.H. reporting to Mr. Moy that she requires supervision due to her inability to complete her daily activities.¹³ I questioned how J.H. could possibility require such supervision when she was taking care of her children on a daily basis.

57Overall, however, I found that the applicant was generally credible, and the evidence rules out malingering or deliberate magnification of symptoms. I have evaluated her testimony on a standalone basis and based upon the consistency with the testimony of other witnesses together with the documentary evidence. I agree that there were some discrepancies with respect to some of her evidence, but, for the most part, the applicant was credible and testified in an honest, direct manner.

58I also draw no adverse interference, as requested by the respondent, regarding the applicant admitting in cross-examination that she deactivated her ‘Facebook’ account. The respondent argues that the applicant did this to apparently conceal information that suggests that she is more active than she is willing to admit. I do not know what specific information, or perhaps photographs, the applicant was apparently trying to conceal on this social network site, if any. As well, the applicant testified that she closed the account for other reasons related to privacy concerns. This was a reasonable explanation. Therefore, it would not be appropriate to draw an adverse inference regarding JH’s credibility, as it would involve me in a process of speculation.

59I now return to the three-step process set out in Pastore to address briefly each area of functioning.

1. Activities of Daily Living (ADLs)

60The Guides include in this category activities such as self-care and personal hygiene, eating, preparing food, communicating, speaking, writing, maintain one’s posture, standing and sitting, caring for home and personal finances, walking, travelling, recreational and social activities, driving, sexual activity, hobbies, and sleep.¹⁴

61Regarding the rating for this category, the parties’ medical experts agreed that the appropriate rating was not catastrophically impaired, as they both rated the applicant as moderate (Class 3). It was clear from the testimony of the witnesses that J.H. was still independent, for the most part, with respect to personal care, housekeeping and caregiving tasks with her children. The evidence established that she was still attending to her self-care needs as evidenced by her walking to a tanning salon, colouring her hair, adding false eyelashes and getting lip injections. With respect to caregiving tasks, she took her son to soccer, helped dress her kids, and admitted being fully involved with her children. Indeed, as her husband was working full-time during the day, it was she who took the kids to appointments, activities and play dates.

62The applicant was able to do some housework, she went shopping, she shared in banking tasks, she was able to drive, including driving herself to medical appointments. She walked her dogs regularly, she travelled on a vacation to Jamaica and to a family cottage in Haliburton. She went out to restaurants (e.g., McDonalds) and activities with her children, including soccer, and regularly saw her family and friends (although again less than before). She still regularly engages in marital activities (albeit less than before) and participated in a weekly group chat with her friends by using her phone to text.

63This was consistent with the observations made by Judy Philips, OT, who conducted a two-day in-home situational assessment of J.H.’s activities and testified that J.H. has resumed going to the gym (this was also reported in Dr. Lubers’s assessment of August 27, 2019). Similarly, the applicant’s own OT expert, Mr. J. Moy, testified at the hearing that, when he attended J.H.’s home to conduct his assessment, he did not see that J.H. had any signs of poor hygiene or neglect, that she was well-groomed and he did not see any evidence of her home being dirty or unkept.

64As well, I found the surveillance evidence to be a compelling indication that J.H. is mostly functional in her daily activities.

65I have nothing further to add to that. Based on the above, I find a moderate level of impairment in activities of daily living.

2. Social Functioning (SF)

66This category refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others, including family members, neighbours and friends.¹⁵

67Regarding the socialization category, the parties’ medical experts essentially agreed that the appropriate rating was not catastrophically impaired even though they each rated J.H. in different classes. Dr. Kiraly rated the applicant as moderate (Class 3) and Dr. Lubbers rated her as mild (Class 2)– neither classification met the required threshold of a Class 4.

68With regards to this domain, there was quite a bit of evidence and testimony provided by the assessors that J.H. functions reasonably well. All of the assessors confirmed that she was able to communicate coherently, maintained eye contact and was oriented, polite and cooperative. For example, in cross-examination Dr. Moreno testified that she was always pleasant, spoke normally, and that he had never seen any improper behavior. Similarly, the applicant’s own OT expert, Mr. Moy, stated that he had no issues communicating with J.H. at any time over two days of his assessment. Finally, Ms. Philips, OT, also testified that during her in-home assessment she had no problems communicating with J.H., who she described as calm, polite and who gave appropriate responses even with two young children in the home.

69Although Dr. Kiraly’s report concluded that J.H.’s social function is affected, as she is socially withdrawn and isolated, he acknowledged that there has been some improvements following the use of anti-depressant medications. I also note here that I did not accept Dr. Kiraly reporting that “she stays home most of the time.” His reliance on this self-reporting without any collateral evidence, or interviews with other sources¹⁶ to substantiate this important aspect of functioning give less weight to his rating in my mind. My review of the evidence from multiple sources, including J.H. herself, was that she does leave the house regularly even if this may be hard for her. In cross-examination, she conceded that she goes out with the kids to do activities, including the park and soccer games. She testified that she does occasionally have friends over and that she sees her mother regularly as well as her brother with whom she has a meaningful relationship. She regularly participates in a group chat with her friends using her phone, which demonstrates a certain level of interaction and ability to get along with others.

70Surveillance shows that the applicant is capable of some level social interaction. Most significantly, on Saturday, December 16, 2017, the applicant appears to be fully engaged playing with her son and is seen playing in the snow at the park with her son. The applicant is seen pulling a sled, climbing a snow-covered hill, squatting, throwing snowballs, and standing on a ski sled down a small hill.

71Objectively, I found J.H. to be quite attentive and focused during the two hearing days she was in attendance. Aside from the one incident described above, she was able to remain focused during her lengthy testimony and, in my view, answered all of the questions posed to her appropriately without much difficulty.

72Lastly, the Guides explain that impaired social functioning may be demonstrated by a history of altercations. Throughout the hearing, I did not hear anything about any such altercations with friends or inappropriate behavior towards others. This was very consistent with Dr. Kiraly’s report, which did not report a history of altercations. Although J.H. reported to Dr. Lubbers a strain in her relationship with her common law spouse, in my view there was still no evidence of any altercations in the relationship, the couple remained together, and J.H. appeared committed to the relationship.

73Based on the above, I find a mild to moderate level of impairment in social functioning.

3. Concentration, Persistence, Pace (CPP)

74I find that J.H.’s level of impairment in concentration, persistence and pace is moderate.

75This category refers to the ability to sustain focused attention long enough to permit the completion of tasks. In activities of daily living, concentration may be reflected in terms of ability to complete everyday household tasks.

76I find the Guides’ definition of mild impairment (“impairment levels are compatible with most useful functioning”) is a better fit than a rating of marked impairment. Essentially, I prefer Dr. Lubbers’s rating over that of Dr. Kiraly since I found the former’s assessment of the applicant more comprehensive and consistent with the interpretation of the Guides.

77In addition, I also found Dr. Lubbers’s assessment more consistent with the in-home assessments conducted by both parties’ occupational therapists’ who both conducted situational testing to evaluate how well J.H. was able to complete certain everyday tasks. Although neither OT offered an opinion on a catastrophic impairment rating, their observations of the applicant constitutes a valuable source of objective information about J.H.’s functional abilities to address this domain.

78As part of the multi-disciplinary assessment, Ms. Philips, OT, conducted her assessment on January 14, 2019 to provide contributory information regarding J.H.’s functioning. Ms. Philips asked J.H. to complete 7 situational tasks (research, travel planning, meal planning, tidying up activity, scheduling activity and medication dispensing activity and community outing). J.H. was able to complete six of the seven tasks (with two tasks being completed within the time limits prescribed and four tasks where she needed some additional time). The one task she was not able to do (community outing) was because her sons were with her and were ill. Overall, with respect to any functional limitations that she was able to observe during the testing, Ms. Philips testified that “I would not say it was significant she did have some difficulties…my observation were she worked a bit slower.” Ms. Philips’ March 6, 2019, report, at page 20, notes that J.H. “worked at slower pace...she made errors in specific situational tasks and required a break.”

79On behalf of the applicant, Mr. Moy, OT, also conducted a functional assessment on March 19, 2018, at J.H.’s home. Mr. Moy asked J.H. to complete six situational tasks (dressing activity, card activity, kitchen activity, emergency situation, transportation, calendar activity and outdoor activity). J.H. was able to complete five, refusing to do the outdoor activity, which required her to go to a nearby supermarket, because she explained that she had severe pain symptoms, anxiety, dizziness and fatigue.

80The Guides suggest that strengths and weaknesses in mental concentration may be described in terms of frequency of errors, the time it takes to complete the task, and the extent to which assistance is required to complete the task.¹⁷ Applying this recommendation to the facts of this case, I find that J.H. was able to complete most of the tasks within a reasonable prescribed time (e.g., card activity only took about five min.; kitchen five min.; and emergency two min.) and she needed only minimal cuing or assistance.

81Out of all of the testing completed by the OTs, perhaps the most telling example, which further demonstrates J.H.’s actual functioning level, is the ‘Calendar Activity’ (where she was asked to organize appointments into a weekly schedule). Here, J.H. was able to use a number of strategies and entered 11/17 appointments correctly. She followed four of five rules she was instructed to follow and completed this task in 20 minutes. Afterwards, she provided to Mr. Moy the following telling responses to explain how she went about completing this task: “Read through it, highlighted and prioritized what was most important. Kept reading through it.” I also note that Mr. Moy provided a Level 3 version to J.H., which I understand, is a more complex version with extraneous information that requires use of strategies.

82These objective results demonstrate that, although J.H. was not able to complete the weekly calendar and obtain a perfect score (as Mr. Moy highlighted in his report at page 24), she was still able to complete 65% of the appointments correctly which is more than half, followed nearly all the rules and was able to use appropriate strategies.

83In my view, these test results are clearly more in line with impairment levels being compatible with some, but not all, useful functioning. To this same point, Mr. Moy concluded in his report, under the heading ‘Opinion’ that “from a purely functional point of view, it appears that J.H. possesses sufficient physical and cognitive independence to function within her home and to access the community while using strategies and modifications.” My reading of this is that J.H. can adequately function within her home, and that Mr. Moy’s observations are more consistent with a moderate impairment. In cross-examination, Mr. Moy conceded that J.H. can manage her day-to-day household duties and that she was able to do the situational assessment in 15 minutes which was a reasonable amount of time.

84In his testimony, Dr. Lubbers referred to an example at page 302 of the Guides, where a 27-year-old woman with a 9-year history of chronic paranoid schizophrenia who did not work, lived with her parents and was financially supported by them, and needed constant reminders to bathe, take her medication and complete household chores. She had no friends, her attention span was limited to 25-30 minutes, and she was unable to complete a thought. The evaluator believed that this person was moderately impaired as to concentration, pace and persistence. I am cognizant that this is just one example, and every case is different. But this example diverges dramatically from J.H., who did not live with her parents or rely on them for financial support. (To the contrary, she owned a home with her husband and was able to maintain it). Moreover, her attention span was adequate, and she did not need prompting to bathe or take her medication.

85Under this domain, I found Dr. Lubbers’s assessment more detailed, balanced, and superior to the assessments of Dr. Kiraly. Dr. Kiraly provided very little basis for his rating, no analysis, and limited examples and detail to support his marked rating, other than to very generally conclude that she “is preoccupied with her pain symptoms and mood problems. Her mood problems are severe and fluctuating. She cannot focus on the subject at hand and gets easily distracted.”

86The Guides require the assessor to “describe in detail the severity of the limitation imposed by the disorder…giving examples.”¹⁸ Although Dr. Kiraly does state in his report that J.H. prior to the accident was “carrying out her role functions without any difficulty…[and] her social functions,” he does not elaborate further what specific activities/functions he is referring to. Similarly, Dr. Kiraly states that J.H. “has lost enjoyment of all her leisurely activities” but, again, does specify what activities he is referring to. The Guides speak to “detailed descriptions of the individual’s activities” as being part of the methodology in the Guides. These important details and examples were lacking in Dr. Kiraly’s report. In my view, a proper evaluation of an impairment under this domain should include both qualitative and quantitate considerations, and, in this case, clarify how often J.H. leaves her house and for what periods? How often does she see her family, friends? What were her “role functions”? What activities was she involved with prior and is she able to do any or only some or part of these activities and how often?

87One more example of this imprecision and lack of detail, Dr. Kiraly mentions that J.H. “cannot focus on the subject at hand…[and] gets distracted very easily.” However, he does not stipule how long her attention span was, or what she had trouble focusing on. Furthermore, I had trouble reconciling how Dr. Kiraly could, on the one hand, conclude that J.H. had trouble focusing on the subject at hand yet, on the other hand, acknowledge that she was able to complete the Montreal Cognitive Assessment Test (MOCA) with him within the given time of ten minutes and score 27/30, which was within the normal range. Her Mini Mental Status Examination score with Dr. Kiraly was 28/30, which is almost a perfect score. In this respect, I note that the Guides state that taking a standardized test requires concentration, persistence, and pacing, so it appears that J.H. was able to do very well on the MOCA and Mental Status Examination. I also note that Dr. Lubbers’s assessment lasted four hours and 15 minutes (of which the actual testing was two hours) and she was able to complete the four hours evaluation without any significant breaks. Similarly, Mr. Moy in his OT Functional Assessment Report noted that J.H. was able to tolerate a 3.75-hour assessment on this day. All of this adds further support and bolsters my finding that J.H.’s impairment levels are compatible with most useful functioning under this domain.

88Perhaps this case is made even more complex because, as Dr. Kiraly admitted in cross-examination, this was a challenging case for him. Nevertheless, the Schedule still requires an assessor to rate an individual within the methodology set out in the Guides. The Guides are very helpful in this respect and summarize what “should” be included in any evaluation report at the beginning of Chapter 14.¹⁹ Namely: A) medical evaluation; B) analysis of findings; and C) comparison of analysis with impairment criteria under each category.²⁰

89Dr. Kiraly did conduct a medical evaluation but did not provide any detailed analysis how his clinical findings relate to the impairment and Guides criteria. But this is exactly what the Guides require the assessor to do. My reading of his report is that it does not refer in any meaningful and detailed way to the Guides. Although Dr. Kiraly certainly does confirm that the Guides were used and J.H. was assessed in the four domains, the balance of the report is devoid of any reference to the criteria in the Guides. More to the point, the Guides suggest that information from other sources, such as family members and others who have knowledge of the patient, may be useful in indicating the level of functioning.²¹ I did not see Dr. Kiraly (nor Dr. Lubbers for that matter) conduct any collateral interviews with J.H.’s family members or her spouse who may have been able to directly speak to her severity of impairments as part of observing her activities over a period of time in preparing their report.

90Finally, it is trite to say that expert witnesses are relied upon to be objective and neutral. Another concern that I have with a part of Dr. Kiraly’s report is that, in contrast to Dr. Lubber’s report, Dr. Kiraly’s report has a slight tone of submissions from an advocate rather than the findings of an objective expert. For example, at page 12, Dr. Kiraly provides a “Global Impairment rating” of a Class 4 (marked). However, the Schedule only requires that a medical professional rate impairment of function in the four categories of functioning and does not call for an overall or global rating. Later on the same page, Dr. Kiraly also refers to “courts and appeal decisions” (without specifically naming any) regarding combing non-physical impairment ratings with physical ratings to achieve a final whole person impairment rating. However, because the test for catastrophic impairment is a legal test, not a medical test, in my view, it does not require an expert medical witness to make legal interpretations and conclusions or rely on case law analysis as Dr. Kirally did.

91These deficiencies came out further in cross-examination, when Dr. Kiraly conceded that his report is deficient in certain areas. When asked if it would be important to know that J.H. had friends and family over to her house or that she goes to visit her mother regularly, Dr. Kiraly acknowledged that this would be important information to consider but that he was not aware of it.

92As a result, Dr. Kiraly assessed a marked impairment in CPP and I find it unsupportable by the balance of the evidence. I find J.H.’s impairment in this domain to be at most moderate, one that is compatible with some, but not all, useful function.

4. Deterioration or Decompensation in Work or Work-like Settings (Adaption)

93I find that J.H’s level of impairment in Adaption is moderate.

94This category refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances, the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.

95I also prefer the moderate rating assigned by Dr. Lubbers to Dr. Kiraly’s marked rating for this domain because I found it to be more consistent with the overall evidence and J.H.’s true level of functioning. I also found that Dr. Kiraly’s assessment in this category too narrow and underrated the applicant’s abilities level, since he focused almost exclusively on assigning this rating based on his finding that J.H. was not able to maintain her employment.

96The applicant only made one brief attempt to return to work and provided no details about that attempt other than to say she could not do the job as she had trouble completing the tasks and concentrating. Dr. Kiraly explained in his report that, prior to the accident, J.H. worked full-time as a pharmacist assistant and was able to carry out her functions without any difficulty. Dr, Kiraly found that, following the accident, J.H. cannot focus, lacks patience and cannot multi task. In his testimony Dr. Kiraly explained that her failed return to work certainly influenced him.

97I note that there was no evidence from co-workers or supervisors about her attempt to return to work and if they were satisfied with her performance. All of this could have been significant sources of data to determine the applicant’s actual work capabilities. Considering the Guides’ clear emphasis on the importance of assessing the applicant’s behavior during the attempt to work period, there was a noticeable lack of evidence and particulars in Dr. Kiraly’s report and testimony regarding her behavior and conduct when she attempted to return to work.

98In relation to this point, the Guides talk about “failures” to return to work or “repeated failure” to adapt to stressful circumstances or the “individual efforts” during the attempt. The use of the words “repeated failures” and use of the plural word “efforts” in describing the assessment method indicates to me that what is expected in assessing an individual’s ability to function in a work setting are several examples of attempts to return to work. Here, again, we have only one failed attempt to return to work. In his testimony, Dr. Kiraly admitted that the primary basis for his Class 4 rating under Adaptation was this single failed attempt to work in October 2018. However, he also admitted that a single failed to return to work alone does not automatically result in a Class 4 rating.

99Finally, it is clear from the Guides that adaption is relevant to all spheres of function in daily living including day-to-day activities such as parenting and household tasks, and not just work-like settings. In his testimony, even though Dr. Kiraly agreed that parenting is a work-like setting, he did not consider the applicant's day-to-day activities and that the applicant is, by her own admission, completing the vast majority of caregiving and household activities independently. Therefore, I found Dr. Kiraly’s focus in this domain too narrow, as it does not address the full spectrum of activities in this domain and I preferred Dr. Lubber’s more comprehensive assessment.

Income Replacement Benefits

Post-104 - The legal test:

100As a result of the accident, J.H. claims entitlement to an IRB from September 3, 2019 and ongoing. CUMIS paid J.H. IRBs for a period based on the Psychology Assessments of Dr. M. El-Hage dated April 12, 2016 (pre-104)²² and February 22, 2018 (post-104).²³ The responded had the applicant assessed again in 2019 when it terminated the IRB based on the Psychological Assessment of Dr. Lubbers dated August 27, 2019.

101In order to receive payment under s. 6(2) of the Schedule for the post-104 week period, the applicant must satisfy the post-104 week disability test. She must establish on a balance of probabilities that she suffers a “complete inability to engage in any employment for which she is reasonably suited by education, training or experience” as a result of the accident. This is referred to as the “complete inability” test or the “post-104 Test.” The “complete inability” test for a post-104 IRB is a higher bar than the “substantial inability test” for a pre-104 IRB.

102The parties have not raised any issue of the quantum of IRBs that may be payable to the applicant. Aside from the s. 57(2) argument raised by the respondent, which I discuss below, their submissions focus solely on whether or not the applicant meets the complete inability criteria for the IRBs.

Section s. 57(2) – Treatment and Rehabilitation

103The respondent also argues that the applicant has failed to mitigate by complying with treatment recommendations. In this respect, the respondent argues that to establish entitlement to an IRB, the applicant must prove that she has engaged in appropriate treatment in an effort to return to work.

104This obligation is set out in Schedule s. 57(2), which Cumis says the applicant failed to comply with by: failing to stop using marijuana, despite the repeated admonitions by her treatment providers; she failed to complete the October 2018 graduated return to work program arranged for and funded by her LTD insurer; and she refused to participate in a March 2019 graduated return to work program offered by her LTD insurer.

Analysis

105The applicant has a grade 12 education. At the time of the accident, she was on maternity leave from her job as a pharmacy assistant at a grocery store. She was scheduled to return on July 19, 2016, but was unable because of the November 2015 accident. The applicant described her job duties as inputting prescriptions into a computer system, answering the telephones, speaking with customers, preparing compounding creams and recording prescription information. She attempted to return one time in October 2018, when she experienced an anxiety attack on the way to work, and has not returned since. Upon discharge from hospital and seeking medical attention from her family doctor, the applicant was recommended to again remain off work.

106I find that J.H. does meet the test for eligibility for an IRB post-104 weeks. In my view, nothing really has changed since February 2018, when the insurer conducted its own multidisciplinary assessment issued on March 7, 2018 that concluded that the applicant did meet the post-104 test.²⁴ Dr. El-Hage considered J.H.s position as a pharmacy assistant and explained that:

“her emotional resources are taxed and a return to the workforce at time would further tax those limited resources. The positions outlined above require the claimant to interact with customers and deal with data, medication and/or money. Inherent in this is the need for attention to detail, emotional stability and a level of concentration that the claimant likely cannot sustain at this time.”²⁵

107Ms. R. Yeboah, who completed a comprehensive Vocational Assessment²⁶ dated January 9,2018, also concluded that the applicant suffers a complete inability to engage in any employment for which she is reasonably suited.²⁷ Ms. Yeboah reported that as a pharmacy assistant she completed a lot of clerical tasks but current testing suggested limited clerical perception which was an essential component of her job (reviewing and filling prescription) and an essential component for another she may have been reasonably suited (i.e. clerical/office jobs). This was very consistent with the applicant’s own testimony that I found credible that her job required attention to detail and concentration and when she made the attempt to return to work, she was making mistakes.

108Subsequently, the applicant was re-assessed for post-104 IRB again in August 2019. This time, Dr. Lubbers,²⁸ in his report dated August 27, 2019, stated that he has not been provided “objective and reliable evidence to conclude that the diagnosed major depressive disorder and features of PTSD are of sufficient breath and magnitude to result in a complete inability to engage in any employment for which she is reasonable suited by way of education, training or experience as a result of the accident.²⁹ However, Dr. Lubbers conducts no testing of the applicant’s cognitive abilities under work-like conditions, and defers any comment of work that the applicant could perform to a vocational expert. I could not reconcile how Dr. Lubbers was able to come to his conclusion given Ms. Yeboah’s opinion in her Vocational Assessment which was completed only a year or so earlier. For this reason, I place limited weight on Dr. Lubber’s IRB opinion and prefer the applicant’s evidence.

109In support of her claim for IRBs, the applicant relies on Dr. Getahun’s Orthopaedic Assessment dated October 13, 2018,³⁰ which concludes that J.H. is currently unable to resume any suitable employment based on her education, training and experience.³¹ Dr. Getahun reviewed the labour market survey of Ms. Rachel Yeboah and, again, concluded that the applicant was unable to resume any suitable form of employment based on her education, training and experience.

110At the hearing, Dr. Moreno gave evidence that this is a complicated case and she has not seen any sustained improvement in J.H.’s psychological condition (only small improvements) over time and she does not foresee a lot of change in her condition. This was consistent with what Dr. Lubbers reported in his second Psychological Assessment that, despite the passage of time (from when Dr. Lubbers first saw J.H. in January 2019), and with further psychotherapy and psychotropic medication, J.H. reported to him that she has not experienced any significant improvements and her condition continues to deteriorate.³²

111I find that, on a balance of probabilities the applicant is entitled to the IRB for the period sought.

112I also do not find that the applicant failed to comply with s. 57(2) of the Schedule. The evidence was unclear and unconvincing on this issue. What I did accept is that the applicant’s prescription for medical marijuana was made at the recommendation of treating physicians specifically to address her conditions of anxiety and PTSD, and to treat symptoms of headache and insomnia. At some point, when presented with conflicting recommendations, the evidence established that J.H. discontinued her medical marijuana use, so I cannot see how she should be disqualified from being entitled to an IRB in these circumstances. Again, the respondent did pay her post 104 IRB’s during a time when they were aware of the marijuana use. I agree with the applicant on this point that her medical marijuana prescription has no bearing on her current condition which remains and that she did not fail to mitigate by not complying with treatment recommendations.

Medical and Rehabilitation Benefits

113Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that the treatment plans in dispute are reasonable and necessary.

114The applicant claims entitlement to four medical/rehabilitation benefits. In her written final submissions, the applicant merely states that the treatment plans in dispute were reasonable and necessary for alleviation of her accident related condition without providing any explanation or supporting reasons.³³ The applicant also chose not to introduce any evidence at the hearing from the proposed treatment provider in support of the OCF-18s.

115I shall address the following three treatment plans for physiotherapy and chiropractic together.

(i) $1,553.60 for physiotherapy, recommended by Physiomed in a treatment plan dated June 9, 2017 denied by the respondent on June 20, 2017?

(ii) $2,991.80 for physiotherapy, recommended by Physiomed in a treatment plan submitted April 4, 2018, denied by the respondent on April 12, 2018?

(iii) $2,991.80 for chiropractic treatment, recommended by Physiomed in a treatment plan submitted August 23, 2017, denied by the respondent on August 31, 2018?

116The OCF-18s contain no explanation as to why the recommended treatment is reasonable or necessary. On cross-examination, Dr. Moreno stated that she never made a chiropractic referral and has never made any recommendations for chiropractic treatment. Similarly, Dr. Getahun, who made other treatment recommendations, admitted during cross-examination that he made no recommendation for chiropractic treatment. The applicant also admitted that by May 2016, she was already attending the gym on her own.

117Neither party has provided any evidence to support their respective positions that the fees are excessive (Cumis) or are reasonable (J.H.). As J.H. has the burden of proof on this point and has submitted no evidence in support of her position that the fees are reasonable, I find that she has not satisfied that burden. As a result, she is not entitled to these three treatment plans.

(i) $337.19 for the HST on psychological treatment (original treatment plan $2,930.93), recommended by Injury Management and Medical Services in a treatment plan dated October 11, 2018, denied by the respondent on October 24, 2018?

118The applicant has not addressed why the HST is payable. The applicant has not cited any Superintendent’s Guideline for me to consider in determining how to interpret if HST is payable on treatment plan.

119However, I note that the Superintendent of Financial Services has issued Guidelines regarding the interpretation of the Schedule. According to s.268.3(2) of the Insurance Act, “a guideline shall be considered in any determination involving the interpretation of the Statutory Accident Benefits Schedule”.

120The Professional Services Guideline No. 03/14 states:

The applicability of the HST to the services of any health care professionals or health care providers listed in this Guideline falls under the jurisdiction of the Canada Revenue Agency Superintendent’s Guideline No. 03/14 Financial Services Commission of Ontario Page 4 (CRA). If the HST is considered by the CRA to be applicable to any of the services or fees listed in this Guideline, then the HST is payable by an insurer in addition to the fees as set out in this Guideline.

121I find the Superintendent’s Guideline No. 03/14 to be clear direction that HST is payable by the respondent insurer in this case. I not have any submissions and was not referred to any supporting documents that the fees are exempt from taxation.

122Therefore, I find that the respondent is required to pay the HST on this treatment plan.

SPECIAL AWARD

123Section 10 of the Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person was entitled at the time of the award together with interest on all amounts then owing if it finds that that an insurer has “unreasonably” withheld or delayed payments. An insurer will not face a special award just because an arbitrator finds that the insurer got it wrong.³⁴

124The applicant has requested an award (commonly referred to as a “special award”) because she alleges that the respondent has unreasonably withheld the applicant’s IRBs by ignoring the opinion of its own assessor, Ms. Yeboah.

125I disagree. The evidence is that the Ms. Yeboah’s report was done in 2018 as part of a multi-disciplinary assessment which included Ms. Yeboah' s report as well as other reports. Cumis continued to pay the IRBs until 18 months later, when IRBs were terminated in 2019 based on the IE report of Dr. Lubbers. Therefore, I accept the respondent’s reasonable explanation that they did consider Ms. Yeboah's report (they continued to pay the benefit) and payments were not delayed or unreasonably withheld. The payments were continued when Ms. Yeboah’s report was issued and only stopped based on Dr. Lubber’s report over a year later.

INTEREST:

126Pursuant to s.51 of the Schedule, where a benefit is overdue interest is payable. Thus, interest is payable on the IRBs only that I have found payable.

CONCLUSION/ORDER:

127For the above reasons, I conclude on the balance of probabilities that the severity of the applicant’s level of impairment with respect to activities of daily living, social functioning, concentration and adaption as set out in the Guides does not constitute a catastrophic impairment pursuant to the Schedule.

128The applicant is entitled to an IRB in the amount of $400.00 for the period of September 3, 2019, to date and ongoing.

129I find that an award in this matter is not appropriate as Cumis did not unreasonably withhold or delay payment of benefits.

130I also find that the applicant is not entitled to the medical benefits claimed, or interest for these treatment plans under the Schedule. However, I find that the respondent is required to pay the HST in the amount of $337.19 for the HST on psychological treatment.

131The only benefit that is overdue is the IRB. Therefore, interest is only payable on the IRB in accordance with the Schedule.

Footnotes

1. 1O. Reg. 34/10.
2. 2See Application (OCF-19) dated October 17, 2018 and Executive Summary Report dated October 13, 2018.
3. 3The amount/quantum and time period in dispute were not set out in the Motion Order dated September 16, 2019 when the IRB issue was added (see para. 5). After the completion of the hearing, my order dated September 30, 2019, requested that the applicant include in her final written submissions the weekly amount of the IRB that remains in dispute together with the period that she requests this benefit be paid for which I have set out here based on the submissions as filed after the hearing.
4. 4Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at para. 30.
5. 5Prior to the 2016 amendments in the Schedule, one needed to prove that three of the areas of functioning be rated in Class 4 or 5.
6. 6See Pastore v. Aviva Canada Inc., 2012 ONCA 642 and 16-003415/AABS v Allstate Insurance Company of Canada, 2018 CanLII 8071 (ON LAT)
7. 7Pastore at para. 6.
8. 816-003415/AABS v Allstate Insurance Company of Canada, 2018 CanLII 8071 (ON LAT).
9. 9Catastrophic Psychological Assessment dated March6, 2019, page 26.
10. 10Psychology Assessment report dated April 21, 2016, page 18 of 31.
11. 11See Physiatry Assessment dated March 7, 2018.
12. 12Guides, p. 14/298.
13. 13In-Home OT Functional Assessment Report dated March 26, 2018, Report, page 25.
14. 14Guides, page ½ and 317 includes a Table of examples.
15. 15Guides page 12/294.
16. 16The Guides provide that information from other sources, such as family members and others who have knowledge of the patient may be useful in indicating the level of functioning.
17. 17AMA Guides 14/294.
18. 18AMA Guides, 14/299.
19. 19AMA Guides 14/291
20. 20AMA Guides, 14,291.
21. 21AMA Guides, 14/293.
22. 22This was part of an IE Multidisciplinary Report of Drs. Kopyti, El-Hage and R. Bullard, kinesiologist, issued on May 5 2016.
23. 23This was part of an IE Multidisciplinary Report of Drs. Hossein, Mendelsohn, El-Hage and R. Yeboah, OT, issued on March 7, 2018.
24. 24Psychology Assessment Report of Dr. El-Hage dated February 22, 2018 page. 36.
25. 25Psychology Assessment Report of Dr. El-Hage, dated Mar 7, 2018, at Tab F(2)(b), Joint Document Brief at p. 2337
26. 26She also completed a Transferrable Skills Analysis and Labour Market Survey dated January 9,2018
27. 27Vocations Assessment of R. Yeboah dated January 9, 2018, page 46 of 68.
28. 28Dr. Lubbers also completed a prior Psychological Assessment – see report dated March 6, 2019.
29. 29Psychological Report of Dr. Lubbers dated Aug 27, 2019, at page 15.
30. 30Dr. T. Getahun report dated October 13, 2018 at page 8.
31. 31Catastrophic Impairment Orthopaedic Assessment dated October 13, 2018, page 8
32. 32Psychological Report of Dr. Lubbers dated Aug 27, 2019, at page 14.
33. 33Applicant’s written Submissions, para. 83.
34. 3416-002346 v Unifund Assurance Company, 2017 CanLII 81583 (ON LAT) para. 29.