18-007496/AABS

Released Date: 07/08/2020

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:

[C.K]

Applicant

and

TD General Insurance Company

Respondent

DECISION AND ORDER

VICE-CHAIR:

D. Gregory Flude

APPEARANCES:

For the Applicant:

[C.K], Applicant

Robert Gabor, Counsel

Tanya Fleming, Paralegal

For the Respondent:

Eric Levin and Jeffrey Wong, Counsel

HEARD: In-Person:

January 27 – 31 and February 2, 2020

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, [C.K], left her home bright and early on January 4, 2015 to go her local coffee shop. As she was walking there, she was hit by a car. She has no memory of being hit. The next thing she remembers is waking up in hospital with serious injuries, including a skull fracture, a fracture of the bony part of her right ear, a traumatic brain injury, and assorted soft tissue injuries. She is a changed person since the accident. The focus of this hearing is to determine the extent of that change and how she has been able to adapt to life since the accident.

2The respondent, TD General Insurance Company (“TD”), agrees that the accident has left [C.K] with long-term psychological impairments. It disagrees with [C.K] about the severity of the long-term impairments. [C.K] submits that the psychological and emotional damage she has suffered as a result of the accident falls within the definition of “catastrophic impairment” in s. 3(2)(f) of the Statutory Accident Benefits Schedule - Effective September 1, 2010 O. Reg 34/10 (the “Schedule”). TD submits that it does not. I find that it does.

ISSUES

3The issues in dispute were identified and agreed to in the October 17, 2019 case conference order as follows:

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

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

c. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

4The applicant suffered a catastrophic impairment under s. 3(2)(f) of the Schedule because she has a marked impairment in the domain of adaptation.

Applicable Definition of Catastrophic Impairment

5The definition of a catastrophic impairment applicable to a 2015 accident is set out in s. 3(2) of the Schedule. It includes clearly defined impairments such a loss of sight in both eyes, loss of a limb, paraplegia or tetraplegia, or severe cognitive impairment. For the purposes of this analysis, however, s.3(2)(f) defines as catastrophically impaired a person who has suffered 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 a mental or behavioural disorder.

6The word “impairment” is defined in the Schedule to mean “a loss or abnormality of a psychological, physiological or anatomical structure or function.”

7The Guides list 4 areas of mental or behavioural disorder to be considered, referred to as 4 domains. They are: activities of daily living, social functioning, concentration, and adaptation. The rating system rates the severity of these domains as: no impairment, mild impairment, moderate impairment, marked impairment, and extreme impairment. In the current matter, TD’s psychiatric assessor, Dr. Tina Chadda rated [C.K] as mild and [C.K]’s assessor, Dr. Rosenblatt rated her as marked in the domain of adaptation.

8The Guides refer to adaptation as the 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

9The terms “mild” and “marked” are defined in the Guides. A mild impairment is one which is compatible with most useful functioning. In a marked impairment, impairment levels significantly impede useful functioning. [C.K] bears the onus of establishing, on a balance of probabilities, that she has a marked impairment in the domain of adaptation as a result of the accident.

ANALYSIS

10In finding that [C.K] suffers from a marked impairment in the domain of adaptability, I note that [C.K]’s treating occupational therapists and a social worker, together with her assessing occupational therapists all record that she is largely housebound since the accident because of tiredness and lack of motivation. This evidence establishes that she has not improved despite the lapse of many years since the accident. It stands in stark contrast to the active person who was [C.K] before the accident.

Pre-accident Life

11[C.K]’s pre-accident life is, in many ways, remarkable given that she was able to rise above adversity and raise two boys, one of whom is a university professor and the other of whom, due to a violent physical assault, now wrestles with his own demons.

12[C.K] was born in Greece in 1942. She attended school until Grade 7 before starting work at various jobs. She emigrated to Canada, married, and started a family. They had two sons, [G] and [A] before her husband passed away in 1972 or 73 while the boys were approximately 7 and 4 years old respectively.

13Between 1963 and 1990 [C.K] worked on Spadina Avenue operating a sewing machine. She developed elbow pain and claimed Workplace Safety compensation (“WSIB”). She remained on WSIB until she began collecting a pension.

14[C.K] began to have periodic anxiety attacks after she stopped working. The attacks continue from time to time up to the present. The attacks would come and go but they are controllable with the use of Bromazepam. She has continued to take Bromazepam since the accident in the same dosage as before.

15She had a limited social life. She reported that she had two close friends, both of whom had died before the accident. She did not socialize with her neighbours. She was always pleasant and polite if she met them but did not encourage further intimacy. She was also emotionally close to her sister, although they lived apart. Her sister lived in Greece.

16[C.K] most enjoyable activity was walking. She stated she “loved it.” She walked 5 km every day and had done so for 20 years. In fact, she moved in to an apartment close to a park 18 years ago so she could walk. She also cooked Greek food, did the laundry, cleaned and vacuumed her 600 square foot apartment. She did this without help. She described herself as a good housekeeper.

17Despite her lack of formal education, [C.K] made good use of the local library. She was an avid reader, reading biography, novels, books on geography among other things. She would read a book in a couple of days. She read so much it caused her eye problems. She also went to the movies often and watched Greek television from 10:00 p.m. to midnight.

18She was a source of support for her son, [A], who lives in Toronto. As stated above, her son was the victim of a violent attack that has left him with mental health issues. Prior to the accident, [C.K] would shop for him, cook meals for him, socialize with him and help clean his apartment.

19When her older son, [G], moved to the United States she would speak to him on the phone often. [C.K] would visit. She went on July 4 each year. She has been unable to do so since the accident.

20Overall, taking into account [C.K]’s evidence and that of her two sons, I am left with the impression of a woman who was strong and proud. The focus of her life just before the accident was her family. She travelled to the United States to see her son and grandchildren not infrequently, she cared for her son in Toronto, and she lived independently cooking and cleaning for herself. The accident brought about major changes.

The Accident and Its Aftermath

21The accident caused serious injuries. She had a traumatic brain injury, a fractured skull and a broken ear bone among other injuries. She was bleeding from her ear. When she came to, she felt dizzy and her son helped her to the washroom. She decided she want to leave the hospital. Against the advice of the hospital staff and the fact that if she were not in hospital she may die as a result of her brain injury, she left anyway. She took a cab and the cab driver helped her into her apartment. There she collapsed, felt dizzy and vomited blood.

22She went to [the Hospital] the next day where an MRI showed a brain haematoma. She had severe neck, back and head pain, she felt dizzy and confused, angry and had no memory. Her son, [A], took over running the apartment. He thought he was going to lose her.

23Immediately following the accident, [C.K]received assistance from an occupational therapist, Jenna Copeland. Ms. Copeland’s notes detail [C.K]’s condition over the next several months until she left in 2016. She expanded on those notes in her evidence.

24Ms. Copeland first saw [C.K] on January 14, 2015 to prepare an attendant care needs assessment (Form 1). She then saw her regularly for approximately one year. She prepared several more Forms 1, in each case adjusting the required attendant care to reflect improvement in [C.K]’s condition. For instance, the January 14, 2015 assessment called for $8,000 per month of attendant care. TD paid the maximum for persons not diagnosed as CAT, $3,000 per month. As the months passed, the amount was reduced as the need for extensive in-home supervision declined. It was $1,053.31 in the second assessment and increased slightly to $1,357.76 in the last assessment.

25There are recurring themes in Ms. Copeland’s notes. While the major dizziness issues shortly after the accident lessened, [C.K] continued to report dizziness. She would not go out into the community as it made her anxious. Ms. Copeland tried to work on the stress and anxiety issues without marked success. [C.K] had issues with short-term memory and difficulty engaging in the sessions. The sessions were broken up or paced. [C.K] continued to suffer severe headaches. She was emotional, got angry and irritable and was liable to rapid mood changes. She felt that activity made her symptoms worse and took naps to decrease them. She decreased her social activity. Her only outing into the community was her visit to [the Hospital].

26After approximately a year, Ms. Copeland transferred [C.K] to the care of Heidi Reznick, another OT. It seems that [C.K] became very upset with Ms. Copeland and wanted another treatment provider. In her evidence, [C.K] referred to Ms. Copeland with some fondness and it seems she regrets the fact that Ms. Copeland ceased being her treatment provider.

27Ms. Reznick met with Ms. Copeland on February 1, 2016. Over the next month or so she tried to work with [C.K] to encourage [C.K] to take walks again. She attempted to break the larger goals into smaller achievable segments. Initially Ms. Reznick encouraged [C.K] to walk in the community for 10 minutes. On March 8, 2016 [C.K] did walk for 10 minutes but complained of aggravated symptoms and did not follow through with the 10-minute walking program thereafter.

28Ms. Reznick assessed [C.K] on April 16, 2016. She noted that, over one-year post-accident, [C.K] still suffered from headache, dizziness, poor balance, low mood, cognitive issues and sensitivity to noise and light. [C.K] could do simple tasks like use a calendar but made errors and required prompting. She was emotional, irritable and feeling depressed. Sessions were often tearful. Ms. Reznick ended her association with [C.K] after 4 more sessions. She took maternity leave but before doing so, she introduced [C.K] to a social worker, Leslie Linzon.

29The symptoms Ms. Linzon found are broadly similar to those noted by Ms. Copeland and Ms. Reznick with the addition of feelings of hopelessness and trouble with finding words. Ms. Linzon noted that [C.K] was extremely tired all of the time but was better in the morning. Ms. Linzon scheduled appointments for the morning.

30Ms. Linzon performed a second assessment after 8 visits. She noted [C.K] had low tolerance to pain and physical issues. Stimuli exacerbated head pain. She noted that [C.K] had even cancelled a visit from her granddaughter. [C.K] tried to do things, but this depleted her energy and increased pain. Throughout [C.K]’s son, [A], was very helpful, he would prompt her and escort he when she went on outings.

31Around the time of the second assessment, [C.K] insurance funding for a person without a catastrophic impairment ran out. Despite this Ms. Linzon continued to see [C.K] through 2017 until her last visit in August 2018. Ms. Linzon noted that [C.K] was still not going into the community in July 2018 and was extremely fatigued. In fact, [C.K] could not accommodate a visit by her granddaughter and her granddaughter’s fiancé. [C.K] continued to struggle even 3½ years post accident.

The In-Home Assessments.

32[C.K] was assessed by two occupational therapists, one retained on her behalf and one retained by TD. I am struck by the similarity of their findings and by the fact that those findings reflect the reports prepared by the treating health care professionals, Jenna Copeland, Heidi Reznick and Leslie Lindzon.

33Ranya Ghatas is a registered occupational therapist who assessed [C.K] on September 22, 2017. Ms. Ghatas was not called as a witness but her report was placed before me in evidence. In the report, Ms. Ghatas addresses the question of adaptation as follows:

Regarding adaptation, [C.K] has not been able to return to many activities due to pain, poor cognitive efficiencies, and poor functional state…. [C.K] is able to respond to appropriate changes in her home environment, to be aware of normal hazards and take appropriate precautions. She demonstrated good insight and judgment into her current physical limitations; however, her overall ability to function and perform her day to day activities continues to be hampered by her persisting reports of pain, decreased activity tolerances, psycho-emotional duress and cognitive inefficiencies.

34Susan Javasky, O.T., assessed [C.K] on behalf of TD approximately 9 months later, on June 27, 2018. Her report notes the following:

[C.K] interacted in a polite fashion … throughout the 2 hour and 20 minute assessment period. There was evidence of loss of focus, perseveration and tangential thought processes throughout the clinical interview. This occupational therapist had to refocus the claimant throughout the assessment. She did not have insight into these behaviours, continuing in the same fashion even after it was pointed out to her…

Based on subjective reports and participation in functional testing, [C.K] employs avoidant behaviours, remaining in bed the majority of the day as a coping mechanism.

35In the balance of her report, Ms. Javasky sets out specific examples of [C.K]’s limitations and abilities. It appears that [C.K] can now walk for 15 minutes, perhaps due to the efforts of Ms. Lindzon whose treatment overlaps the assessment.

36A review of the evidence from the treating healthcare professionals and the observations of Ms. Ghatas and Ms. Javasky, it appears that [C.K] has created a cocoon for herself within her apartment. Even within that cocoon, she will narrow her space to remaining in bed for much of the day. This picture stands in contrast to the active person who walked 5 km per day, went to the movies, concerts and restaurants and cared for her son. Her son now provides care to her.

The Neuropsychological and Psychiatric Assessments

37[C.K] attended two neuropsychological assessments. The first was carried out by Dr. David Kurzman on May 30, 2016. Dr. Kurzman expressed concerns that some of the validity testing he carried out indicated that [C.K] was not putting out full effort, others indicated the requisite effort. Nonetheless, expressing a measure of caution, Dr. Kurzman stated:

At this time, it is difficult to provide a detailed analysis on [C.K]’s neurocognitive profile in light of the variable engagement put forth during testing. However, it is noted that cognitive effects following a complex mild traumatic brain injury are not unexpected. Furthermore, while the most dramatic recovery occurs in the first year post-injury, additional albeit slower recovery is expected until two years post-accident.

38[C.K] underwent another neuropsychological assessment on June 11, 2018 conducted by Dr. Konstantine Zakzanis. This assessment, of course, is approximately 3½ years post-accident, and in accordance with Dr. Kurzman’s observation that improvement may continue for 2 years post-accident, it can be assumed that [C.K]’s condition at that time has a high degree of stability.

39Dr. Zakzanis found no issues with validity. He notes: “[C.K] “scores on the performance and embedded validity measures were in the normal range indicating that the assessment was valid and there is no evidence of feigning of cognitive impairment. I note that Ms. Javasky also testified that she had no concerns that [C.K] was feigning or exaggerating symptoms.

40Neither Dr. Rosenblatt and Dr. Chadda had concerns about [C.K] feigning or exaggerating her symptoms. They both diagnosed [C.K] with somatic symptom disorder with predominant pain. Dr. Rosenblatt also diagnosed [C.K] with major depressive disorder with anxious features. They differ on the extent to which that condition impacts [C.K]’s functioning. On the totality of the evidence, I prefer the opinion of Dr. Rosenblatt.

41In his report, Dr. Rosenblatt reviews the evidence of the treating healthcare professionals and of the assessing occupational therapists. He synthesises that evidence and his observations from his clinical observations in his finding that [C.K] suffers from a marked impairment in the domain of adaptability.

She had difficulty with completing simple forms. She missed questions on the forms. She answered questions on the form incorrectly. She had difficulty following directions during the assessment. Her answers to questions were often not directly related to the questions. She relies on her son to do the majority of household chores. She has difficulty following directions from treating personnel. She is forgetful of her appointments. Her son must keep her on track and remind her with regards to appointments. She does not plan her days. She has problems handling stress. Under stress, she becomes confused and needs to call her sons for help. When she is under stress she stays home, relaxes and lies down. She may try to solve the problem related to stress. She needs medication to help manage her stress. Before the accident she had no problem in coping with stress. She is much less productive than she was before the accident. She has difficulty with making decisions. Her children make decisions for her. She is irritable.

42All of Dr. Rosenblatt’s views on [C.K]’s abilities and limitation are more than supported by the reports of healthcare providers and assessors spanning over 3 years from the accident.

43In her evidence, Dr. Chadda testified that she also considered the occupational therapy reports and assessments. She notes the assessments performed by Ms. Ghatas and Ms. Javasky and quotes somewhat from Ms. Ghatas’s report, however, there is no clear review of their findings and how they impact her decision that [C.K] suffers from a mild impairment in the domain of adaptability. In fact, when she sets out this conclusion at the end of her report it is unsupported by any analysis or synthesis of the extensive medical record. Her finding is conclusory and unsupported. If I cannot follow how Dr. Chadda arrived at her conclusion and what medical records she found persuasive, I cannot assign weight to her opinion.

CONCLUSION

44I find that [C.K] has established, on a balance of probabilities, that she suffers from a marked impairment in the domain of adaptability and comes within the provisions of s. 3(2)(f) of the Schedule. She has sustained a catastrophic impairment as a result of the accident.

INTEREST AND AN AWARD

45The issues in dispute list a claim for interest and an award under s. 10 of O. Reg 664. I suspect that these issues have been mistakenly left in when the focus of the hearing became whether [C.K] sustained a catastrophic impairment and specific claims for benefits were deferred until that finding was made.

46Since catastrophic impairment is not a benefit but a designation, there is no monetary issues in dispute before me. Both interest and an award are linked to delay in the payment of a benefit. In the absence of a benefit in dispute, these claims must fail at this stage. I make no award of interest or an award under s. 10 of O. Reg 664.

Released: July 8, 2020

__________________________

D. Gregory Flude

Vice-Chair