Z.R. v. Gore Mutual Insurance Company, 2020 CanLII 34430

Citation: Z.R. vs. Gore Mutual Insurance Company, 2020 ONLAT 18-000017/AABS

Tribunal File No.:18-000017/AABS

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:

[Z.R.]

Applicant

and

Gore Mutual Insurance Company

Respondent

DECISION

ADJUDICATORS: Rebecca Hines

Nidhi Punyarthi

APPEARANCES:

For the Applicant: [Z.R.], Applicant

Robert Besunder and Muhammad Alam, Counsel

For the Respondent: Arthur Camporese, Counsel

Heard: In-Person on October 3, October 4, October 5, 2018 and on February 11, February 14, April 1, and April 2, 2019, with closing submissions in writing ending on June 14, 2019

OVERVIEW

1On June 13, 2015, the applicant, [The Applicant], was involved in a car accident. He applied for accident benefits from Gore Mutual Insurance Company (“Gore Mutual”). He applied to the Ontario Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for a determination that his accident-related injuries resulted in a catastrophic impairment as defined in the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). He also disputes Gore Mutual’s denial of his entitlement to a non-earner benefit.

2An in-person hearing took place on October 3-5, 2018, and on February 11, February 14, April 1, and April 2, 2019.

3[The Applicant’s] witnesses at the hearing consisted of himself, Ms. Arora (treating occupational therapist), Ms. Grant (treating personal support worker), and expert witnesses Dr. Getahun (orthopedic surgeon), Dr. Basile (neurologist), and Dr. Waisman (psychiatrist). The respondent’s witnesses consisted of expert witness IE assessors Dr. Paitich (orthopedic surgeon), Ms. Matrosov (occupational therapist), and Dr. Zielinsky (psychiatrist).

4The Tribunal considered all the evidence submitted by both parties in arriving at its decision. Important to the Tribunal’s findings were [The Applicant’s] treatment records (e.g., family doctor notes, surgeon’s post-operative notes, occupational therapist’s intervention reports) and expert reports tendered by both parties between the date of the accident and the summer of 2018.

ISSUES IN DISPUTE

5The Tribunal was asked to decide the following issues in dispute:

a. Did the applicant sustain a catastrophic impairment as defined in the Schedule?

b. Is the applicant entitled to non-earner benefits in accordance with the Schedule?¹

6The parties agreed that they will schedule a hearing regarding the other issues in dispute pending the outcome of this decision.

RESULT

7The Tribunal finds as follows:

a. [The Applicant] sustained a catastrophic impairment as defined in the Schedule, as he suffered a 55% whole person impairment (“WPI”) due to a combination of physical and psychological impairments caused by the accident.

b. [The Applicant] is entitled to non-earner benefits in accordance with the Schedule.

BACKGROUND

8On the day of the accident, [The Applicant] was the sole occupant of a vehicle. He does not recall how the accident occurred. According to reports, he lost control of the vehicle, which rolled over several times, ejecting him from the vehicle, as a result of which he hit his head, lost consciousness, and sustained numerous other physical injuries. He was found lying on the ground by a bystander who called emergency services. He reportedly had alcohol in his system, but no charges were laid by police.

9[The Applicant] was transported to [The Hospital], where a CT scan of his head revealed a right parietal-occipital-subgaleal hematoma and a slightly displaced fracture of the left lateral pterygoid plate of an undetermined age. He also fractured his neck, which required surgery at the base of his C5 and C6 vertebrae. He underwent a fixation and subluxation of the C5-C6. Metal plates were used to stabilize his neck. He remained in the hospital for approximately 22 days. Following the accident, he had ongoing pain in his right knee. Almost a year later, an MRI revealed that he had sustained a lateral meniscus tear for which he later underwent arthroscopic surgery. [The Applicant] also developed a psychological impairment as a result of his accident-related impairments.

10At the time of the accident, [The Applicant] was 22 years old, had a grade 10 education, and a pre-existing diagnosis of Attention Deficit Hyperactive Disorder (“ADHD”). His employment history includes jobs involving heavy physical labour. In the four years before the accident, he worked as a contract labourer in the oil fields in Alberta. He worked 14-hour shifts approximately 22 days each month, and would have long breaks in-between, in which he would come back to Ontario. He received a very high salary for his contract work. He has been medically restricted from returning to the same type of work as a result of his accident-related impairments. To date, he has made no efforts to retrain.

11In March 2017, [The Applicant] applied for a determination that his accident-related injuries resulted in impairments that met the statutory threshold for a catastrophic impairment under Criterion 7 and 8 of the Schedule. Under Criterion 7, he must prove that he has a combination of physical and psychological impairment ratings from medical professionals that exceed the 55% WPI threshold as outlined in Chapter 4 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”). In the alternative, he must prove, on a balance of probabilities, that the impairments he suffered as a result of the accident have resulted in at least one Class 4 (marked) impairment in any of the four domains² outlined in Chapter 14 of the Guides due to a mental or behavioural disorder under Criterion 8. [The Applicant] is only required to prove his case under one of Chapter 4 or 14, not both, and, if successful, he is determined to have suffered a catastrophic impairment and is entitled to the extended tier of benefits that accompanies this designation.

12Gore Mutual commissioned a series of assessments (“CAT IEs”) from Makos Health Associates (“MHA”), on the basis of which it ultimately determined that [The Applicant’s] WPI was 26% under Criterion 7, which does not meet the 55% threshold. MHA’s assessments under Criterion 8 determined that [The Applicant] sustained a mild impairment in all four domains from a mental and behavioural disorder, which also does not meet the catastrophic threshold. In contrast, assessments on behalf of the applicant conducted by Pearson Medical Assessment Centre (“Pearson”) concluded that his WPI far exceeded 55%. Further, Pearson determined that [The Applicant] sustained a marked impairment in adaptation under Criterion 8 which meets the catastrophic threshold.

ANALYSIS

13The Tribunal finds, on a balance of probabilities, that [The Applicant] sustained a 55% WPI under Criterion 7 due to a combination of physical and psychological impairments caused by the accident. The Tribunal does not find that [The Applicant] has a marked impairment under Criterion 8 in adaptation.

14The Tribunal arrived at this conclusion by carefully considering the evidence tendered at the hearing. The Tribunal found that [The Applicant’s] permanent impairments from the accident were consistently and credibly described by him and by the treatment team and expert witnesses who testified before the Tribunal. The presence of his impairments was also objectively grounded in the medical records before the Tribunal, including the family doctor’s notes, the surgeon’s notes, and the diagnoses arrived at by various psychologists, including those appointed by Gore Mutual. In other words, the Tribunal found an evidentiary basis for each of the WPI ratings that was combined to arrive at a 55% WPI.

15In this hearing, Gore Mutual did not tender its own neurological expert to rebut the opinions provided by [The Applicant’s] neurological expert. In addition, Gore Mutual’s experts’ discounting of [The Applicant’s] psychological condition rested on validity issues encountered during two instances of testing. The Tribunal was not satisfied with how those validity issues were explained and, moreover, found them inconsistent with the other evidence before it. In addition, the Facebook investigation and surveillance report submitted by Gore Mutual did little to displace the evidence of [The Applicant’s] impairments.

16Nonetheless, the Tribunal accepted many of the opinions of Gore Mutual’s orthopedic expert, Dr. Paitich, over [The Applicant’s] orthopedic expert, Dr. Getahun, in assigning a WPI% under Criterion 7. Finally, the Tribunal found that [The Applicant] did not suffer from a marked impairment in the sphere of adaptation, and that some of the WPI percentages being proposed for [The Applicant] were not substantiated.

A) [The Applicant] reaches 55% impairment of the whole person and is therefore catastrophically impaired under Criterion 7

17Under Criterion 7, the Tribunal finds [The Applicant] to reach 55% WPI as follows:

a. 26% for the cervical spine injury and the right knee meniscal tear (agreed to by Gore Mutual);

b. 3% for the intake of medications that mask accident-caused impairments;

c. 2% for sleep disorder;

d. 5% for occipital neuralgia on the left side;

e. 5% for occipital neuralgia on the right side; and

f. 29%, based on a finding that [The Applicant] has a class III (moderate) behavioural impairment in all four spheres, and representing the highest end of the range when a class III (moderate) behavioural impairment is converted to WPI as per Table 3 on p. 142 of the Guides.³

18Combining the percentages listed above using the Combined Values Chart in the Guides, a 55% WPI is reached.⁴ The chart below provides a summary of the parties’ submissions as to the ratings and the Tribunal’s findings:

Applicant’s CAT Summary

Respondent’s CAT Summary

Tribunal’s Finding

CRITERION 7

Physical Impairment Rating

Cervical/Lumbosacral Spine: 29%

Cervical Spine: 25%

25%

Right Knee: 9%

Right Knee 1%

1%

Medications: 3%

3%

Subtotal: 37%

Neurologic Impairment Rating

Sleep Disorder: 2%

2%

Headaches/Occipital Neuralgia: 13%

10%

Urinary Dysfunction: 3%

0

Sexual/Erectile Dysfunction: 11%

0

Subtotal: 27%

Total: 26%

Total: 36%

CRITERION 8

Marked Impairment in Adaptation

Total: 40%

Mild Impairment

(4 domains)

Total: 14%

Moderate Impairment (4 domains)

Total: 29%

TOTAL COMBINED RATINGS

TOTAL WPI: 72%

TOTAL WPI: 35%

TOTAL: 55% WPI

19The Tribunal’s findings as to the individual WPI percentages it accepts are explained in the following paragraphs.

20Other WPI percentages were also proposed on behalf of [The Applicant] for his catastrophic impairment designation, but the Tribunal was not persuaded by those WPIs on a balance of probabilities. The Tribunal will discuss these “rejected WPIs” at the end of its discussion on Criterion 7.

Mental and Behavioural Disorder: 29% (Also, Criterion 8)

21The Tribunal finds, on a balance of probabilities, that [The Applicant] has a Class III or moderate impairment in all four spheres as a result of a mental and behavioural disorder, namely in activities of daily living, social functioning, concentration, and adaptation.

22The Guides provide that the supporting evidence of mental and behavioural disorder must be documented by professionals.⁵ Subjective reporting is also important, as is evidence from ongoing treatment records.⁶ The evidence should cover a period of years from the accident, and any gaps in information or inconsistencies must be addressed.⁷

23[The Applicant’s] physical injuries immediately following the accident were noted in the head injury chart⁸ and CT scan descriptions, which are undisputed by Gore Mutual. His surgical report provided that an MRI could not be conducted due to the presence of a foreign body in his throat.⁹ Gore Mutual’s neuropsychological assessor, Dr. Watson, stated that there is “little doubt” that [The Applicant] sustained a traumatic brain injury.¹⁰

24The records of [The Applicant’s] treatment team following the accident document the impact of his injuries on his activity levels and mood. One month after the accident and resulting surgery, on July 9, 2015, [The Applicant] reported issues with his sleep and pain levels to his family doctor.¹¹ Later in 2015, he reported on two occasions that his movements progressed but there remained limitations due to his pain.¹²

25About one year after the accident, on May 12, 2016, his family doctor noted problems with his sleep, pain, and depression. A note about depression also appears in the family doctor notes in August 2016.

26In the year following the accident, [The Applicant’s] treating occupational therapist also noted his experiences of pain and corresponding limitations of his movement. His personal support worker noted his depressed mood and reduced motivation to get dressed and go out. Both the treating occupational therapist and personal support worker testified on these matters. The treating occupational therapist’s intervention reports over a year-long period were submitted in evidence.

27A year and a half after the accident, in a post-surgical follow-up report, [The Applicant’s] surgeon indicated that he is no longer able to use a Bobcat or do the same type of heavy construction work as he did before the accident due to the serious nature of his accident-related neck injury.¹³ This concern was supported by the applicant’s family doctor in his note dated December 22, 2016. [The Applicant’s] inability to return to the same employment also had a psychological impact as it affected his self-esteem and, as will be explained in further paragraphs of this decision, eliminated his ability to earn an income.

28Gore Mutual’s neuropsychological expert, Dr. Watson, indicated in his August 15, 2017 report that [The Applicant] had, as of that date, received four separate diagnoses of psychological disorders over the years following the accident: major depressive disorder, single episode and somatic symptom disorder with predominant pain, persistent (June 30, 2016); adjustment disorder with mixed anxiety and depressed mood, specific phobia – in vehicular (August 4, 2016); adjustment disorder with mixed anxiety and depressed mood, specific (isolated) phobia-situational type (vehicular anxiety), and undifferentiated somatoform disorder (December 15, 2016); and adjustment disorder with depressed and anxious mood, and specific phobia, automobile related, driver and passenger type, rule out somatic symptom disorder primarily due to pain, chronic (March 15, 2017).¹⁴ The evidence before the Tribunal did not demonstrate any challenges to these past diagnoses. The very last listed diagnosis in this list was arrived at by Dr. Zielinsky.¹⁵

29These diagnoses appear consistent with what [The Applicant’s] treating professionals found in the years following the accident, and also support Dr. Waisman’s opinion.

30Dr. Waisman opined that [The Applicant’s] clinical profile reveals endorsement of symptoms reflective of depression, anxiety and severe chronic pain, and that, given the chronicity and severity of his pain symptoms, he has developed a chronic pain disorder.¹⁶ Dr. Zielinsky also testified during his examination-in-chief that he accepted that [The Applicant] has chronic pain from the accident.

31Dr. Waisman’s assessment of [The Applicant] covered the period from the accident to the date of his report. Dr. Waisman also performed psychometric testing and used the results of that testing to inform his opinion. Dr. Waisman testified that [The Applicant’s] psychological functions were significantly impacted due to the accident, and that this resulted in an impact on his performance in all four spheres of the Guides.¹⁷

32Using the biopsychosocial approach, Dr. Waisman also put in context some of the observed behaviours on [The Applicant’s] part, such as avoidant behaviours.¹⁸ Dr. Waisman also gave specific examples of [The Applicant’s] experienced challenges in the four spheres as is required under the Guides.¹⁹

33Under cross-examination, Gore Mutual elicited that Dr. Waisman’s understanding of a marked impairment was “more than minimal.” This was not a description or definition provided in the Guides. However, Dr. Waisman identified, both in his report and cross-examination, detail and context for his conclusions with respect to [The Applicant’s] performance in the four spheres. The Tribunal found the testimony that Dr. Waisman gave in response to cross-examination to be persuasive.

34Both Dr. Zielinsky and Dr. Watson indicated in their reports that they could not formulate an opinion on [The Applicant’s] mental and behavioural disorder for the purpose of his catastrophic impairment designation because of validity issues encountered in their testing. Despite this, Dr. Zielinsky opined that [The Applicant] had a mild impairment in all four spheres.

35The validity issues imply that [The Applicant] exaggerated his performance in order to get favourable results. As discussed in further detail in the section on “Concentration, Persistence, and Pace” in this decision, these concerns are not consistent with the evidence as a whole before the Tribunal. This evidence consisted of what the Tribunal found to be credible testimony on the part of [The Applicant]. It was further supported by the psychological diagnoses that are acknowledged by Dr. Zielinsky, Dr. Waisman, and the treatment providers who worked with [The Applicant] for approximately two years after the accident.

36Furthermore, while Dr. Watson refers to validity issues in testing, he also notes that [The Applicant] reported to him that he was “never a school person.” The Tribunal accepts that [The Applicant’s] education level and ADHD diagnosis may have contributed to how he performed on these tests. Furthermore, Dr. Watson’s findings with respect to validity conflict with the other psychological assessors and diagnoses in evidence. Dr. Watson also states that there is “little doubt” that [The Applicant] suffered a traumatic brain injury. The Tribunal questions what the impact of [The Applicant’s] injuries is on the validity results that were identified, and this question was not conclusively answered.

37Keeping these concerns in mind, and noting the inconsistency of the validity issues with the larger body of persuasive evidence before the Tribunal that was identified above, the Tribunal assigns less weight to the validity results encountered in the two instances of testing by Dr. Watson and by Dr. Zielinsky.

38The Tribunal also finds that the limitations on [The Applicant’s] function in the four spheres cannot be characterized as “mild impairments” under the applicable Table in the Guides.²⁰ In other words, it cannot be said that [The Applicant’s] impairment levels are compatible with most useful functioning, considering the impact of his physical injuries, ongoing limitations from his neck surgery, traumatic brain injury, limited employability, sleep, and chronic pain disorder. All of these impairments and factors contributed to the development of [The Applicant’s] psychological diagnoses and resulting functional limitations.

39On a balance of probabilities, the Tribunal finds that the impairment levels experienced by [The Applicant] as a result of the accident are moderate in the spheres of activities of daily living, social functioning, and concentration, persistence and pace. In other words, [The Applicant’s] impairments are compatible with “some, but not all useful functioning” as described in the Guides.

40At the same time, the Tribunal does not find that [The Applicant] has a marked impairment in the sphere of adaptation. Dr. Waisman opined that [The Applicant’s] impairment level in this area had significantly impeded his useful functioning. For example, Dr. Waisman referred to [The Applicant’s] poor stress tolerance, significant use of avoidance strategies, inability to return to employment, and tendency to experience an exacerbation of distress when faced with stressors.

41The Tribunal finds these impairments supported in the evidence but on a moderate, rather than marked, level. The evidence on a balance of probabilities, supports that [The Applicant] has a moderate impairment as opposed to a marked impairment in adaptation. His psychological condition does not, on a balance of probabilities, “significantly impede all useful functioning,” which is the definition of a marked impairment. Rather, his impairments are compatible with “some but not all useful functioning” and, therefore, consistent with a moderate impairment. [The Applicant] has a moderate impairment in all four spheres as a result of a mental and behavioural disorder.

42The Tribunal will now discuss how it came to this conclusion in further detail.

ACTIVITIES OF DAILY LIVING

43The Tribunal finds that [The Applicant] has a moderate impairment in the sphere of activities of daily living as a result of his accident-related psychological impairment.

44The Guides specify that activities of daily living include: self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep and social and recreational activities. Any limitation in these activities should be related to the person’s mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual’s overall situation. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.²¹

45The evidence shows that [The Applicant]:

a. was significantly limited in his self-care in the first year following the accident due to his pain and limitations from the neck surgery. At the time of the hearing, [The Applicant] was still not routinely carrying out his self-care tasks as a result of his psychological impairment and lack of motivation;²²

b. endorsed symptoms of chronic pain disorder and depression, which impacted his ability to engage in self-care and self-improvement endeavours and socialize the way he used to. He testified that he rarely leaves his home and sometimes does not get out of bed due to his depression;

c. engaged in avoidant behaviours as a result of his pain and depression, which included limiting and ceasing to engage in his pre-accident recreational, social, and personal activities of choice from before the accident, such as going to theme parks, dirt-biking and maintaining a romantic relationship;

d. has been unable to return to his pre-accident employment, which has had a significant impact on his psychological status;

e. is limited in his ability to carry out his pre-accident cooking and housekeeping and home maintenance tasks;

f. experiences driving anxiety that limits his travel; and

g. is limited in his ability to walk or sustain a physical activity due to his psychological impairments.

46The impact of these impairments is not mild as Gore Mutual’s experts suggest. Rather, there has been a reduction in some, but not all, useful functioning, in important daily living activities, such as the ability to travel, communicate, look for employment and become employed, engage in social and recreational activities, and carry out housekeeping and home maintenance tasks. The impact of the psychological impairments on [The Applicant’s] functioning in these areas has been permanent.

SOCIAL FUNCTIONING

47The Tribunal finds that [The Applicant] has a moderate impairment in the sphere of social functioning as a result of his accident-related psychological impairment.

48According to the Guides, this area of functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. It is not only the number of aspects in which social functioning is impaired that is significant, but also the overall degree of interference with a particular aspect or combination of aspects.

49Gore Mutual tendered evidence from [The Applicant’s] Facebook as well as some surveillance evidence that showed [The Applicant] going to see a friend for a smoke; commenting on social media posts online and proposing future get-togethers; going to a few social gatherings; and drinking beer with a friend in his driveway.

50The Tribunal has considered this evidence in the context of all of the evidence before it. These records do not demonstrate that [The Applicant] is leading a well-adjusted social life similar to the one he led before the accident for the following reasons:

a. Post-accident, he has no income, which limits his degree of socialization with friends, and he cannot go to events.

b. He is no longer able to maintain a romantic relationship, which affects his ability to participate in social gatherings.

c. He is limited in his day-to-day activities due to his pain and depression. He struggles with being motivated, is avoidant, and consequently relies on his father or grandmother for socialization. He testified, and the Tribunal accepts, that he feels like he is a burden to them.

51Therefore, the impairments from the accident have qualitatively affected [The Applicant’s] overall social functioning and the degree of interference affects some, but not all, useful functioning, as a result of his accident-related psychological impairment and depression. The Tribunal finds that the level of interference can hardly be described as mild, and finds that he has a moderate impairment in social functioning.

CONCENTRATION, PERSISTENCE AND PACE

52The Tribunal finds that [The Applicant] has a moderate impairment in concentration, persistence and pace as a result of his accident-related psychological impairment.

53According to the Guides, this area of functioning refers to an individual’s capacity to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings. In activities of daily living, this may be reflected in terms of ability to complete everyday household tasks.”

54[The Applicant] has already received four psychological diagnoses stemming from the accident. These included diagnoses of major depressive disorder and a somatoform disorder. In addition, Dr. Waisman persuaded the Tribunal on a balance of probabilities that the symptoms experienced by [The Applicant] and documented in his treating professionals’ reports were consistent with chronic pain disorder. Dr. Zielinsky, in his testimony in examination-in-chief, also did not dispute that [The Applicant] had chronic pain.

55Dr. Waisman also explained the purposes of the medications that [The Applicant] was on: one was to address pain; one was to cause sedation; and another was to assist with insomnia. Dr. Waisman further explained that these medications are commonly used to treat people with depressive disorders. Gore Mutual’s experts did not disagree with this opinion on the function of the medications that [The Applicant] was taking.

56Dr. Waisman observed that [The Applicant] completed the MOCA test with difficulty, and that he appeared to be experiencing pain while being asked to concentrate. Dr. Waisman opined that depression, disrupted sleep, chronic pain disorder can cause an impact on performing tasks, setting pace and timeliness, as well as demonstrating attention and concentration. The medications that [The Applicant] takes to assist with his pain do not assist him with maintaining attention, concentration and pace. His depression and chronic pain disorder also reduce his motivation to maintain persistence.

57The Tribunal accepts Dr. Waisman’s opinion as reasonable and grounded in the facts and psychological diagnoses before it. It is reasonable to conclude that [The Applicant’s] psychological conditions, especially those pertaining to depression, sleep issues, and chronic pain disorder, have an impact on his ability to concentrate, be persistent, and set and maintain pace.

58Conversely, the Tribunal is unable to find support for Dr. Zielinsky’s opinion that [The Applicant] sustained a mild impairment in this sphere. Dr. Zielinsky testified that he observed [The Applicant] being able to complete testing without needing a break. The evidence before the Tribunal is not consistent with Dr. Zielinksy’s observation. The interplay between [The Applicant’s] psychological diagnoses from the accident and his ability to concentrate, maintain persistence and pace, as opined by Dr. Waisman, is much more probable on the evidence. There is an impact on some, but not all useful functioning in these areas, consistent with a moderate impairment.

ADAPTATION

59The Tribunal finds that [The Applicant] has a moderate impairment in the sphere of adaptation.

60The 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 having difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.” By definition, impairment in adaptation affects the ability to function across all activity areas. Regarding activities of daily living, their quality is judged by their independence, appropriateness, effectiveness and sustainability.²³

61[The Applicant] sustained as a result of the accident a traumatic brain injury, sleep-related disorders, a chronic pain disorder, and depression. According to Dr. Waisman, these conditions caused [The Applicant] to engage in avoidant behaviours and diminished his ability to cope with stressors.

2[The Applicant] has been unable to retrain and find a different type of job. He has been limited in the type and frequency of his social and recreational activities due to his fear of being re-injured. He has not been able to maintain a romantic relationship. He has not been able to travel as he used to or attend appointments without the help of his father and grandmother. He had great difficulty waking up in the mornings and making productive use of his days. In the year following the accident, he also experienced a lack of motivation in getting dressed and in engaging in activities around the house in housekeeping and home maintenance. By the time of the hearing, he was on strong medication to address his chronic pain disorder and sleep disorder.

62These specific examples support Dr. Waisman’s opinion that pain and depression have negatively impacted [The Applicant’s] ability to adapt to stress.

63On cross-examination, Dr. Waisman was presented with the fact that [The Applicant] engaged in binge-drinking, was a smoker, and that he had a concussion after the accident. In the Tribunal’s assessment, Dr. Waisman performed well in his responses during his cross-examination. Dr. Waisman testified that while these other issues caused him concern, he would not change his opinion. He was still able to establish, on the basis of the evidence, a causal relationship from the accident to the impairments experienced by [The Applicant] in adaptation.

64The Tribunal accepts that [The Applicant] is limited in his ability to cope with stressors as a result of his impairments from the accident. However, the Tribunal finds that [The Applicant’s] level of impairment in adaptation is moderate, as opposed to mild (as suggested by Dr. Zielinsky) or marked (as suggested by Dr. Waisman). The Tribunal reached this finding because while chronic pain and depression interfere with [The Applicant’s] ability to engage with various stressors, he is still able to engage in some lighter and different activities (within what Dr. Waisman calls a shielded environment) with the assistance of a few close family members and friends. In the Tribunal’s view, this amounts to the conclusion that some, but not all useful functioning in adaptation is impacted, as opposed to the impairments causing a significant impediment in useful functioning.

65Accordingly, the Tribunal has determined that [The Applicant] has a moderate impairment in all four spheres of the Guides. Under Criterion 8, this means that [The Applicant] does not meet the definition of catastrophically impaired as he does not suffer from a marked impairment.

66As part of the Criterion 7 analysis, however, the impairment for mental and behavioural disorder can be converted to a WPI based on a Table in the Guides.²⁴

67The Table in question provides a range of 15-29% for a moderate impairment.²⁵

68Based on the Tribunal’s findings that [The Applicant] has a moderate impairment in all four of the spheres as a result of a mental and behavioural disorder, the impact on [The Applicant’s] overall functioning is quite substantial.

69[The Applicant’s] depression and chronic pain disorder, and sleep disorder affect several areas of his life. These conditions cause some limitations in his activities of daily living, social functioning, concentration, persistence, and pace, as well as adaptation. It is also reasonable to infer that, at any given time, [The Applicant] is struggling with one or more of these moderate limitations simultaneously.

70The Guides ask us to consider the whole picture of the evidence in a qualitative manner. The picture depicted by the evidence is one of an all-encompassing limitation that affects [The Applicant’s] ability to engage in important life endeavours, such as acquiring alternate remunerative employment, establishing and maintaining a romantic relationship, independently engaging in social and recreational activities of preference, and handling stressful situations with resilience.

71Accordingly, the Tribunal finds it appropriate to use the highest number from the range for moderate impairment when assigning a WPI percentage to [The Applicant] for mental and behavioural disorder.

72On this basis, the Tribunal finds that [The Applicant] has a WPI of 29% for mental and behavioural disorder.

Cervical Spine Injury and Right-Knee Meniscal Tear: 26%

73Both parties’ orthopedic experts agree that [The Applicant] has a 25% WPI due to his cervical spine injury. Given the parties’ agreement on this point, the Tribunal will not address the basis for this WPI in further detail.

74Dr. Paitich also assigned [The Applicant] a 1% WPI for his right-knee meniscal tear. The existence of his meniscal tear and resulting surgery were documented in the evidence. Dr. Getahun did not assign this percentage; however, when questioned at the hearing, he indicated that he did not disagree that there was a right-knee meniscal tear that should be attributed a 1% WPI. As such, the Tribunal accepts Dr. Paitich’s assignment of 1% WPI for [The Applicant’s] right-knee meniscal tear.

75If 25% and 1% are combined using the Combined Values Chart, the result is 26%.

Occipital Neuralgia: 10% (combined left and right side)

76Evidence from the family doctor notes, the treating occupational therapist’s records and testimony, and the treating personal support worker’s testimony corroborate [The Applicant’s] testimony that he suffered from ongoing headaches after the accident. As mentioned earlier, it is also undisputed that [The Applicant] suffered a hematoma in the accident and a traumatic brain injury.

77[The Applicant’s] neurological expert, Dr. Basile, also opined that [The Applicant’s] symptoms were consistent with various types of headaches: migraine headaches, tension headaches, and occipital neuralgia in both the right and the left sides. Dr. Basile was the only neurological expert to testify; Gore Mutual did not call a neurologist.

78Dr. Basile acknowledged during cross-examination that there is no objective test for headaches, nor are headaches given WPI ratings under the Guides. When answering how he tested for occipital neuralgia, he indicated that he used a physical examination to detect whether there was pain in the greater occipital nerve radiating from the side of the neck to the back of the head. He indicated that [The Applicant] demonstrated this pain on both the right and the left sides. Dr. Basile also acknowledged on cross-examination the statement in the Guides that, when there is bilateral involvement, the impairment estimates for the nerves on the two sides should be combined.²⁶

79Under Table 23 in the Guides,²⁷ the greater occipital nerve is assigned a 5% WPI due to sensory deficit, pain, or discomfort. Dr. Basile found upon physical examination that [The Applicant] experienced pain in both greater occipital nerves. There was no other neurological expert before the Tribunal to dispute this opinion. In addition, the Tribunal finds [The Applicant’s] symptoms and the findings of Dr. Basile to be consistent with the neck fracture and traumatic brain injury sustained in the accident.

80Combining the WPI values as required under the Guides, the result for the pain in both the right and left side greater occipital nerves is 10%.

Medications: 3%

81Since the accident, [The Applicant] started taking three medications for pain, depression, and sleep disorder: naproxen, gabapentin, and citalopram. Gore Mutual does not dispute that he takes these medications.

82What Gore Mutual disputes is whether a WPI should be assigned for the fact that [The Applicant] takes these medications. According to Dr. Paitich, there is no need for a WPI assignment for medications unless the medications have the effect of masking an impairment or a side effect of an impairment.

83While there may be some level of masking going on due to the medication, the evidence before the Tribunal shows that [The Applicant] continues to experience limitations due to chronic pain, sleep disorder, and depression. His intake of the medications may mask, but does not eliminate, the pervasive impact of these conditions on his spheres of functioning.

84In these circumstances, the Tribunal finds it appropriate to assign 3%, the highest limit of the range that may be given for medications.²⁸ In the Tribunal’s view, this assignment does not amount to double-counting. The medications are numerous, and they are strong. In addition, based on the evidence, they do not ultimately have the effect of canceling out the effects of the sleep issues, depression, and chronic pain experienced by [The Applicant].

Sleep Disorder: 2%

85One of the medications taken by [The Applicant] is to help with insomnia. Dr. Zielinsky, on examination-in-chief, also confirmed that he accepted that [The Applicant’s] sleep could be disrupted because of his pain.

86Given this evidence, the Tribunal finds that a separate WPI for a sleep disorder is warranted in [The Applicant’s] case. Indeed, sleep disorders are addressed separately from mental and behavioural considerations in the Guides.

87According to Table 6 on p. 143 of the Guides, the lowest category of WPI for a sleep disorder is for “reduced daytime alertness with sleep pattern such that patient can carry out most daily activities,” and has a range of 1-9%. In the next category in this Table, the person requires some supervision to carry out their daytime activities. [The Applicant’s] sleep disorder impacts his daytime functioning. He does not, however, need supervision. Therefore, he falls in the first category in Table 6. Dr. Basile chose to assign 2% for [The Applicant’s] sleep disorder and he believed this number to be conservative and reasonable.

88The Tribunal accepts Dr. Basile’s opinion in this regard. Dr. Basile was the only expert who gave the Tribunal evidence in the area of neurology. Moreover, Dr. Basile’s opinion is consistent with the other diagnoses of [The Applicant] in the evidence and with the medication he takes. The conservative WPI of 2% is appropriate.

89The Tribunal therefore finds that [The Applicant] has a 2% WPI for sleep disorder.

90Combining these WPIs under the Guides leads to a 55% WPI for [The Applicant] under Criterion 7. [The Applicant] is therefore catastrophically impaired under Criterion 7.

“Rejected WPIs”

91The Tribunal also considered other WPI percentages put forward for [The Applicant]. The evidence before the Tribunal, however, did not support these percentages on a balance of probabilities. The following chart explains the Tribunal’s conclusions regarding the other proposed WPIs.

Other Proposed WPI for [The Applicant]

Reasons for the Tribunal’s Rejection of the Proposed WPI

Per Dr. Getahun ([The Applicant’s] orthopedic expert), [The Applicant] should be assigned a 5% WPI for specific injury to the lumbosacral spine

Gore Mutual’s orthopedic expert, Dr. Paitich, pointed out that the Guides require evidence of bilateral guarding to assign this WPI. The Tribunal found that there was no evidence of bilateral guarding before it, and accepts Dr. Paitich’s opinion in this regard.

Dr. Getahun assigned [The Applicant] a 2% WPI for right knee crepitus

As per Dr. Paitich, if the crepitus exists in both knees, then a WPI assignment is not appropriate. Dr. Paitich opined that crepitus in both knees is present in normal people who have not undergone an accident, and is therefore of limited or no relevance. Dr. Getahun was cross-examined on this point, he did not dispute this opinion. Therefore, the Tribunal accepts Dr. Paitich’s opinion and finds that 2% for crepitus is not appropriate for [The Applicant].

Dr. Getahun assigned 7% for right knee moderate collateral ligament instability

Dr. Paitich disputed this assignment. On the evidence before the Tribunal, the collateral ligament laxity was not otherwise supported. In addition, the right knee meniscal tear of 1% already took into account the documented injury and surgery of [The Applicant]. Therefore, this proposed WPI was rejected.

Dr. Basile assigned 2% for migraine headaches (also accepted by Dr. Getahun in the executive summary)

The Tribunal did not have a responding neurological opinion to rebut this WPI. Nonetheless, the Tribunal considered the evidence before it of [The Applicant’s] experiences of headaches from the accident, and also accepted the WPI proposed for [The Applicant’s] occipital neuralgia detected on physical examination on both the right and left side greater occipital nerves and arrived at using the Table in the Guides. On that basis, accepting the proposed WPI could result in a double-counting.

Dr. Basile assigned 1% for tension headaches (also accepted by Dr. Getahun in the executive summary)

The Tribunal did not have a responding neurological opinion to rebut this WPI. Nonetheless, the Tribunal considered the evidence before it of [The Applicant’s] experiences of headaches from the accident, and also accepted the WPI proposed for [The Applicant’s] occipital neuralgia detected on physical examination on both the right and left side greater occipital nerves and arrived at using the Table in the Guides. On that basis, accepting the proposed WPI could result in a double-counting.

Dr. Basile assigned 3% WPI for urinary dysfunction (also accepted by Dr. Getahun in the executive summary)

While Dr. Basile explained in his testimony that [The Applicant] likely had this impairment, and explained his rationale, he conceded that there was no objective documentation of this impairment in evidence before the Tribunal. On a balance of probabilities, the Tribunal does not find support for this WPI.

Dr. Basile assigned 11% WPI for Class II sexual and erectile dysfunction (also accepted by Dr. Getahun in the executive summary)

While Dr. Basile explained in his testimony that [The Applicant] likely had this impairment, and explained his rationale, he conceded that there was no objective documentation of this impairment in evidence before the Tribunal. On a balance of probabilities, the Tribunal does not find support for this WPI.

Dr. Basile assigned 15% WPI for emotional or behavioral disturbances

This has already been accounted for in the Tribunal’s determination of a WPI for [The Applicant’s] mental and behavioural disorder, and will therefore not be double-counted.

Dr. Basile assigned 8% for cervical radiculopathy

This was already accounted for in the undisputed 25% for cervical spine injury. This was also Dr. Getahun’s view in the executive summary tendered for [The Applicant].

Dr. Basile assigned 5% for thoracic radiculopathy

In Dr. Getahun’s view this was addressed when he gave 5% for the lumbar spine. However, as stated above, the Tribunal has not accepted this 5% as it did not have evidence of bilateral guarding. The nerve conduction test results that formed part of Dr. Basile’s report may support a finding of radiculopathy, but it has been accounted for in the undisputed 25% for the cervical spine.

92There were also increased WPIs proposed in connection with a marked impairment finding in adaptation under Criterion 8. However, as discussed previously, the Tribunal did not find [The Applicant] to have a marked impairment.

B) [The Applicant] is entitled to Non-Earner Benefits

93To determine whether a person qualifies for a non-earner benefit, s. 12 of the Schedule provides that he or she must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident.

94The Court of Appeal of Ontario has provided some points of consideration for the determination of whether there is a complete inability to carry on a normal life as a result of an accident.²⁹ A claimant must prove that he or she has been continuously prevented from engaging in “substantially all” activities in which they engaged in before the accident.

95The points of consideration include a comparison of all activities before and after the accident. The comparison should involve more than a mere snapshot of [The Applicant’s] life: it should cover a reasonable period. Any impact on activities from the accident must be long-standing and not isolated in order to meet the high threshold of the test.

96Before the accident, [The Applicant] was working a lucrative job in the oil fields in heavy construction. This included operating a Bobcat and hard physical labour. He also engaged in thrill-seeking recreational activities such as rollercoasters, dirt-biking and bungee-jumping. He also lived independently, drove regularly, socialized frequently with his friends, and maintained a romantic relationship for 4.5 years prior to the accident. These were, in a general sense, his day-to-day activities for at least two years before the accident. The impact of the accident on these activities is discussed in the following paragraphs.

Impact of the Accident on [The Applicant’s] Ability to Work

97Following the accident, [The Applicant] has been permanently precluded from working in construction or in any physical job. He cannot operate a Bobcat because of the impact of the metal plates in his neck.

98[The Applicant’s] tendency prior to the accident was to gravitate towards this type of work, as opposed to a desk or office job, as he was not academically inclined and had a prior diagnosis of ADHD. The construction position had allowed [The Applicant] to overcome these challenges and still earn a high income.

99Now that [The Applicant] is no longer able to work in construction post-accident given his physical impairments, there is a significant negative impact on his ability to work at all. He is not easily able to retrain. As found above, the accident has resulted in a moderate impairment on [The Applicant’s] concentration, persistence, and pace and adaptation. His chronic pain condition, sleep disorder and psychological impairments have an ongoing and pervasive impact on his ability to concentrate, retrain, and work in any capacity.

Impact of the Accident on [The Applicant’s] Recreational Activities

100Prior to the accident, [The Applicant] enjoyed thrill-seeking activities such as dirt biking, bungee-jumping, and rollercoasters. Based on what has been reported by both [The Applicant] and Gore Mutual’s occupational therapy assessor, [The Applicant] is no longer able to engage in more extreme and thrill-seeking recreational activities, as there is a risk of impact on his neck. It is significant that [The Applicant] is no longer able to engage in a recreational activity that was meaningful and enjoyable for him pre-accident.

Impact of the Accident on [The Applicant’s] Ability to Drive

101As discussed earlier, numerous psychological diagnoses have indicated that [The Applicant] has a fear of driving and of being a passenger in a car after the accident. Driving was a regular part of [The Applicant’s] life as he lived in a suburban area.

102According to surveillance evidence, [The Applicant] does drive after the accident. The surveillance evidence showed [The Applicant] visiting a friend in the area and going to a local grocery store. When asked about this at the hearing, [The Applicant] testified that he can no longer drive for long periods or distances in excess of a half hour due to his driving anxiety. The Tribunal finds [The Applicant’s] evidence on this point to be genuine and credible. It is consistent with his psychological diagnoses and with the evidence of his treating personal support worker and occupational therapist. Driving for a maximum of half an hour and having to restrict oneself due to driver and passenger anxiety is not qualitatively the same as driving without restrictions or anxiety. It substantially restricts [The Applicant’s] opportunities and experiences.

Impact of the Accident on [The Applicant’s] socializing

103Gore Mutual submitted an investigation report which detailed activities on [The Applicant’s] Facebook account and some surveillance evidence to show that [The Applicant] continued to be social with friends after the accident. When confronted with this evidence, [The Applicant] candidly explained the post-accident posts that he recognized in the Facebook evidence. He testified that his socializing had been reduced significantly due to the accident. Several references were made to various photographs and it was not clear whether the pictures pre- or post-dated the accident. Therefore, the Tribunal assigns them little weight.

104[The Applicant’s] testimony is consistent with his psychological diagnoses and the testimony and reports of his personal support worker and treating occupational therapist. He was unable to move from his room in the years following the accident due to his pain, issues with sleep, and depression.

105On a balance of probabilities, the Tribunal is satisfied that the degree and frequency of [The Applicant’s] socializing has been significantly curtailed due to the accident. While he continues to socialize, it is not to the extent that he used to, and his experiences are not the same and much more limited given his impairments from the accident.

Impact of the Accident on [The Applicant’s] Relationship

106[The Applicant] was in a relationship with a woman for 4.5 years prior to the accident. The changes in his physical condition and mood after the accident eventually resulted in the break-up of that relationship. Post-accident, he has not been able to maintain a relationship.

107There was no significant challenge to this evidence at the hearing. The Tribunal is therefore satisfied that this significant aspect of his life was negatively impacted by the accident.

Impact of the Accident on [The Applicant’s] resilience

108Suffering from a moderate impairment in the sphere of adaptation also means that [The Applicant] is less resilient in the face of change and stressors following the accident. There is corroborative evidence in this regard from [The Applicant’s] treating family doctor, occupational therapist, and personal support worker.

109The inability to deal with stressors or changes in a positive and productive manner is also a significant negative impact on [The Applicant’s] life due to the accident.

110The activities discussed above were meaningful to [The Applicant] and formed a necessary part of his day-to-day life. Based on the evidence, all of these activities were irreversibly impacted due to the accident, and [The Applicant] is no longer able to engage in them, either at all or to the same meaningful degree. [The Applicant’s] inability to engage in these activities translates into a complete inability to live a normal life due to the accident.

111Accordingly, the Tribunal is satisfied that [The Applicant] has met the evidentiary threshold for entitlement to non-earner benefits.

CONCLUSION

112[The Applicant] meets the definition of an individual who is catastrophically impaired under the Schedule (Criterion 7). He is also entitled to non-earner benefits in accordance with the Schedule.

Date: April 6, 2020

__________________

Nidhi Punyarthi

Adjudicator

__________________

Rebecca Hines

Adjudicator

Footnotes

1. 1The language of this question is taken from the parties’ submissions.
2. 2The four domains in the Guides are (1) Activities of Daily Living; (2) Social Functioning; (3) Concentration, Persistence and Pace; (4) and Adaptation.
3. 3Guides, p. 142 (Table 3 : Emotional or Behavioral Impairments).
4. 4Guides, p. 322.
5. 5Guides, p. 293.
6. 6Guides, p. 293.
7. 7Guides, p. 293.
8. 8Exhibit 4.
9. 9Exhibit 5.
10. 10Exhibit 31.
11. 11July 9, 2015 note.
12. 12September 2015, Dec. 2015.
13. 13Exhibit 8.
14. 14Exhibit 31.
15. 15The Tribunal agreed with the respondent’s objection in its closing submissions and did not rely on the Walsh report as it was not made an exhibit at the hearing.
16. 16Exhibit 24, p. 13.
17. 17Exhibit 24, p. 9.
18. 18Exhibit 24, p. 15.
19. 19Exhibit 24, pp. 14-16.
20. 20Guides, p. 301.
21. 21Guides, p. 14/294.
22. 22This was confirmed in the evidence of [The Applicant’s] treating occupational therapist and personal support worker.
23. 23Guides, p. 14/294.
24. 24Guides, p. 142.
25. 25Guides, p. 142.
26. 26Guides, p. 152.
27. 27Guides, p. 152.
28. 28Guides, p. 9.
29. 29Heath, at para. 50.