Released: July 31, 2020
Tribunal File Number: 17-002915/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits
Between:
M.L.
Applicant
and
Primmum Insurance Company
Respondent
DECISION
ADJUDICATOR:
Craig Mazerolle
APPEARANCES:
Representative for the Applicant:
Joseph Obagi, Counsel
Representative for the Respondent:
Joseph Griffiths, Counsel
Held by In-Person Hearing:
October 7-10, 2019
OVERVIEW
1The applicant was injured in a motor vehicle accident on April 12, 2012. To assist in her recovery, she sought a catastrophic impairment designation, pursuant to the Statutory Accident Benefits Schedule (the “Schedule”).1 When the respondent refused to designate her as such, the applicant applied to the Tribunal.
2As I will explain, I find that the applicant suffered a catastrophic impairment as a result of the subject accident, dated back to October 19, 2016.
CATASTROPHIC IMPAIRMENT – CRITERIA 8
3At the time of the accident, s. 3(2) of the Schedule listed the ways that an insured person could be deemed to have suffered a catastrophic impairment. Of note, subsection (f) stated that a catastrophic impairment includes:
… an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.” This subsection is sometimes referred to as “Criteria 8”.
4When applying this criterion, an assessor shall consider four domains of human activity: i.e., activities of daily living; social functioning; concentration, persistence, and pace; and deterioration of decomposition in work or worklike settings (often referred to as “adaptation” to work or worklike settings).
5According to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (the “Guide”), these domains are evaluated on a scale from “No impairment” to “Extreme impairment” [emphasis in original]:
Area or aspect of functioning
Class 1: No impairment
Class 2: Mild impairment
Class 3: Moderate impairment
Class 4: Marked impairment
Class 5: Extreme impairment
Activities of daily living
No impairment is noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some, not all, useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning
Social functioning
Concentration
Adaptation
6In reaching these determinations, the Guide recommends investigating the “independence, appropriateness, and effectiveness of activities” associated with these domains.
7Applicants have the onus of demonstrating (on a balance of probabilities) that they have suffered a catastrophic impairment as a result of the accident.2
PARTIES’ POSITIONS
8The applicant argued that the evidence before the Tribunal makes it clear that she has suffered a marked impairment in all four domains of human activity, and that these impairments are directly linked to her accident-related diagnosis of Somatic Symptom Disorder. This condition has affected all aspects of her life, as she has: found it difficult to manage daily life without her mother; limited her social interactions; had trouble making plans, etc.
9Further, the applicant challenged the credibility of the respondent’s neuropsychological expert, Dr. Darren Schmidt. Specifically, she submitted that his opinion displayed bias, such that his assessment of her functional capacity cannot be accepted as an accurate representation of her post-accident condition.
10The respondent based its argument on the premise that the applicant has not met her onus for demonstrating a catastrophic impairment. First, the applicant’s main experts, Drs. Paul Mendella and Shawn Marshall, did not use a multidisciplinary approach (e.g., there was no occupational therapist on their team), and their now dated analysis does not capture the significant improvement the applicant has made in recent years. Also, since there have been scant examples of the applicant attempting to return to work after the accident, her experts have been unable to provide valid illustrations of her failure to adapt to worklike settings.
11Second, the respondent pointed to her functional improvement as evidence that the applicant is able to effectively manage her accident-related symptoms. As such, her noted breakdowns during testing are less an indication of her inability to cope, rather they were brought on by the artificiality and stressful nature of formal assessments.
12Finally, the respondent cited a number of decisions from the Tribunal and the Financial Services Commission of Ontario (“FSCO”) wherein more extreme impairments were required to establish a catastrophic impairment.3
BACKGROUND AND EXPERT OPINIONS
Pre-Accident Life and Work
13For over a decade before the accident, the applicant was a member of the [Police Service]. Starting as an officer working in busy boroughs of the [city], she eventually branched out into community relations and then investigations. According to her testimony, this latter role involved a combination of desk work (spent almost exclusively at a computer) and investigations in the field. The time spent in these two roles was fairly balanced (i.e., 60/40 desk vs. field).
14This work provided the applicant with a significant sense of purpose, especially when she was able to engage with the community. What is more, in the period directly preceding the accident, the applicant was completing the steps needed to become a sergeant, including passing the sergeants’ exam in and around 2011.
15Before this position, the applicant worked as a kinesiologist and a personal trainer.
16Beyond her work with the [Police Service], the applicant found personal worth through her roles as a mother and friend. In particular, the applicant played an active part of her daughter’s life, e.g., a trainer for her ringette team, regular volunteer with the local Sparks and Brownies contingents, and a member of a reading program at her daughter’s school. The applicant also worked hard to maintain a large house, with the help of her mother and then boyfriend.
17In her free time, the applicant led an active social life, with dinner parties and large gatherings regularly taking place at her house. She was also a voracious reader, and she regularly participated in various forms of physical activity.
Immediate Aftermath of the Accident
18According to the motor vehicle accident report, the applicant’s vehicle was rear-ended while attempting to exit a highway. She complained about a sore head at the time.
19She expanded on her description of the accident during the first neuropsychological assessment with Dr. Mendella (report dated January 6, 2013): “The force of the crash propelled her forward, and she struck her head on the driver’s side post. She did not lose consciousness although she was dazed and confused. She also had a ‘goose egg’ on the front, left side of her head.”
20Her vehicle was still drivable, though she cannot recall the drive from the accident site to the police station where she reported the crash.
21The applicant went into work the following day, but, when she sat down at her desk, she “was unable to focus when she tried to look at her computer monitor.” At the insistence of her supervisor, the applicant went to the hospital.
22The ER physician diagnosed her with a “whiplash injury” and a “minor head injury”.
23Several days later, the applicant again attended the ER. According to the record from this visit (dated April 15, 2012), she had started vomiting after her last visit to the ER. She also started to experience “persistent” headaches. The attending physician diagnosed her with a concussion and told her not to attend work for about a week. Of note, this record indicated that her boyfriend “approached triage stating [the applicant] had vomitted [sic]” while waiting at the hospital.
24When she returned to work on April 21, 2012, she again found it difficult to concentrate. According to one of the assessment reports provided by the respondent’s occupational therapist, Sally Anne Nicholson, the applicant was provided “an alternate position with an ‘easier workload’”, though she was only there for two days before quitting.
25Up and until the hearing before this Tribunal, she has never returned to work again.
Applicant’s Expert Opinions
26The parties provided me with a number of expert opinions that detail the applicant’s post-accident condition and activity levels. For ease of reference, I will briefly summarize the reports that are central to my present analysis, starting with the applicant’s reports.
27Culminating in a diagnosis of a minor traumatic brain injury and associated postconcussional disorder, Dr. Mendella’s January 2013 report is the first of several neuropsychological assessments this assessor conducted on the applicant. Of note to my analysis, his observations made during this early assessment have been replicated in several other reports to follow.
28For instance, Dr. Mendella found that the applicant was tearful while completing his psychometric tests, and she had to return briefly for a second day due to her inability to complete all of the testing in one sitting. In fact, the assessor noted that: “Her performance on the letter fluency task appeared to be influenced by emotional factors, as she became tearful while completing the test.” Similar emotional reactions will be noted throughout the assessments to follow.
29Dr. Mendella also opined that the chronicity of the applicant’s symptoms might be linked to her pre-accident history of concussions—the most recent of which took place several months before the accident.
30Next, Dr. Mendella’s 2016 neuropsychological assessment (report dated January 10, 2016) is when he diagnosed the applicant with Somatic Symptom Disorder and Adjustment Disorder. His testing also revealed moderate levels of depression and rumination, but he opined that the applicant was likely underreporting her emotional distress due to the promotion of stoicism and toughness in her former profession. Ultimately, he concluded that the applicant’s “prognosis for returning to work is guarded from a neuropsychological perspective, considering the nature and chronicity of her symptoms.”
31I would also highlight the observation from Dr. Mendella that, while much of the applicant’s test results were valid, he could not rely on the results of his computer-based testing, due to the issues the applicant was having looking at a screen for extended periods of time.
32Dr. Marshall’s medical legal report from July 14, 2016 adds another perspective to Dr. Mendella’s conclusions from this period, with his prognosis being equally guarded. While he found that she would likely return to her activities of daily living, Dr. Marshall was concerned about the longstanding nature of her symptoms (e.g., she still reported her headaches were exacerbated by reading and physical activity). As such, he concluded that it would be highly unlikely that the applicant could ever return to work.
33I would note that the opinions of Dr. Marshall are particularly compelling in my analysis, as the two met 14 times between January 2013 and June 2016.
34Following the release of Dr. Marshall’s opinion, Dr. Mendella provided another report, this time focused on how the applicant’s impairments were impacting the four domains of human activity (dated September 30, 2016). Briefly, Dr. Mendella concluded that the applicant had a Class 4 impairment in the domains of activities of daily living and adaptation to work and worklike settings. Class 3 impairments were found for the remaining two domains.
35Central to his analysis was the interaction between the applicant’s physical and psychological condition, as encapsulated in the diagnosis of Somatic Symptom Disorder. That is, he observed that her pain levels increased if she tried to push herself physically, which, in turn, caused her mood to go down. This lowered mood would then lead to more pain, and the cycle started again.
36This pain/mood cycle was even more pronounced when examining her capacity to work, as Dr. Mendella concluded that any return to work would likely lead to a deterioration in all other aspects of her life:
In her current condition, she would be unable to attend work consistently and her ability to successfully manage common stressors in the workplace would be poor. Finally, if [the applicant] attempted to return to gainful employment in her current condition, her ability to participate in activities outside of work, and to maintain her relationships with others, would be further compromised.
37Following this report from Dr. Mendella, Dr. Marshall and the applicant both signed an Application for Determination of Catastrophic Impairment (“OCF-19”) on October 19, 2016 stating that the applicant had suffered a catastrophic impairment in accordance with Criteria 8. The OCF-19 was then submitted to the respondent.
Respondent’s Expert Opinions
38In response to the applicant’s OCF-19, the respondent set up a number of its own assessments. Of note, the respondent sought two functional assessments from an occupational therapist, Ms. Nicholson, i.e., an in-home assessment (conducted on March 19, 2019; report dated May 28, 2019) and a community-based assessment (conducted on April 5 and 11, 2019; report dated May 28, 2019).
39In her first assessment, Ms. Nicholson observed no serious physical limitations in the applicant’s movements and range of motion, and only minor issues with her planning and budgeting skills. There were also appropriate social interactions. However, after this three-hour assessment, Ms. Nicholson found the applicant was noticeably fatigued. Similar to Dr. Mendella, she also observed signs of emotional distress throughout the visit (though the applicant would always find a way to regain her composure).
40The community-based assessment was then split between two locales: a busy shopping mall on the first day, followed by tasks and written tests at the assessor’s clinic on the second. Ms. Nicholson specifically chose her clinic, as, in her opinion, it “best simulates” a workplace.
41On the first day at the mall, Ms. Nicholson found the applicant performed her tasks effectively. That is, she was able to drown out the distractions of a loud, crowded shopping centre, all the while maintaining socially appropriate interactions with various store employees. She also demonstrated good planning and multi-tasking skills (e.g., she chose a reasonable route to navigate the mall).
42However, similar to the in-home assessment, Ms. Nicholson found the applicant struggled to manage her emotions, so much so that the assessment was terminated early. That is, this community assessment is generally completed in one day, but the applicant was unable to handle the four hours needed to complete the testing at both locations, so it was split in two.
43The second day was less successful. In addition to clear signs of emotional distress throughout (e.g., her hands were shaking from the outset), her test results revealed serious deficits.
44These issues included: the applicant experiencing such an intense emotional breakdown that one of the test scenarios was not attempted; a 40% error rate on a mental flexibility and memory task; and “significant difficulty” during the unstructured part of the “Zoo Map” test (wherein, paths are drawn on a map in accordance with a number of specific requirements).
45Also, during this part of the community assessment, the applicant was asked to comply with a series of tasks meant to test her capacity for time management (i.e., while completing the testing, the applicant had to remember to perform a number of unrelated tasks at set intervals). Even with the assistance of the clock on her phone, Ms. Nicholson concluded that the applicant “had been able to manage multiple task demands for a short period, but could not sustain it.”
46I would also note that, at the start of the community-based assessment, the applicant told Ms. Nicholson that she spent about 1.5 days in bed following the earlier, in-home testing.
47In sum, her performance during the two days of community-based assessments led Ms. Nicholson to conclude that the applicant’s physical, cognitive, and emotional limitations had a [emphasis in original] “MAXIMUM functional impact” on the activity of “Maintaining work appropriate behaviours, communication and emotional control”.
48After reviewing Ms. Nicholson’s reports and conducting an interview and testing of his own, the respondent’s neuropsychologist, Dr. Schmidt, released his neurocognitive and psychological assessments (assessment conducted on May 13, 2019; reports both dated May 28, 2019).
49In the neurocognitive report, Dr. Schmidt concluded that the applicant had not suffered a concussion as a result of the 2012 accident. Instead, she likely had a “minor head injury” that should have resolved shortly after the accident with no lasting limitations of a catastrophic nature. To support this conclusion, the assessor cited inconsistencies in the medical record (e.g., no eyewitness evidence to corroborate her claim that she vomited in the ER), as well as the relatively minor nature of the accident (e.g., low speed impact; she did not lose consciousness, etc.). Further, there had been no diagnosis to date of any neurocognitive disorder resulting from a traumatic brain injury caused by the accident.
50Then, in his psychological assessment, Dr. Schmidt reached a similar diagnosis to Dr. Mendella, i.e., Somatic Symptom Disorder and Adjustment Disorder. However, he did raise several concerns with her presentation during the assessment. First, he noted inconsistencies between her self-reported symptoms and her psychometric test results. Then, in stark contrast to the significant discomfort others recorded during their assessments, he found little evidence that the applicant was uncomfortable during his testing. Taken together, Dr. Schmidt suggested she could be experiencing latrogensis, i.e., an exacerbation of symptomology caused by one’s healthcare providers.
51Overall, he provided the following impairment ratings:
Area or aspect of functioning
Rating
Activities of daily living
Class 3 – Moderate impairment
Social functioning
Class 2 – Mild impairment
Concentration
Class 1 – No impairment
Adaptation
Class 3 – Moderate impairment
52In regard to activities of daily living, Dr. Schmidt found that the applicant was able to complete some activities with assistance, but that this limited capacity was mainly focused on activities related to her daughter.
53Then, for social functioning, there was a recognition that the applicant lacked emotional control with Ms. Nicholson, but she revealed no such deficits during his testing.
54For concentration, Dr. Schmidt again accepted the findings of Ms. Nicholson, but he placed significant weight on the fact that the applicant drove herself to his assessment. That is, he found the ability to drive and possess a drivers’ licence “assumes intact neurocognitive… behavioural, physical, and emotional functioning”. He also highlighted that there was no identified neuropsychological or neurological impairment “as it pertains to the identity of a traumatic brain injury.”
55Finally, in light of her mild social impairment and the findings from Ms. Nicholson, Dr Schmidt concluded that there was a moderate impairment to the domain of adaptation. However, he noted that the applicant was able to complete 25 minutes of his computer-based testing without issue, and she possessed effective coping strategies. During the hearing, he expanded on this rating by highlighting the applicant’s ability to sit through his entire testing program.
ANALYSIS
56I find that the applicant has experienced a Class 4 impairment in two of the four domains of human activity, i.e., activities of daily living and adaptation. This impairment was caused by an accident-related mental or behavioural disorder, namely, her Somatic Symptom Disorder.
57Though a marked impairment in one domain is sufficient to determine that the applicant has suffered a catastrophic impairment, I still find it necessary to discuss her impairments in all four domains. Briefly, the Guide’s references to the overlapping aspects of the domains establish that these are not watertight compartments. For instance, in its description of “Concentration, persistence, and pace”, the Guide directs assessors to consider deficiencies in work settings and activities of daily living. Adjudicator Gosio also noted in 16-001226 v. State Farm Mutual Automobile Insurance Company that: “[b]y definition, impairment in adaptation affects the ability to function across all activity levels.” 4 Therefore, important context about the applicant’s capacity to perform her daily activities and adapt to workplace settings can be gleaned from my findings in the other domains.
Accident-Related Impairment
58First, I am satisfied that the applicant has established the existence of an accident-related impairment, namely the diagnosis of Somatic Symptom Disorder. As the records and reports summarized above make clear, the applicant suffered from a minor traumatic brain injury as a result of the accident. This injury eventually led to physical symptoms (chief among them, headaches) that, in turn, exacerbate psychological distress. This cycle of increasing pain linked to a worsening mood (with this lower mood then causing increased pain) has now manifested itself as an ongoing physical and psychological condition.
59I am further satisfied that this diagnosis is not a transient condition, but rather a long-lasting—perhaps even permanent—impairment that continues to impact the applicant’s useful functioning across all of the domains. Her symptoms have persisted well past the normal course of recovery cited by the experts, and there is evidence to suggest that the applicant’s condition might even be deteriorating (e.g., decreasing scores on the cognitive tests performed by Dr. Mendella).
60This long period of recovery has been cited by Dr. Schmidt as a reason to question the connection between the accident and this condition. That is, since Dr. Mendella did not diagnose the applicant with Somatic Symptom Disorder until 2016, Dr. Schmidt suggested that her present condition might be unrelated to the 2012 accident (because a traumatic brain injury would not take that long to heal).
61I do not accept this line of reasoning. Beyond Dr. Marshall’s opinion that the accident was directly related to her present symptoms, Dr. Mendella opined that the applicant’s pre-accident concussions could explain the persistence of her impairments. Further, Dr. Mendella stated that longstanding pain can affect cognition on an ongoing basis, which I take to mean that, while a head injury could be largely resolved, residual pain may have lasting, functional effects.
62Dr. Schmidt also questioned whether the applicant actually suffered a head injury during the 2012 accident. Specifically, he raised a number of concerns in his reports about the information that was used to diagnose her with a mild traumatic brain injury. I do not share these concerns.
63In addition to the near unanimous opinion among the experts that the applicant suffered from some form of a head injury from the accident, I am not swayed by the issues raised by Dr. Schmidt. That is, while the missing information he highlighted would have been helpful, it would be unreasonable to expect the applicant to provide the best possible forms of information to her healthcare providers before she could merit such a diagnosis.
64I would also add that the respondent’s physical medicine assessor, Dr. Kevin Green, diagnosed the applicant with “post-concussion syndrome” in a report authored only several months after the accident (i.e., report dated August 29, 2012).
65Finally, the respondent cited M.L. v. Security National Insurance Co., a decision from FSCO which references a distinction between physical and psychological conditions.5 Specifically, Arbitrator Mongeon distinguished the effects that an insured person’s physical pain was causing from those impairments caused by a mental disorder. I do not find this distinction is of assistance to this present dispute. It is clear the applicant’s lowered mood, energy, and cognitive capacities (which are brought on by the pain stage of the cycle described above) can be understood as a mental disorder.
Activities of Daily Living
66The Guide defines “activities of daily living” as determining the quality of:
[S]elf-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities… In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction.
67Then, as highlighted by Adjudicator Gosio in State Farm, the Guide also directs assessors to measure: “not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.”6
68As the expert evidence demonstrates, the applicant’s ability to perform her activities of daily living has clearly been impacted by the accident. Notably, Dr. Mendella observed in his 2016 catastrophic impairment report that headaches have “significantly” limited her ability to participate in housekeeping activities, as her pain levels will increase if she pushes herself (thus starting the cycle of a lower mood, which, in turn, leads to yet more pain).
69He also found in this same report that the applicant needs more time to complete self-care activities, due to decreased energy and motivation. In fact, the applicant reported that she was only “functioning at 10-15% of her pre-accident physical activity level.” Specifically, she found it difficult to participate in important, pre-accident activities, such as coaching her daughter’s ringette team.
70Largely mirroring these findings, Ms. Nicholson’s later, in-home assessment allowed her to also conclude that the applicant’s “daily routine is dysfunctional on ‘bad days’ and she is heavily reliant on the support of her mother to manage day-to-day responsibilities in general.” That is, while the applicant still possessed the ability to perform some household tasks (e.g., light cleaning and meal preparation), her accident-related condition affected her capacity to perform these tasks.
71Additionally, it was clear to Ms. Nicholson that the applicant only possessed limited energy, both emotional and physical. These limited reserves were, therefore, carefully doled out in a fashion that would best meet her daughter’s needs (versus the maintenance of the household).
72Ms. Nicholson’s findings are also of assistance, as her testing revealed the applicant required cuing to conduct many of the tasks placed before. That is, while she was able to successfully complete most, though not all, of her assessment, Ms. Nicholson still found that the applicant would not start these tasks of her own volition.
73Finally, the applicant’s mother has provided some helpful insight into her daughter’s condition. Specifically, Ms. Nicholson’s in-home report cited the applicant’s mother, who stated that her daughter has struggled since the accident. While she has experienced some improvements between 2017 to 2019, the applicant is, ultimately, a shadow of herself: “She’s still completely different. Her physical health is not better. Night and day. Many, many days are low energy.”
74It is true that the applicant’s mother did not testify before the Tribunal—and, as such, was not subjected to cross-examination of this evidence. However, I am satisfied that this commentary on her daughter’s condition is corroborated by the evidence summarized above, including the other findings in this report from Ms. Nicholson.
75In response to this significant drop in the applicant’s activity levels, the respondent highlighted that there are some indications that her ability to manage her daily activities is improving. For instance, in 2013, and then again in 2014, the applicant was assessed by an occupational therapist, Andrea Liu. Over the course of these in-home assessments, Ms. Liu noted improvements in the applicant’s balance and reading endurance. Ms. Liu also reported in 2013 that the applicant had learned to use her phone as a planning and scheduling tool.
76The applicant’s testimony before the Tribunal also revealed that several important aspects of self-care are being done by the applicant without assistance (e.g., personal hygiene, dressing, clothes shopping, etc.). She had also participated in some drawing classes following the accident, and she has returned to driving. In fact, through the use of regular breaks, the applicant managed to drive between Ottawa and Toronto.
77Finally, the respondent placed significant weight on the applicant’s ability to go on several international vacations following the accident. Though I accept the applicant’s contention that these trips were largely sedentary affairs that required considerable assistance from loved ones, they are still evidence of her completing a complex project involving a number of steps.
78Even in light of these improvements though, I am satisfied that the applicant’s accident-related cycle of pain and psychological distress significantly impedes her capacity to independently perform the activities of daily living in a consistent fashion. That is, while planning and energy conservation strategies may allow the applicant to maintain a minimal level of useful functioning, it is clear from her consistent self-reporting that her capacity to perform these acts is unpredictable. Put another way, useful functioning in this domain is, ultimately, reliant on whether she is having a “bad day”. I also accept that the applicant requires considerable help from her mother, and she does not possess the ability to cue up these tasks in any consistent manner.
79Therefore, when this domain is viewed through the characteristics highlighted by the Guide (namely, independence and sustainability), I find the applicant has suffered a Class 4 impairment.
80The respondent did follow a line of questioning with the applicant as to whether her activity levels would have naturally decreased as her daughter aged. That is, the respondent suggested that much of her daily activities revolve around her daughter, and so—regardless of whether she was involved in the accident or not—her level of community participation would have changed as her daughter grew up.
81I do not place much weight on this argument, as, once again, it is not the number of activities that one should concern themselves with, but rather the “overall degree of restriction”. Therefore, while I accept that the types and number of daily activities the applicant participates in is linked to her daughter’s changing needs, this dynamic does not alter the fact that the applicant’s daily life is now effectively dictated by the effects of her accident-related impairment.
Social Functioning
82The domain of “social functioning” is defined as:
[A]n individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbors, grocery clerks, landlords, or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics.
83Though the applicant reported a significant decrease in social activities following the accident (with much of her energy saved for family and loved ones), none of the parties’ assessors determined that she experienced a marked impairment in this domain.
84For instance, Ms. Nicholson noted in her in-home assessment that the applicant still regularly sees several friends without any conflict. She also has no issue carrying on a conversation, and she is capable of expressing her emotions.
85Further, during her testimony, the applicant conceded that she has been able to carry on more than one romantic relationship following the accident, including a long distance relationship with an individual in the United States. She also took three solo trips to the United States to visit this man.
86Finally, a common comment from the parties’ assessors is the appropriate social behaviour she displayed during assessments, including polite encounters with store clerks during the mall visit.
87In spite of these findings, I do accept that the applicant has experienced a non-trivial limitation to her capacity for social functioning, namely, I accept she is less involved in the community. I also accept the applicant’s contention that her romantic relationship at the time of the accident ended, in part, because of accident-related impairments. However, considering the appropriate communication skills she has been able to demonstrate during assessments and with those close to her, I find that most of her capacity for social functioning remains intact.
88In sum, I conclude the applicant has suffered a Class 2 impairment in this domain.
Concentration, Persistence, and Pace
89The domain of “Concentration, persistence, and pace” is defined as “the ability to sustain focused attention long enough to permit the timely completion of tasks”. Since the results from standardized testing cannot be used in isolation to make this determination (particularly as it relates to work tasks), I do note that the Guide provides helpful direction for what assessors should also be looking for when analyzing one’s testing performance:
Taking a standardized test requires concentration, persistence, and pacing; thus, observing individuals during the testing process may provide useful information. The description of test results should include the objective findings, a description of what occurred during the testing, and the test results.
90There are clear deficiencies in this domain (as well as overlap with domains where I have found more significant impairments), but I still conclude that the applicant retains some of her useful functioning in this domain. Briefly, the neurocognitive testing performed by the parties’ assessors established that the applicant possesses some—though not all—of her capacity to concentrate and persist.
91To start, Dr. Mendella and Ms. Nicholson again both found that the applicant’s ability to perform the essential aspects of this domain were affected by her accident-related pain/mood cycle. Put simply, as pain and distress increases, her ability to concentrate decreases. However, even in spite of these challenges, the applicant was still able to complete several rounds of stressful neurocognitive testing, and her overall performance was not dramatically deficient (save for a few outliers).
92For instance, as explored during cross-examination, Dr. Schmidt’s neurocognitive testing revealed some of the most consistent drops across any of the assessments. Even still, these drops were mainly a decline from an estimated, pre-accident capacity of high average – superior to results in the range of low average – high average. As such, her ability to complete this testing without significant, widespread errors is evidence that some of her capacity to concentrate remains.
93Additionally, though Ms. Nicholson’s community-based assessment had to be completed over several days (as opposed to the single day she had originally planned), the applicant still completed these tasks with some degree of success. In fact, Ms. Nicholson’s observed that the applicant had no issue with pacing when completing questionnaires. Also, while Ms. Nicholson did identify issues with cuing, once instructed to complete a task, the applicant would generally continue working until the assignment was done.
94Taken together, while there are some notable deficiencies, I do not conclude that the applicant’s accident-related impairments have significantly impeded useful functioning in this domain. Instead, I find the applicant has suffered a Class 3 impairment.
95I do note that this impairment rating is where I diverge the most from the rating provided by Dr. Schmidt. I feel confident in disregarding his finding of a Class 1 impairment, because the basis of his opinion appears to ignore the drops he observed in his testing, as well as the difficulties noted by the other member of his assessment team. Instead, he placed inordinate weight on the applicant’s ability to drive, which I do not find compelling enough—on its own—to disregard the rest of the evidence before me. Dr. Schmidt also noted during cross-examination that, save for his observation that she drove to his office, he lacked any details about the applicant’s post-accident, driving practices (e.g., whether she drove at night or not).
Deterioration or Decomposition in Work and Worklike Settings – “Adaptation”
96The Guide defines the domain of “Deterioration or Decomposition in work and worklike settings”, otherwise known as “adaptation”, as follows:
[R]epeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers.
97While the applicant has made commendable progress in managing the detrimental effects of the accident—including a high level of dedication to treatment—she still seriously struggles with emotional regulation. These emotions are all the more difficult to manage in light of her unpredictable physical condition and energy levels. Without an adequate level of control, these negative emotions limit her capacity to perform a number of essential workplace tasks: e.g., appropriate communication, the ability to act on complex instructions, etc. Therefore, when this inability to maintain emotional stability is paired with the cognitive challenges listed above (namely, her difficulty self-starting and managing her time), I am satisfied that the applicant’s accident-related, impairments significantly impede useful functioning in this domain.
98First, the applicant’s noted difficulty at maintaining her composure during standardized testing is compelling evidence of her limited capacity for emotional regulation in the workplace. For instance, Dr. Mendella specifically linked her performance on some of his tests in 2013 to her tearfulness during the assessment. Jump ahead to 2019, and Ms. Nicholson still found that the applicant’s hands were shaking while completing tests in a clinical setting meant to resemble a workplace. In fact, the applicant became so overwhelmed during a scheduling task that only three of the four scenarios were presented by Ms. Nicholson.
99Dr. Schmidt took issue with this finding from Ms. Nicholson, as he found no such issues during his testing. I do not accept this conclusion, as the applicant’s testimony revealed she was emotionally distraught during Dr. Schmidt’s assessment as well. He also noted himself during examination-in-chief that there were moments of tearfulness during his assessment, though they were limited to the interview portion (not the testing). Therefore, when these statements are considered alongside the observations from other assessors, I accept that Dr. Schmidt’s testing also caused some level of emotional distress.
100Second, when assessing the applicant’s current capacity for managing stress and emotions in the workplace, her pre-accident employment provides helpful guidance. That is, it is reasonable to infer that the level of stress a police officer is required to manage on a day-to-day basis is quite elevated. In fact, as Dr. Mendella commented in his report from January 2016, the culture of the police service is often one where individuals are expected to not show any signs of weakness. Therefore, when considering her general success on the job (and the possibility of a promotion), I am satisfied that the applicant possessed a high tolerance for stress before the accident. When this high level of pre-accident resilience is compared to emotionality during cognitive testing and a visit to the mall, one is left with the strong impression that her capacity for emotional regulation has been significantly compromised.
101Finally, I am satisfied that the applicant’s Somatic Symptom Disorder leaves her with limited, unpredictable amounts of energy—energy that must be doled out in a careful, well-planned manner. As such, if she is prioritizing her relationships with her loved ones (and maintaining minimal standards of housekeeping), it is highly improbable that she could then handle the added stress and emotionality of employment.
102What is more, the applicant’s need for highly-structured situations that she can plan for highlights another challenging aspect of working life. Whether it is the changing demands of clients and supervisors, or the need to vigilantly monitor for hazards, unpredictability is a defining feature of most workplaces. Put another way, in contrast to the recurring chores and tasks that must be done day after day to ensure good health and a clean house, this predictability is absent in the working world. Therefore, I am further satisfied that the applicant’s need to plan and conserve her emotional and physical energy poses yet another significant barrier in this domain, as her capacity for flexibility has been compromised by her accident-related condition.
103In light of these findings, I am then satisfied that the following conclusion from Dr. Mendella’s 2016 catastrophic impairment report is a credible and compelling prognosis:
It is my opinion that any attempt on her part to return to gainful employment would result in a worsening of her physical symptoms (most notably her headaches and her fatigue), which would in turn result in a deterioration in her mental health status and an exacerbation of her cognitive symptoms. In her current condition, she would be unable to attend work consistently and her ability successfully manage common stressors in the workplace would be poor. Finally, if [the applicant] attempted to return to gainful employment in her current condition, her ability to participate in activities outside of work, and to maintain her relationships with others, would be further compromised.
Residual Functional Capacity
104To assist in this determination, the Guide then suggests that an assessor should consider an individual’s “residual functional capacity”, i.e., one’s ongoing capacity for: understanding and memory; sustained concentration and persistence; social interaction; and adaptation.
105First, one’s “understanding and memory” speaks to a person’s ability to remember and understand workplace procedures and instructions. In the present case, testing revealed that, while the applicant maintains the capacity for understanding simple instructions, increasing complexity will lead to increased stress and, in turn, more debilitating physical symptoms.
106Then, for “sustained concentration and persistence”, the Guide recommends investigating one’s ability to carry out instructions, maintain concentration, attention, and a consistent pace, all the while adhering to common workplace requirements (e.g., attendance, not requiring constant breaks, etc.). While I have not found the related domain of concentration, persistence, and pacing to be significantly impaired, there are still clear deficiencies. For instance, even if the applicant has a list of detailed instructions before her (as was the case during Ms. Nicholson’s time management task), she still needs consistent cuing and reminders to stay on track. When her difficulty with emotional regulation is then paired with these deficiencies in task initiation and time management, it appears the applicant could only function in a workplace where a supervisor was constantly checking in on her performance and compliance—a clear lack of independence.
107I would also add that the applicant’s limited energy resources would make it difficult to maintain regular attendance without an excessive number of breaks. That is, considering she required 1.5 days in bed following the in-home assessment with Ms. Nicholson, it is difficult to see how she could maintain a consistent work schedule outside of the house.
108Third, in accordance with my findings regarding the domain of “social functioning”, I can conclude that the category of “social interaction” is the area where the applicant’s residual functional capacity remains the strongest. That is, considering this factor seeks to determine whether an individual possesses the ability to engage in appropriate interactions with both the public and fellow coworkers, I am satisfied that the applicant maintains an adequate capacity for social interaction.
109One caveat though is that this capacity—much like the rest of her functional abilities—appears to be dependent on the applicant’s physical and emotional symptoms at the time. As noted by Dr. Mendella in his catastrophic impairment report: “I suspect that on a day-to-day basis, her ability to interact and to communicate effectively with others fluctuates, depending on her level of pain, her fatigue, and the severity of her mood and/or anxiety symptoms.” With this variability, it is questionable whether the quality of her social interactions would be consistently appropriate with the added stress of work.
110Finally, as part of this residual functional capacity analysis, “adaptation” seeks to determine whether one possesses the capacity:
… to respond appropriately to changes in the work setting; to be aware of normal hazards and take appropriate precautions; to use public transportation and travel to and within unfamiliar places; to set realistic goals; and to make plans independently of others.
111Beyond the issues cited above with emotional regulation, Ms. Nicholson’s assessments revealed some deficits in the applicant’s ability to adapt to a changing workplace. Briefly, the applicant had mixed results on tasks associated with problem solving, reasoning, and mental flexibility (e.g., the Zoo Map). However, Ms. Nicholson did find that she demonstrated the ability to adequately respond to emergencies.
112Taken together, though the applicant may retain a limited amount of residual functional capacity, especially in the area of social interaction, there are clear deficiencies across all of the areas that the Guide asks one to consider.
Return to Work Attempts
113One difficult aspect of this analysis is the limited number of times the applicant attempted a return to work, i.e., the day after the accident, and then a second, short attempt several weeks later. I make this comment not to denigrate the applicant’s post-accident efforts, but rather to highlight a key observation from the Guide:
An individual may have worked or have attempted to work when there was a question about impairment… Information concerning the individual’s behavior during the attempt, and the circumstances surrounding termination of the work effort, are particularly useful in determining the individual’s ability to function in a work setting and with others.
114Since there is limited evidence of the applicant’s attempts at returning to work (and all of these attempts were very close in time to the accident), examples of deterioration directly linked to work are not readily available. However, I still find that there is sufficient evidence to establish a marked impairment in this domain.
115First, Ms. Nicholson’s clinic-based testing was meant to replicate a workplace environment. As such, the difficulties she experienced in this setting provide strong evidence of a continuing inability to return to work, especially in light of the time that had elapsed between the 2012 accident and this assessment in 2019.
116It is also for this reason why I do not place much weight on the respondent’s argument about the artificial nature of assessments. That is, the respondent submitted that assessments are highly stressful and unusual situations that do not mirror the normal circumstances of day-to-day life. As such, her emotional breakdowns during testing should not be understood to be an accurate representation of her otherwise effective coping skills. I do not accept this reasoning, as Ms. Nicholson’s clinic-based testing attempted to replicate a workplace setting. I would also add that the applicant struggled with testing conducted in her own home—a setting that would not be artificial for the applicant.
117Second, in F.D. v. Allstate Canada,7 Adjudicator Daoud determined that the applicant suffered from a marked impairment in this domain, even though this applicant did not appear to attempt any return to work. The Adjudicator used this fact (in tandem with medical evidence) to conclude that this standard of impairment had been established:
The applicant has not gone back to work as of the date of the hearing and it has been noted by multiple assessors and health practitioners that she cannot return to work. It is evident to me, based on the evidence, that the applicant would not be able to handle the stressors of managing work of the demands that it would come with.
118Finally, requiring an applicant to provide a certain number of return attempts before finding a marked impairment could lead to absurd outcomes. That is, if an applicant is impaired to the point where she or he is simply unable to return to work (or such attempts could lead to deterioration), it would be illogical to say, “You have not returned to work a sufficient number of times to determine that you cannot return to work.”
119In sum, beyond the fact that I have examples of her unable to accommodate stressful situations that mirror a workplace, I am further satisfied that the applicant’s limited, return to work attempts should not be held against her. I would also note that the applicant’s longstanding dedication to treatment suggests that she would return to work if she could, but her recovery has simply been insufficient.
120I am satisfied that she has experienced a Class 4 impairment in this domain.
Remaining Arguments from the Respondent
121As summarized above, the respondent raised several other arguments that must now be addressed.
122First, the respondent criticized what it perceived to be a missing multidisciplinary approach in the applicant’s expert evidence. Specifically, while Dr. Schmidt had the benefit of Ms. Nicholson’s expertise as an occupational therapist, there was no such team assembled in advance of Dr. Mendella’s catastrophic impairment report. I do not accept this argument, as it ignores the complete scope of the information that Dr. Mendella had before him. This information included: the July 2016 medico-legal report from Dr. Marshall (who is a specialist in physical medicine and rehabilitation); the 2014 report from the occupational therapist, Ms. Liu; and a June 2014 report from an optometrist, Dr. Jon Wareham.
123Though it would have been preferable if these experts had worked together in and around the same time to produce a unified opinion, I do not see this lack of explicit coordination as a significant knock against the opinion of Dr. Mendella. Instead, by considering its congruence with the totality of the testimony and evidence before me, I am satisfied that his expert opinion is largely compelling.
124For this same reason, I do not place much weight on the respondent’s contention that the applicant’s expert opinions are too dated. That is, considering the consistency of the applicant’s self-reported symptoms and limitations (including her testimony before the Tribunal), as well as the comprehensive evidence that was available to Dr. Mendella, I am satisfied that his opinions are still responsive to the applicant’s condition and functionality.
125Second, the respondent cited a number of catastrophic impairment cases for insured persons with similar conditions to the applicant, though more extreme symptomology. Briefly, the respondent highlighted these cases, as it argued that a higher level of impairment is needed to establish a marked impairment. Beyond the fact that I am not bound by the findings of my colleagues on the Tribunal (or the arbitrators from FSCO), the analysis required under Criteria 8 is, necessarily, a highly contextual investigation. While these cases are helpful in determining the fine line between what constitutes Class 3 impairments versus Class 4, this determination must ultimately be made in accordance with a particular applicant’s circumstances. Therefore, in carefully weighing the applicant’s impairments against the standards enumerated in the Guide, I am satisfied that my present determination provides a reasonable appreciation of the evidence before me.
Dr. Schmidt’s Testimony and Alleged Bias
126I would like to take a moment to address a contentious part of the hearing. During the initial stages of Dr. Schmidt’s cross-examination, counsel for the applicant raised questions about this assessor’s training in catastrophic impairment assessment. During this back-and-forth, Dr. Schmidt provided an answer that was called into question by documentary evidence tendered by applicant’s counsel.
127Though I have not placed significant weight one way or the other on this part of Dr. Schmidt’s testimony, I still find it necessary to address this interaction in my decision. If I did not highlight this moment, it could appear as though I was not considering this expert’s evidence in a fulsome manner. I can assure the parties that this is not the case. Rather, I have determined that the applicant has suffered a catastrophic impairment, and that Dr. Schmidt’s observations and test results can be incorporated into this overall conclusion—even if his impairment ratings are at odds with these findings.
128It is for this same reason that I do not then find it necessary to address the applicant’s argument about Dr. Schmidt’s alleged bias. That is, whether I conclude that his opinion displays bias or not, this determination is immaterial. I have concluded that the evidence from both parties establishes that the applicant has suffered a catastrophic impairment, and so finding fault in this expert’s perspective is not of import at this time.
DATE OF THE CATASTROPHIC IMPAIRMENT
129If I determined that the applicant had been catastrophically impaired, there was then some debate as to when such a designation could be said to have taken place. To assist in this determination, the applicant cited 17-002561/AABS v. TTC Insurance Company Limited.8 In this decision, Adjudicator Bickley was presented with two OCF-19s that each relied on different criteria for establishing this applicant had been catastrophically impaired. Since the Adjudicator found that the applicant had been catastrophically impaired based on the criteria listed in the OCF-19 from June 21, 2016 (as opposed to an earlier OCF-19 from 2014), the effective date of the designation was found to be June 21, 2016.
130In line with this decision, the applicant is found to have been catastrophically impaired on the date that her OCF-19 was signed, i.e., October 19, 2016.
CONCLUSION
131By suffering a Class 4 impairment in at least one of the four domains of human activity described in the Guide, I find that the applicant suffered a catastrophic impairment as a result of the April 12, 2012 accident. This designation applies as of October 19, 2016.
AWARD
132On the second last day of the hearing, the applicant put the respondent on notice that she would be requesting an award in accordance with s. 10 of Regulation 664. However, the parties later agreed that they would wait until a determination on the question of catastrophic impairment before disputing this request.
133The parties shall contact the Tribunal within ten days of the release of this decision to schedule a case conference. This case conference shall address any of the procedural matters necessary for setting up a hearing to adjudicate the applicant’s award request.
134I remain seized of this proceeding.
Released: July 31, 2020
Craig Mazerolle
Adjudicator
Footnotes
- Effective September 1, 2010, O. Reg. 34/10.
- 16-003415 v. Allstate Insurance Company of Canada, 2018 CanLII 8071 (ON LAT), at para. 15.
- These cases included: Amiri v. Wawanesa Mutual Insurance Co., [2015] O.F.S.C.D. No. 320; and 16-000004 v. Wawanesa Mutual Insurance Company, 2017 CanLII 62155 (ON LAT).
- 2018 CanLII 13155 (ON LAT) (“State Farm”), at para. 44. See also: 16-000013 v. Peel Mutual Insurance Company, 2017 CanLII 33649 (ON LAT), at para. 71.
- [2017] O.F.S.C.D. No. 301, at para. 66.
- State Farm, at para. 20.
- 2019 CanLII 43902 (ON LAT).
- 2018 CanLII 8101 (ON LAT). This decision was upheld on Reconsideration: i.e., S.K. v. TTC Insurance, 2018 CanLII 83498 (ON LAT).