Citation: T.B vs. Echelon General Insurance Company, 2020 ONLAT 19-001347/AABS

Released Date: 05/27/2020

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:

[T.B]

Applicant

and

Echelon General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Nathan Ferguson

APPEARANCES:

For the Applicant:

[T.B], Applicant

Andrew Franzke, Counsel

For the Respondent:

Jamie R. Pollack, Counsel

Serena Gohal, Counsel

Court Reporter:

Kayla Stevenson

HEARD: In-Person and by Teleconference:

November 13, 15 and 18, 2019 and February 19, and March 4, 2020

OVERVIEW

1The applicant (“TB”) was involved in an automobile accident on December 10, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). TB sought payment of the costs of examinations, and a determination that she is catastrophically impaired as defined by the Schedule. This claim was denied by the respondent and TB submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”) to resolve the dispute.

ISSUES

2The issues in dispute were identified and agreed to as follows:

i. Did TB sustain a catastrophic impairment as defined in the Schedule as a result of the accident?

ii. Is TB entitled to the cost of examination in the amount of $12,400.00, recommended by Omega for catastrophic assessments and denied by the respondent on November 9, 2017?

iii. Is TB entitled to an award under Ontario Regulation 664 under the Insurance Act because the respondent unreasonably withheld or delayed the payment of benefits?

iv. Is TB entitled to interest on any overdue payment of benefits?

3TB withdrew issues ii and iii at the hearing. The costs of all examinations in dispute were paid by the respondent and the applicant no longer sought an award. As a result, there can be no interest owed on any overdue payments and interest cannot be awarded.

4Therefore, I will address only issue i above. More specifically, TB’s application relies on criterion 8 – that there is a marked or extreme impairment related to mental or behavioural disorder.

RESULT

5Based on all of the available evidence I find on the balance of probabilities that TB did not sustain a catastrophic impairment within the meaning of the Schedule.

LAW

6TB, as the applicant, bears the onus of establishing, on the balance of probabilities, she sustained a catastrophic impairment as defined by the Schedule and that this is a result of the accident. There is no dispute as to the definition of “catastrophic impairment”, which is as follows:

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

7In Pastore v. Aviva Canada Inc., 2012 ONCA 642 the Court of Appeal confirmed that a single marked impairment in any one domain is sufficient to qualify as a catastrophic impairment. A person is catastrophically impaired if he or she is found to have one or more class 4 “marked” impairments (or the more significant class 5 impairments) that impact useful functioning in any one of the four functional domains due to mental or behavioural issues. This is what criterion 8 references.

8Chapter 14 of the Guides addresses the disorders. The stated objective of the Guides is to achieve a greater degree of objectivity in estimating the degree of permanent impairments by standardizing the framework and method of analysis.

9In Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 the Court held at paragraphs 24-32 that qualification of an impairment as catastrophic is a statutory analysis rather than a medical test. The Schedule defines impairment as “a loss or abnormality of a psychological, physiological or anatomical structure or function.”

10The severity of impairment is measured in comparison to its impact on a person’s useful daily functioning in: Activities of Daily Living, Social Functioning, Concentration, and Adaption/Decompensation.

11Impairments are also rated using the word descriptors in Chapter 14 of the Guides on a five-category scale that ranges from no impairment to extreme impairment.

12The Guides describe the rating criteria for each class as follows:

Class 1 (No Impairment): No impairment is noted;

Class 2 (Mild Impairment): Impairment levels are compatible with most

useful functioning;

Class 3 (Moderate Impairment): Impairment levels are compatible with some,

but not all, useful functioning;

Class 4 (Marked Impairment): Impairment levels significantly impede useful

functioning;

Class 5 (Extreme Impairment): Impairment levels preclude useful functioning.

13TB relies on Drs. Becker and Braganza’s determinations that she is markedly (class 4) impaired in:

1. Concentration, Persistence and Pace; and

2. Adaptation/Decompensation.

14TB also described numerous physical limitations, but there was no indication from any qualified medical practitioner that these impairments were marked or extreme (class 4 or class 5). Additionally, although pain can certainly impact the ability to concentrate, focus and generally complete tasks, TB did not describe her pain as causing or contributing to her mental or behavioural limitations with the exception of causing her to avoid very heavy tasks and to rest as necessary.

15There is no dispute that TB suffers from a mental and/or behavioural disorder. The respondent, however, argues that the applicant falls short of a catastrophic impairment in this instance. The respondent relies on the opinions of Drs. Zielinsky and West, who also evaluated TB and concluded that her impairments do not reach the threshold of “marked” in any category.

16I reviewed the parties’ hearing briefs including the medical reports and records submitted as well as the testimony provided at the hearing by TB and the medical experts. Additionally, counsel for both sides provided helpful submissions and argument throughout the hearing and in closing submissions. I considered all of this carefully in arriving at this decision.

17I found the evidence and argument of the respondent more persuasive in this instance for several reasons and it follows that I find TB did not meet the onus on her to show her impairments are catastrophic within the meaning of the Schedule.

EVIDENCE AND ANALYSIS

18In Pastore, the Court of Appeal described a three-step approach to be followed when deciding the issue of catastrophic impairment due to mental or behavioural disorders derived from Chapter 14 of the AMA Guides. I will follow the approach outlined at para 6:

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

2. If it did, what is the impact of the mental or behavioural disorder on the applicant’s life? and

3. In view of the impact, what is the level of impairment?

Did the Accident Cause the Applicant to Suffer a Mental or Behavioural Disorder?

19The parties are in agreement that the applicant suffered some form of mental or behavioural disorder before the accident. The medical reports confirm that the applicant had pre-existing depression, oppositional defiant disorder, obsessions, compulsions, a history of attention deficit disorder symptoms and dependence on substances. The applicant confirmed this in her testimony.

20Dr. Braganza (August 8, 2017 Mental/Behavioural Evaluation) concluded that she has Pain Disorder associated with both psychological factors and a general medical condition, severe Major Depressive Disorder and features of Post-Traumatic Stress Disorder with related fear of traveling in a vehicle.

21Although Dr. Zielinsky did not consider her impairments marked in any specific category, his April 30, 2018 report confirms that the applicant reported a “worsening of her concentration and difficulties with information processing” (see p. 8 of 25) and that she had some anxiety driving, though “not excessively anxious”. Dr. Zielinsky concluded “There is no accident related DSM-5 diagnosis” (p. 14 of 25) but that she continued to have a mild level of impairment having “done very well recovering from the accident” (p.19 of 25).

22In my view, the evidence is clear that the applicant was impacted by the accident. The accident itself was described in the reports as well as by the applicant and it was obviously traumatic. The vehicle rolled over, she lost consciousness and does not recall a period of time during and after the accident. Her earliest recollection after losing control of the vehicle and assuming she would not survive, was sitting in a farmhouse where she was apparently offered assistance.

23None of the treating practitioners suggests that TB is asymptomatic or that her existing symptoms were not in any way altered by the accident. Though Dr. Zielinsky concluded the applicant had no accident-related DSM-5 diagnoses, he also described improvement and recovery from the date of the accident, suggesting the impact was greater at an earlier date.

24Even though she had pre-existing conditions, on the basis of all of the evidence provided I find that the accident did cause TB to suffer a mental or behaviour disorder, or disorders.

What is the Impact of the Mental or Behavioural Disorder on the Applicant’s Life?

25TB described her history as generally unstable for a variety of reasons. A history of abusive relationships and opioid dependency impacted her long before the accident. She was incarcerated for a little over six months in 2012-2013, which impacted her ability to seek and maintain employment. However, in 2013 she was able to move in with a terminally ill friend in exchange for attending to necessary tasks.

26She had very little work history before 1994. From 1994 to 2005 she was employed seasonally in her uncle’s restaurant. In 2005 she attained qualification as an esthetician and worked with her sister in another family business in 2010 or 2011 as a nail technician. Unfortunately, the business was lost to fire and by the time of the accident, TB was seeing only approximately 5 clients per week in her home business. She feels incapable of doing this sort of work as a result of her difficulty physically filing.

27Before the accident, TB was also admitted to the hospital for “mental health”. She testified that she was depressed for a very long time and this fluctuated through the years. However, at the time of the accident she felt she was doing “pretty good”.

28As mentioned above, in 2013, TB lived with a friend who required support as a result of her illness. TB was able to prepare dinners, help her friend’s children get ready for school and give sponge baths. This was physically demanding as her friend was heavy and required some manipulation. In addition, she did housekeeping as necessary.

29TB recalls that she felt more positive and fulfilled during this time. She was attending social events, for example playing darts once a week. She also rode a bicycle for two or three blocks daily, went skiing recreationally a few times in the winter and rode a snowmobile.

30After the accident, TB went to physiotherapy. She noted this was the only consistent treatment she ever received. The progress report dated June 2, 2017 indicates that TB was scheduled to attend many sessions, but canceled or did not show up to 9 sessions and attended only 4. She stated that she no longer attends because it is costly, and she relied on other people for her transportation. However, she moved to a larger city in 2019 and finds it “a lot easier to do things” because of her location. She is now able to walk “everywhere” though it can be tiring.

31Some housekeeping, like vacuuming and shoveling, is difficult for TB because of her pain. TB feels that it is difficult to remember dates and appointments. Having done the activity required by the occupational therapists in their assessments, TB felt fatigued and estimated that she slept a half hour after doing the tasks. She felt that she needed some rest after an hour of activity and noted that she avoided carrying heavy objects with her left arm. The limits she described in her activities were primarily physical. When asked specifically what stops her from doing an activity, she described shoulder and arm pain.

32Although TB asserted that she is not able to drive, she acknowledged on cross examination that her license was suspended for unpaid fines and this is the reason she is unable to operate a vehicle. She agreed that the reason she does not own a vehicle is the suspension of her license.

33TB lives alone and is able to attend to her own care and housekeeping with the exception of heavy tasks. She avoids these tasks due to physical pain in her shoulder. Until her dog passed away approximately one year before the hearing, TB took the dog out two time or more per day.

34TB has not attended any psychological treatment since the accident. Although Dr. Braganza opined that TB’s function without medication could be assumed to be worse than it was at the time she was observed, TB confirmed that she was not using any medication at that time, and did not use medication until sometime in 2019. When she was evaluated, she had no active treatment for her mental or behavioural disorders. Since initiating the use of medication, she feels that her symptoms have improved.

35The applicant’s counsel argued that the applicant was unable to travel in a car and noted that there are several references in the reports to her anxiety when driving. The respondent however, directed me to TB’s testimony that she was able to travel as a passenger in a car for several hours to her assessments in another city. She also noted that when she needs to get somewhere, she either walks or gets a ride. That is, she is not precluded from this activity, and her anxiety is not sufficient to prevent travel by vehicle.

36As to her social activity, after the accident, the applicant feels that she is less able to engage and interact socially. However, she also testified that she initiated a romantic relationship after the accident which remained intact for approximately two years, after which she began a new relationship which remained successful at the date of this hearing. In addition, she felt her relationship with her children was “okay” before and after the accident and agreed there was “no change” after.

37She continues to visit with her grandchildren regularly. She was socializing with her former spouse daily in December 2017 (when she was evaluated by occupational therapist, J. Ford). She saw her friends a few times per week, which only ceased when she moved from her community and not related to her impairments.

38Both Dr. Braganza and Dr. Zielinsky describe TB’s pre and post-accident function as essentially independent and inclusive of social activity and physical activities. On the whole, and in light of TB’s testimony regarding her function before and after the accident, I find that the impact of the mental or behavioural disorder on her life was limited.

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

39Dr. Braganza, Dr. Zielinsky and Dr. West testified at this hearing as to their methodology, observations of TB and opinions. The applicant also submitted the report of Dr. Becker which was similar (in its support of the applicant’s position) to that of Dr. Braganza. The parties each argued in their closing submissions that a determination of the applicant’s impairment as catastrophic will be based largely on which opinions are considered most persuasive and provided bases to find one expert more reliable than another. I agree that this is an important aspect of the present application as the conclusions of the experts are simply irreconcilable. I found the opinions of Dr. Zielinsky and Dr. West most persuasive in this instance.

40The Guides define impairment in Adaptation as the repeated failure to adapt to stressful circumstances, in the face of which “the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate or have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.” The focus of the analysis in this domain is on the psychological stress tolerance of the individual. Also, impairment in adaptation affects the ability to function across all activity domains, not only in work-like settings.

41Dr. Braganza evaluated TB and completed the Mental/Behavioural Evaluation dated August 8, 2017. This evaluation concludes that TB is markedly impaired in concentration and moderately to markedly impaired in adaptation. TB’s pain was self-reported as improved and rating at a level “between 3-4/10 on a scale of pain severity… 10 being severe pain” (except for more significant occasional headaches that TB did not refer to in her testimony as causing any specific limitation). The pain was managed with the use of Advil as needed (p.4).

42In my view there are significant inconsistencies in Dr. Braganza’s evaluation. I do not consider Dr. Braganza to be disingenuous or misleading, however, the information provided in that report deviates from TB’s testimony and this undermines its persuasive force in my view. For example, in describing TB’s treatment, Dr. Braganza indicates that she is currently attending physiotherapy and “reported that treatment has been helpful” and that she attended pre-accident “psychiatry and this is ongoing”. Additionally, Dr. Braganza noted that the applicant was “also taking psychotropic medication prior to the indexed accident, which increased in dosage post-accident” and, in combination with other factors, determined that this was reflective of an overall worsening situation (p.9). This was also described at p.5 of the Cognitive Screen dated July 24, 2017: “Current medications include: Wellbutrin (300mg). Pre-accident medications include: Wellbutrin (150mg) …”

43However, TB confirmed in her testimony that she did not attend psychiatry, except in the distant past and when hospitalized, and that this was not ongoing. Additionally, TB testified that she had not attended physiotherapy at any point in 2017, nor requested any additional physiotherapy since that time. As to the use of psychotropic medication, this was not used regularly pre-accident and did not increase post-accident. At the time that Dr. Braganza evaluated her, TB did not use this medication. These treatments were not current, and were not sustained, and this appears to be a significant error. Dr. Braganza appears to have taken this information either from her discussions with TB or from the report of B. Ahuja, Occupational Therapist (August 2, 2017).

44Additionally, Dr. Braganza concluded that the applicant was limited in her social function having “stopped engaging in many social and recreational activities”. While she no longer attended darts matches in a local league or interacted with friends, TB’s evidence was that she moved from a smaller community to a larger city and the reason she no longer interacted as often was primarily her decision to move. As noted above, she maintained a relatively high degree of social function, but for those activities that ceased because of moving to a new community. While TB expressed limits due to pain, this did not negatively impact her romantic or family relationships according to her testimony and Dr. Braganza noted that “…her boyfriend, children and ex-husband are a good source of social support and she continues to get along with them. She also reported that she gets along with others, such as store clerks…” There is very little negative social impact described by the applicant.

45Dr. Braganza also noted (p.9 Cognitive Screen dated July 24, 2017) that “at the time of the subject accident [TB] was receiving ODSP for depression…” TB testified that she did not receive ODSP until 2015 and this was an error.

46Dr. Becker confirmed Dr. Braganza’s opinion in the November 9, 2017 Catastrophic Impairment Evaluation, concluding: “[TB] meets the catastrophic threshold for mental and behavioural impairments under Criterion 8 with Marked (Class 4) impairment in Concentration, Persistence and Pace”. This report provided much less insight than Dr. Braganza’s, reiterating and relying on the evaluations of Dr. Braganza and B. Ahuja. Dr. Becker’s opinion did not provide additional elaboration or correct any error in the other reporting. I did not find the evaluation provided any additional insight or clarification that would overcome or cause me to look differently at any existing shortcomings in Dr. Braganza or B. Ahuja’s evidence.

47The respondent also argued that I ought to give little weight to B. Ahuja’s reporting as it is wrongly labeled an “In-Home Occupational therapy Functional Assessment” when in fact it took place at a facility other than the applicant’s home. I did not consider this to automatically undermine the credibility of the occupational therapist or to invalidate the results provided. However, I do agree with the respondent that, taken with the apparent errors regarding the applicant’s current and past treatment, this tends to suggest a lack of care or attention in preparing the document which detracts from its persuasiveness overall.

48The experts engaged in assessing the applicant described their testing and protocols in the course of this hearing and each explained why their methodology was preferable in their own opinions. I note that Dr. Braganza has added additional testing since the time that she evaluated TB and this may be reflective of a need to fill our additional areas of information or concern, however, the nature and extent of the testing was not determinative in my view. Each expert evaluated TB over a significant period of time and with the added insight of an occupational therapist.

49In my view, the area that lends additional credence to the measures followed by Dr. Zielinsky and Dr. West is that they have addressed validity testing concerns. Dr. Braganza and Dr. Becker offered no consideration or analysis of such concerns despite the presence of data that is difficult to reconcile.

50For example, at p.6 of Dr. Braganza’s Mental/Behavioural Evaluation, the Personality Assessment Inventory is summarized. TB’s “responses indicated that she did respond inconsistently to test items of similar context… there was evidence of symptom exaggeration”. Without addressing the reasons, Dr. Braganza states: “the profile was considered valid”. This is despite having reviewed Dr. Salerno’s Psychological Assessment dated January 6, 2016 in which Dr. Salerno stated: “Overall, given the objective validity findings, the data obtained from the psychometric testing must be interpreted with caution”.

51The July 24, 2017 Cognitive Screen completed by Dr. Braganza states: “[TB] performed below expectation on a measure of performance validity, which is likely related to her emotional distress…” As a result, with regard to her Cognitive Rating, Dr. Braganza stated: “[TB] appears to have sustained a traumatic brain injury as a result of the December 10, 2013 accident; however, as noted above, [TB’s] cognitive symptomatology are likely impacted by [other] factors… While there could be neurocognitive impairment, it is difficult to confirm this with confidence, due to validity issues. Thus, a rating cannot be provided… a comprehensive neuropsychological assessment would help to elucidate the etiology of her cognitive symptoms”.

52Though there were numerous references to validity concerns, a discussion of the validity of results was simply absent in this reporting. I find this difficult to reconcile especially in light of the significant reliance on subjective reporting which is necessary when evaluating an individual’s perception of limitation. Dr. Braganza acknowledged in her testimony that she noted some validity concerns in her testing, however, she felt that TB provided genuine effort throughout and her exaggeration, if it may be called that, was intended merely to convey that what she was experiencing was “tough”.

53On the other hand, Dr. West directly addressed validity concerns in the Neuro-Psychological Assessment dated July 25, 2018 (pp. 15-17 of 27). TB’s test results indicated that validity ought to be a concern, as was also observed by Dr. Braganza in separate testing. Therefore, additional validity testing was performed.

54TB ‘s Pain Patient Profile was invalidated by “extreme symptom exaggeration”. In the Specific Measure for the Identification/Detection of Malingering “her responses resulted in a score that exceeded the maximum acceptable cut-off score for suspected malingering by a significant margin”. Finally in the MMPI-2-RF measure, Dr. West explained: “during the current assessment [TB] evidenced significant elevations on several of the validity scales… her responses cannot be reliably interpreted so as to be considered to be an accurate reflection or depiction of her ‘true’ or actual levels of psychological functioning and/or psychopathology… she rendered the test results uninterpretable…”

55Dr. West elaborated in his testimony that this does not necessarily suggest the applicant is dishonest as there are other explanations for concerns in validity – however, the result is that the testing cannot be considered accurate when validity is a concern. Dr. West questioned the certainty of Dr. Braganza’s conclusions in light of the validity concerns noted when additional validity testing was not performed, and her reporting did not outline why the results of her testing were considered reliable in the face of validity concerns.

56Both Dr. Zielinsky and Dr. West relied on the details of the evaluation provided by J. Ford, the occupational therapist that evaluated the applicant in a real-world (In-Home) setting. Both also relied upon their own testing and interactions with TB. I find that their observations of TB on the whole align with the observations provided by Dr. Braganza, for example that the applicant has a generally strong social support network including her extended family, is able to care for her dog, is able to attend events like a night at the casino if desired, is independent in virtually all activity, and avoids only very heavy activity on a daily basis. The difference is the severity of limitation described by these sources, and again the changes to the applicant’s social function which can be attributed to moving.

57I find Dr. Zielinsky and Dr. West’s conclusions more in keeping with TB’s description of her function and abilities. Specifically, that she is independent in virtually all activity. I find that Dr. West also addressed validity concerns in a much more comprehensive manner. I further find that there are fewer (and/or less significant) inconsistencies in the reporting provided by Dr. Zielinsky, Dr. West and J. Ford. Therefore, I found their evidence more persuasive on the balance of probabilities.

58Dr. West concluded that the applicant was mildly (Class 2) impaired in adaptation generally but this could fluctuate to a Class 3 “…perhaps at times when her pain symptoms worsen that temporarily and occasionally…”. Dr. West summarized the details of TB’s assessment as follows: “I would respectfully suggest that I do not believe this pleasant woman meets catastrophic criterion as a result of the motor vehicle accident, as I do not believe that she is evidencing symptoms of mental illness of sufficient frequency, intensity/severity, or duration, such that she would reasonably be deemed to evidence a class 4 or marked level of impairment within any of the four above relevant domains” (p.21 of 27 July 25, 2018 Neuropsychological Assessment).

59This is consistent with Dr. Zielinsky’s conclusion that TB is mildly impaired (Class 2) in all four areas of functional limitation (April 30, 2018 Psychiatric Assessment). Dr. Zielinsky testified that he relied heavily on the applicant’s own description of her activities in addition to his direct observations and the details of the testing performed along with the In-Home Assessment that J. Ford completed. Specifically, Dr. Zielinsky stressed that her symptoms were minimal in virtually all testing and that she achieved very unlikely perfect scores on cognitive testing that ought to be impossible if she suffered significant impairment in concentration, persistence and pace or adaptation. Dr. Zielinsky summarized the results as follows (pp. 16-17 of 25):

…she has resumed most housekeeping chore responsibilities which she is able to complete independently, she reports adequate socializing with her children and grandchildren, she lives with a boyfriend with whom she maintains and active intimate life and reports no significant issues with irritability or social interaction… On direct examination [TB] appeared to be in no distress. She had no emotional distress display or changes in her demeanour… She appeared tearful only when talking about her past history of disadvantage and unspeakable abuse… [TB] appears resilient and reported no symptoms of excessive emotional distress to support any psychiatric diagnosis as a result of the accident… [TB] does not report any of the symptoms characteristic of post traumatic stress disorder in direct relationship to the accident… She does have symptoms of PTSD in relationship to the pre-existing trauma which have not been exacerbated by the accident… [TB] does not report any current exacerbation of her depressive symptoms and she denies having persistent depressed mood or loss of interest in pleasurable activity… She does not perceive herself to be fixated on pain, she perceives the pain to be within her control. She does not report herself to be disabled due to pain… she did not appear to me to show any obvious difficulties with cognitive efficiency… she did not appear too tired or to perform poorly during the assessment. Specifically there was no need for breaks noted during the assessment… [TB] does not meet criteria for using Criterion 8 as a result of the accident since she does not have a marked impairment in any domains of function.

60Based on the above, and having found the opinions provided by Dr. Zielinsky and Dr. West persuasive and consistent with TB’s general account of her abilities and activity level, I find that the applicant did not meet the onus necessary to demonstrate that she suffered a class 4 “Marked” impairment in any of the four areas set out in the Guides and is not, as a result, catastrophically impaired within the meaning of the Schedule.

CONCLUSION

61For all of the foregoing reasons and on the balance of probabilities I find that the severity of the applicant’s level of impairment with respect to the Concentration, Persistence and Pace, and Adaptation domains described in the Guides does not constitute a catastrophic impairment within the meaning of the Schedule.