Amanda Howe v. The Commonwell Mutual Insurance Group, 2021 CanLII 120970

Citation: Howe v. The Commonwell Mutual Insurance Group, 2021 ONLAT 19-010824/AABS

Licence Appeal Tribunal File Number: 19-010824/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Amanda Howe

Applicant

and

The Commonwell Mutual Insurance Group

Respondent

DECISION

ADJUDICATOR:

Cezary Paluch

APPEARANCES:

For the Applicant:

Amanda Howe, Applicant

G. Joseph G. Falconeri, Counsel

Leigh Harrison, Counsel

Julien Bonniere, Counsel

For the Respondent:

Josh Webster, Representative

Linda Matthews, Counsel

Court Reporter:

Professional Court Reporters Inc.

HEARD by Videoconference:

April 12, 13, 14, 22, May 20, June 10, 2021, and written submissions

BACKGROUND

1On August 1, 2012, the applicant, AH, 15 years old at the time, was involved in an ATV accident at her family’s cottage when she was riding on the back of an ATV which lost control on a dirt road and collided with a tree (“the accident”). She applied for and received benefits under the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the ''Schedule'')¹ from the respondent, The Commonwell Mutual Insurance Group (the “Commonwell”).

2The applicant applied to the Commonwell for a determination that her accident-related injuries resulted in an impairment that met the statutory threshold for a “catastrophic impairment” as defined in the Schedule. Commonwell denied her application. It maintained that the applicant did not sustain a “catastrophic impairment” as a result of this accident.

3The parties participated in several case conferences but were unable to come to a resolution and the matter proceeded to a video hearing.

ISSUES

4The main issue in this hearing is whether the applicant suffered a “catastrophic impairment” that results in a class 4 marked impairment or class 5 extreme impairment due to mental or behaviour disorder in the domain of Adaptation.

5The only other issues are whether the respondent is liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant and interest on any overdue payment of benefits.

RESULT

6I find that the applicant has failed to satisfy the onus of proving that she sustained a catastrophic impairment as a result of the accident. The applicant has not demonstrated that her impairments were caused but for the accident. Nor has she proved that her level of function is compatible with a finding that she has a “marked” impairment in the area of Adaption.

7The applicant is also not entitled to an award or interest as no benefits are owing.

LAW and ANALYSIS

Catastrophic impairment

8Definition of “Catastrophic Impairment”:²

(1.2)(g) 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.

9The Schedule requires that medical professional’s rate impairment using the criteria and methods set out in Chapter 14 of the Guides, entitled Mental and Behavioural Disorders. Using this chapter, assessors look at four categories or areas of functioning to derive their ratings:

1. activities of daily living;

2. social functioning;

3. concentration, pace, and persistence; and

4. adaptation.

10The Guides do not use percentages for estimating mental/behavioural impairments in the same way that physical impairments are assessed. Rather, impairments are classified according to how seriously they affect a person’s useful daily functioning in these four areas of functioning, using word descriptors found in Chapter 14 on a five-category scale that ranges from no impairment (Class 1) to extreme impairment (Class 5).³

11The burden of proof rests with the applicant. She must prove on the balance of probabilities that, as a result of the accident, she sustained a “catastrophic impairment” as defined in clause 2(1.2)(g) of the Schedule. Throughout my consideration of the evidence, causation is a major factor in this case that I must keep in mind.

12Finally, it is well-established jurisprudence that one marked impairment of a single area or aspect of functioning is enough to designate a person as catastrophically impaired under the Schedule.⁴ Indeed, the parties agree that a single “marked” impairment is sufficient under Criterion 8 based on the applicable version of the Schedule in effect at the time of the accident in this case.⁵

13The applicant relies on the opinion of Dr. M. Keightley, psychologist, who rated the applicant at a Class 3 (moderate) in three areas of functioning and assessed the applicant as a Class 4 (marked) in adaption. Dr. Keightley’s report dated January 16, 2019 formed part of the applicant’s multi-disciplinary catastrophic determination evaluation by Omega Medical dated February 26, 2019.

14In reply, the respondent relies on the opinion of Dr. S. Ali, psychiatrist, who in 2017 rated the applicant as a Class 2 (mild) impairment in activities of daily living; a Class 1 (none) impairment in social functioning; a class 1 (none) impairment in concentration, persistence, and pace; and a class 2 (mild) impairment in adaptation. As well, in 2019, Dr. Ali again assessed the applicant for catastrophic impairment. This time instead of assigning the impairments that were attributable to the accident, she simply assigned impairment ratings based on the applicant’s holistic level of function, regardless of cause. On that basis, she assigned a class 3 “moderate” impairment in activities of daily living; a class 3 “moderate” impairment in social functioning; a class 3 “moderate” impairment in concentration, persistence, and pace; and a class 3 “moderate” impairment in adaptation. However, in each case, she opined that the impairments were not attributable to the accident, but to the applicant’s pre-existing issues.

15While the parties disagree on the effect of causation on the impairment ratings, the only domain in dispute between the two catastrophic assessors is in the area of Adaptation. Neither of the experts concluded that the applicant suffered at a Class 5 (extreme impairment) or Class 4 in any of the other three domains. Therefore, the key issue is whether the applicant’s functioning in the domain of Adaptation can be described as “marked” (Dr. Keightley) or “moderate” as a result of the accident (Dr. Ali’s 2019 assessment using holistic level) or “mild” (Dr. Ali’s 2017 assessment).

Positions of each party

The applicant

16The applicant submits in the years since the accident the applicant has received depression-related diagnoses from experts on both sides, with a number of other experts also diagnosing anxiety and PTSD-related disorders. To date, the applicant submits, not a single expert for either the applicant or the respondent has found that she has no mental/behavioural disorders. The applicant also argues that her diagnoses indicate that since the accident she has had emotional difficulties in coping with her psychological symptoms, in particular those related to depression and anxiety. As a result, she submits that she has a marked impairment in at least one of the four domains and ought to be deemed catastrophically impairment.

The respondent

17The Commonwell submits that the applicant sustained soft tissue injuries in the accident including significant bruising and swelling of her left hip requiring lengthy wound care, but the accident has not caused the applicant’s current intellectual or emotional impairments. They submit that the applicant had an extensive pre-accident history of developmental issues, severe learning disability, pervasive development disorder or mild Asperger’s, special needs in school, and psychological concerns including depression, anxiety, and social withdrawal. It also argues that the applicant did not sustain a catastrophic impairment as a result of the subject accident.

Findings on catastrophic impairment

18Overall, for the reasons that follow, I find that the applicant did not suffer a marked impairment in Adaption as a result of the accident. I prefer the evidence of Dr. Ali over that of Dr. Keightley for two main reasons. The first is that I find Dr. Ali’s medical reports and her testimony to be more comprehensive and convincing and corresponded more closely to the word descriptors for this category in the Guides: “impairment levels are compatible with most useful functioning” and not that “impairment levels significant exceeded useful function.”

19Second, the reports of Dr. Ali utilized the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), a well-accepted industry standard for diagnosing mental disorders including Autism Spectrum Disorder. She considered the applicant’s extensive pre-accident medical history whereas I found that Dr. Keightley’s analysis minimized the applicant’s pre-accident history of developmental delay, social difficulties, anxiety, depression and learning disability.

20Therefore, from my review of the medical evidence, I also conclude that the applicant suffered uncomplicated soft tissue injuries in the accident and the source of her current psychological condition is related to pervasive development disorder or mild Asperger’s as well as other psychological issues that pre-dated the accident dating back to her childhood. I now turn to address causation and the “but for test”.

Causation

21Subsection 2(1) of the Schedule defines “accident” to mean “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device”.

22While it is not disputed that the applicant has ongoing psychological impairments, on the evidence, I am unable to conclude on a balance of probabilities that she has satisfied the causation test to prove that, but for the accident, she would not have suffered the pervasive development disorder, depression, anxiety, memory problems and other behavioral concerns that has resulted in her ongoing psychological impairments.

23The Divisional Court has confirmed that the “but for” test is the correct test to be used when determining causation in accident benefits cases.⁶ Under the “but for” test, the accident need not be the sole cause nor the primary cause; however, it must have been necessary to bring about the injury.⁷ The applicant bears the burden of proving on a balance of probabilities that the accident was a necessary cause of her psychological impairments.

24The Commonwell submits that the applicant’s current impairments were not caused by the accident, but simply reflect her pre-accident trajectory. In contrast, the applicant argues that the respondent’s position is wrong because it is predicated entirely on the presumption of pre-existing autism, a diagnosis that was never made prior to the accident, and second, her post-accident diagnosis of autism is not well-reasoned and not supported by the evidence.

25Ultimately, causation is a question for the Tribunal, taking into account the totality of the evidence. In order to do this, the starting point in resolving causation is to examine the applicant’s condition before and after the accident.

Relevant Pre-Accident Medical History

26From a very young age, the applicant has an extensive, well-documented pre-accident history of developmental issues, a learning disability, pervasive development disorder or mild Asperger’s, special needs in school, ADHD, behavioral outbursts, and psychological concerns including depression, anxiety, and social withdrawal.

27As early as three years old, the records of Dr. Kevin Lee, pediatrician, at the Markham Children’s Medical Centre show that the applicant had a history of developmental delays including delayed speech, delayed walking, and staring spells. The note of January 14, 2005 also indicates obesity. She was also referred to Dr. Joseph Telch at a clinical nutrition center for diet control. At five years old and one month, the applicant was also referred to occupational therapy with diagnosis of developmental speech or language disorder and mild hypotonia. She was assessed on three occasions on May 28, June 18, and July 12, 2002 and noted that she was having self-esteem and self-confidence issues. Her visual perceptual and motor coordination skills were noted as below average and she was referred to family support services regarding her self-esteem issues.⁸

28On August 29, 2005 (at this point the applicant was entering grade 3 and was seven years old), the applicant was assessed by a school psychologist, Dr. Angela Fountain, relating to her parents’ concerns about her behaviour and emotional regulation including concerns with social difficulties, conflict and fighting with sisters, cruelty to animals, general unhappiness most every day, problems with personal care and independently following through on activities of daily living, and significant problems reading and writing, mathematics.

29The detailed cognitive testing conducted by Dr. Fountain showed clear evidence of reading, writing and mathematics learning disorders that were related to symbol decoding, remembering, performing mechanical operation on letters and numbers and poor perceptual organization. Already in 2005, Dr. Fountain wrote that the applicant’s “difficulties have been long standing with respect to questions about atypical development in the areas of speech, motor abilities and emotional control.” As a result, Dr. Fountain diagnosed the applicant with Major Depressive Disorder, Chronic and an overall GAF (Global Assessment of Functioning) of 60 using the DSM-4 and recommended child psychotherapy and that she be identified as a ‘special needs student.”⁹ Dr. Ali in her testimony explained that the significance of a GAF score is to understand a person’s functioning as affected by a mental health condition based on a scale of zero to 100 with 60 being in the upper end of moderate.

30A remedial update report dated January 31, 2007 by Dr. Fountain indicated that the applicant started a French program in September 2006 but experienced signs of emotional stress and was also struggling at home more than usual and has some complications with a scheduled surgery.¹⁰

31Following this report, the applicant was formally identified as a student with special needs in elementary school. As a result, she was supported by Individualized Education Programs (IEPs) beginning in the second grade. She has had IEPs and accommodations in place throughout her entire school career thereafter. Her grade 9 IEP, in the school year preceding the accident, shows essentially the same impairments and accommodations as previous years for which IEPs have been produced including extra time on assessments, strategic seating, rewording/rephrasing of information, and personal laptop with assistive technology. The applicant continued to have IEPs in grades 10-12 with very similar accommodations as prior to the accident such a speech software, visual cueing, and use of personal use of laptop.

32The grade school Team Meeting Reports from November 5, 2007 (grade 5), May 7, 2008 (grade 5), September 17, 2008 (grade 6), and September 17, 2009 (grade 7), indicate that a psychological associate was present during these meetings with the applicant’s mother, principal, homeroom teacher and a program support teacher to address the applicant’s special needs and accommodations. In particular, the report of May 7, 2008 indicates that the group meeting was organized on that day to seek a signed consent for a psychological assessment and concerns were noted regarding developing social connections.¹¹ The School Team Meeting Report dated October 14, 2010 from a meeting that included the applicant’s classroom teacher, vice-principal, support teacher and the applicant’s mother stated that applicant was diagnosed with “Learning Disorders in the areas of Reading, Written Expressions, Mathematics in 2008, self-esteem issues.”¹² On the school records alone, I simply cannot agree with the applicant’s submissions that her school records make no mention of even a possible diagnosis of a psychological impairment.

33The notes from Lakeridge Health also confirm that the applicant also had sleep apnea as a child and experienced developmental delay in terms of her function ability and that she has had violent outburst from when she was young, and she experienced stressors regarding her family issues.¹³

34Finally, there are several treatment plans (OCF-18s) identifying existing psychological conditions. As one example, the treatment plan dated July 3, 2014 completed by E. Radovini, OT lists past medical history including depression, learning disability, mild hypotonia and language disorder that were identified between 2007 and 2008. Under barriers to recovery, this OCF-18 also indicated pre-existing family dynamics.¹⁴

Pervasive Development Disorder or mild Asperger’s

35There are also several pre-accident and post-accident records that reflect that the applicant was diagnosed with, or at least suspected to have Asperger’s or Pervasive Development Disorder prior to the accident (now coded as Autism Spectrum Disorder in DSM-5). This is lifetime developmental condition that develops in childhood. Under the DSM-4 (used prior to 2013) both Autism and Asperger’s fell under the umbrella of Pervasive Development Disorder (PDD).

36Dr. Bugdahn was the applicant’s family physician who started seeing the applicant in November 2009 (about 2 ½ years before the accident when the applicant was 12 years old) until about March 2014 (when the doctor retired). Dr. Bugdahn saw the applicant in September 2009, May 2010, January 11th, 2011, and April 20, 2011 (4 times before the accident). A Cumulative Patient Profile dated November 3, 2009 listed as Ongoing Health Condition as “Borderline Asperger’s”.¹⁵ Her note of May 27, 2011 indicates the applicant was 186.5 pounds and about 5’5 in height which Dr. Bugdahn characterized as obese (high on the BMI).

37After the accident, a referral regarding possible concussion dated September 5, 2012 refers to “15 yo [female] w Asperger’s”. Another referral to Ontario Shores for mental health services notes "Patient has Asperger's and may not answer the phone". Under the heading ‘Diagnosis’ Dr. Bugdahn wrote: “Major depression with psychotic features and Asperger's." Under the heading “Reasons for referral” Dr. Bugdahn checked off “cognitive impairment” and wrote “Asperger’s”.¹⁶

38Yet another referral letter which appears to be dated May 21, 2013 is telling and says: "This young woman saw me May 17, 2013. She has Asperger's, is depressed, anxious, having suicidal thoughts but no plans. She refuses to have anyone involved from her family….not a good relationship with her mother. Got along well with her father in the past but now she feels that he avoids talking to her about this….she's not allowed to answer her phone..."¹⁷ [emphasis added]

39Dr. Bugdahn testified at hearing and stated that the applicant “apparently had been diagnosed with a borderline Asperger’s” by a child psychologist and that this information came from the applicant’s mother who was present during the initial appointment. Dr. Bugdahn also testified that there was reference to anxiety and Pervasive Development Disorder (PDD). She confirmed that the notation “PDD” referred to Pervasive Development Disorder, which was a related diagnosis. During cross examination, Dr. Bugdahn also agreed that part of the diagnoses in PDD in children includes issues with developmental delays, socialization, and communication skills. Dr. Bugdahn also acknowledged that prior to the accident the applicant had some developmental delays which she described as a “learning disability.” As the applicant’s treating family doctor, she was able to diagnose autism.

40In October 2013, an attendance at Lakeridge Health notes past mental history and that in grade 6 she was assessed by a school psychologist and diagnosed with “LDs and Borderline Asperger’s” and references significant developmental delays.¹⁸ Likewise, the medical records of Dr. Y. Patel of Algonquin Health Services in 2017 also indicate that the applicant reported that she was diagnosed with depression, Asperger’s, and ADHD in grade 2, although she was not told at the time.¹⁹ The note of February 9, 2017 states “was dx.ed with depression and anxiety when young”.²⁰ Another note of October 13, 2017, references a previous diagnosis of Asperger’s and ADHD.²¹

41In September 2017, Dr. Patel referred the applicant for a psychiatric assessment, which was completed by Dr. G. Beck. Dr. Beck diagnoses autism spectrum disorder by history and anxiety disorder and states that the applicant has a history of depression, attention deficit hyperactivity disorder.²²

42The Rehabilitation Consultation report dated May 28, 2018 from the Ottawa Hospital under past medical history section indicates Asperger’s, ADHD, anxiety, depressions, sleep disorder, learning disability.²³

43The applicant and her mother have also both repeatedly acknowledged pre-accident history of Asperger’s. For example, in May 2017, the applicant reported to Dr. Ali that prior to the accident she had seen a child psychologist and was diagnosed with Asperger’s syndrome, ADHD and depression and that she never tried on any medications as she followed mainly behavioral strategies and her teacher’s directions.²⁴ This is consistent with the Omega Medical Associates report dated April 28, 2015 where the mother reported that prior to the accident the applicant had a learning disorder, attention deficit disorder and mild Asperger’s.

44Similarly, when the applicant’s parents met with Dr. A. Cancelliere, psychologist, in July 2014, and were asked about her attainment of developmental milestones, the mother reported to that everything was delayed, that the applicant was 16 months old before she took her first step and when she sat, she was always slumped, and her speech development was delayed. Further, her mother reported that the applicant’s siblings were all advanced in attaining developmental milestones, that the applicant had a seizure at 8 months of age, and she was also apparently often at the pediatrician’s office with a virus. Also, the mother reported that the applicant had very poor social skills when she was a child and is still limited in this regard. When asked about her daughter’s tween years and early adolescence, the mother reported that she was withdrawn and asocial, that her weight increased, and she became very lethargic. On one occasion a few days prior to the current assessment the applicant stated that she felt very sad all the time and she did not know why, and the mother stated that she did not know if this was MVA-related or a natural progression (a part of her growing up).²⁵

45I noted that the mother, who appears to have specific knowledge of the applicant’s pre-accident medical condition including autism, was not called to testify at the hearing. Indeed, the documentary evidence shows that the mother was present at least during the initial meeting with Dr. Bugdahn when the diagnoses of Asperger’s was discussed and at the meeting with Dr. A. Cancelliere. To her credit, from the correspondence and many emails, the mother appears to have been deeply involved with the different health professionals in scheduling appointments including discussing costs of treatment and trying to assist her daughter before and after the accident.²⁶ The respondent asks that I draw an adverse inference in this respect. I note that the mother was listed as a witness in two Case Conference Orders dated July 13, 2018 and May 22, 2020. In any event, I am not prepared to draw an adverse inference that as there may be an explanation why the mother did not testify and that the respondent was free to summons her as well.

46I could not reconcile how the applicant somewhat drastically changes her story during the second 2019 assessment with Dr. Ali and reports that she was never diagnosed with ADHD, and this was merely a possibility²⁷ or during her testimony that she was not aware of her learning disabilities and diagnoses in elementary school. Certainly, it would seem the applicant should have been aware of at least some the diagnoses contained in all of the above-mentioned medical records. Perhaps, it may be that the applicant did not know everything about her learning disabilities and diagnoses. Even when she met with Dr. Beck in September 2017, she is advised to look up the diagnosis of autism spectrum disorder and determine and see which of her symptoms of anxiety seem to match. However, in any event, the medical records speak for themselves, and I did not disregard the applicant’s testimony but, when faced with inconsistent evidence between the applicant’s testimony and the documentary evidence, I preferred the documentary evidence.

47I also could not reconcile how the applicant’s father testified that his daughter had never been formally diagnosed with Asperger’s or autism or that he was not aware of her long-standing behavioural issues. Much of the applicant’s father’s evidence regarding his daughter’s pre-accident condition is contradicted by the documentary evidence regarding the applicant’s development, some of which he himself completed. For example, he completed a “Family/Friend Form” dated January 16, 2019 for Omega as part of their second catastrophic impairment assessment. On that form, in his own handwriting he acknowledged that prior to the accident his daughter “had been unofficially diagnosed with mild Asperger’s…”.²⁸

48Another form for Omega dated April 28, 2015 labelled “Significant Other Questions” asked the question of whether the applicant was having any emotional or cognitive difficulties prior to the accident (question # 17), to which the applicant’s father answered: “Yes. [A.H.] was diagnosed with minor Asperger’s and weakness in muscle control…” [emphasis added].²⁹ In my view, both of these documents, which were completed several years apart, suggest that the applicant’s father was more aware of the applicant’s pre-accident impairments than he was willing to admit at the hearing. As a result, I preferred the documentary evidence over the evidence that the applicant’s father provided at the hearing and did not put a lot of weight on the applicant’s father’s testimony.

49Dr. Ali, psychiatrist, in her report dated September 17, 2019, did diagnose the applicant with Asperger’s Disorder which is now coded as Autism Spectrum Disorder using DSM-5 with accompanying intellectual impairment. However, with respect to the causation, she concluded that based on the applicant’s extensive pre-accident notes and medical history, she cannot say that “but for” the subject accident the applicant would not have had the same educational and employment prospects that she has at the current time, and she did not find any evidence of a persisting accident-related psychiatric diagnosis.

50Dr. Ali explained during her testimony that under the DSM-4, there were a variety of diagnoses that have been re-grouped in the DSM-5 as Autism Spectrum Disorder (ASD). Dr. Ali also explained that the standard for diagnosis of ASD under the DSM-5 is a clinical assessment, using a clinical interview and the DSM-5. She explained that each of Autism and Asperger’s had a number of criteria that had to be met to confirm a diagnosis. She also explained that ASD includes difficulties with social interactions and transitions, and these are symptoms that the applicant has been dealing with her entire life.

51During her testimony, Dr. Ali explained that before the accident the applicant had this diagnosis of what would now be called autism spectrum disorder and she had difficulty fitting in, making friends, and being socially engaged. This was a neurodevelopmental disorder and a big category in DSM-5, under which there are different types, one of which is autism spectrum disorder that features mainly social deficits and learning disorders which the applicant was documented to have.

52The applicant submits that the applicant’s records contain no diagnosis of Asperger’s or Pervasive Developmental Disorder. On the medical evidence, which I find to be conclusive despite applicant’s submissions otherwise, I find this argument to be unpersuasive for a number of reasons. First, Dr. Ali in her September 17, 2019 did make a diagnosis of Autism Spectrum Disorder, with accompanying intellectual impairment and chronic depression. Second, as described above, autism spectrum disorder and Asperger’s syndrome have been mentioned in several pre-and post-accident medical reports. As a result, I do not find that there has been no diagnosis of Asperger’s or Pervasive Developmental Disorder.

53For completion, while I recognize that there are other medical opinions from other assessors that diagnose psychological impairments stemming from the accident and I have no doubt that the accident likely had some effect initially, which accounts for the possible accident-related diagnoses of exacerbation of pre-existing depression, anxiety, and PTSD. She has received treatment which has been mostly helpful. However, I accept Dr. Ali’s opinion that those accident-related diagnoses, now almost ten years post-accident, have mostly resolved.³⁰

54Therefore, as far as causation is concerned (putting aside the parties’ disagreement about the appropriate rating in Adaption), the respondent’s IE assessor concluded that the applicant did suffer an impairment as result of the accident. I also note that the respondent admitted that the applicant suffered some form of impairment as a result of the accident because they paid her benefits up to the maximum allowable amount on non-catastrophic limits.³¹ However, any payment of benefits in a previous period by the respondent are irrelevant to my determination of catastrophic impairment, as an insurer can be wrong about an approval (just as they can be wrong about a denial).

Post-Accident Medical History

55The records from Kingston General Hospital reveal that the applicant presented at emergency in the evening on August 1, 2012 following an ATV accident. Triage notes indicated injury to left arm, legs, and left hip. Questionable loss of consciousness was noted with no associated symptoms. She was noted to be “alert, oriented X 3” and with a GCS of 15. She was fuzzy on details but had memories before and after the accident. She had a 1.2 cm cut on her left eyebrow. The ER Record from Dr. Bernstein indicated no loss of consciousness and that the applicant was alert and diagnosed “ATV Trauma”.³² She was kept overnight and released the next day. According to the Discharge Reports dated August 2, 2012,³³ she was diagnosed with a “left hip soft tissue injury.” X-rays of her pelvis, hips, chest, and left femur were obtained and showed no fractures. A laceration to her left eyebrow was sutured. There was no indication in the ER records of any contemporaneous diagnosis of concussion or traumatic brain injury. An MRI of her head completed at Markham Stouffville Hospital on September 12, 2012 was normal.³⁴

56This accident was not reported to the police at the time of the incident and no police report was ever issued, although it appears the applicant’s father attempted to report it several weeks after the accident and was told a formal report would not be issued due to time lapse and location as it was on private property.³⁵

57The only physical injury that remained for some time was the applicant’s left thigh which required care for a period of around 9 months. Indeed, the undated pictures of the injury provided shows a significant swelling to the left tight.³⁶ However, as of January 2013, the wound was “almost healed”. The email dated January 18, 2013 from the applicant’s mother to A. Hughes, claims specialist of respondent, states that “the vac therapy worked well, and her leg is very close to being healed.”³⁷ In August 2013, the wound was looking better and there was only scarring remaining with no muscle herniation or fluid collection. The applicant testified that she was playing competitive hockey again within a few months of the accident and continued to play until she was 18. This was consistent with Dr. Urovitz’s more recent orthopedic report dated June 4, 2019 that concluded, from an orthopedic perspective, that that as a result of the index accident, the applicant sustained soft tissue injuries predominantly to the left hip and left thigh with secondary hematoma.³⁸ In December 2015, E. Radavini, OT, who was helping the applicant with her physiotherapy needs was closing her file.

58As well, both Dr. Ali and Dr. Tuff opined that the applicant sustained at most a mild concussion that would have resolved in the months following the accident, and certainly by 2019 when catastrophic impairment assessments were conducted. Neither doctor found evidence of ongoing cognitive impairments that could be attributed to the accident.

The “but for” test

59It is a common theme in the case law that the “but for” test does not require that the accident be the only contributing factor to the applicant’s condition. There can be other contributing factors and the effect can be cumulative but if both contribute to the applicant’s injuries then the “but for” test is met.

60Here, I find that the accident was not the main cause of bringing about the applicant’s psychological impairments or injuries. This finding is based on my conclusion that the applicant’s developmental issues, severe learning disability, pervasive development disorder or mild Asperger’s, special needs in school, memory problems, weight challenges, and psychological concerns including depression, anxiety and social withdrawal began well prior to the accident and are well documented in the records. The applicant had clear difficulties with social interactions and transitions prior to the accident and these are symptoms that the applicant has been dealing with her entire life. The applicant also had memory problems at a young age and did not seem to consistently know her alphabet. Dr. Ali described this as a significant academic deficit in a child who is seven years old.³⁹

61There was also evidence of history of developmental delays, afebrile seizure at age 9 months and socio-emotional and behavioural regulation issues pre-accident. The applicant’s best friend also passed of cancer in 2014 when she was 17 years old which was a significant setback for her. The evidence was that this also impacted the applicant’s mental state. There was evidence of pre-existing family dynamic challenges. In her childhood, she had asthma and a seizure. She also had a left knee popping problem in 2011. There is also some evidence that she was also involved in another car accident after the subject accident when she was rear ended at a stop light, but I did not have a lot of information on this additional accident.

62As well, the timing and progression of her injuries started when the applicant was very young, approximately a decade before the accident, and continued unabated, and does not support a direct link to the accident. The “but for” test is not met because the accident was not a factual cause of her injuries. Put another way, if the “but for” test was met then the applicant’s injuries would not have occurred regardless of the accident in question. I cannot say that. Respectfully, there is a myriad of other causes of the applicant’s psychological injuries.

63Therefore, I am satisfied that on a balance of probabilities the applicant’s psychological impairments were not caused by the motor vehicle accident. In other words, but for the motor vehicle accident, she would have still suffered the impairments which form the basis for her catastrophic claim. I simply do not find that the accident was necessary to bring about her injuries.

64The applicant is not catastrophically impaired as she has not demonstrated that his impairments were caused but for the accident. For completion, if I am wrong with respect to my causation analysis, I also assess the only domain in dispute being the area of adaption.

The Four Spheres of Function

65Dr. Keighley is the psychologist who assessed the applicant as part of Omega’s CAT assessment in 2019. As stated previously, Dr. Keighley rated the applicant at a Class 4 (marked) in Adaption only.

66Dr. Ali assessed the applicant on behalf of the insurer and prepared two reports in respect of catastrophic impairment. Initially, Dr. Ali saw the applicant in 2017 and rated her as a class 2 (mild) impairment in adaptation. Later, in 2019, Dr. Ali assessed the applicant again for catastrophic impairment rating her as class 3 (moderate) impairment in Adaptation. However, this time, instead of assigning the impairments that were attributable to the accident, she simply assigned impairment ratings based on the applicant’s holistic level of function, regardless of cause.

67Since neither of the parties’ medical experts assessed the applicant as a Class 4 or 5 in any of the other three categories (Activities of Daily Living, Social Functioning and Concentration, Persistence, Pace), I have nothing further to add to these categories and address the one area of functioning that is in dispute.

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

68This category refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.

69I prefer the class 2 (mild) impairment in adaptation rating assigned by Dr. Ali to Dr. Keightley’s class 4 (marked) rating for this domain because I found it to be more impartial, comprehensive, and consistent with the preponderance of the medical and non-medical evidence as a whole. In my view, it corresponded more accurately to the word descriptors for this category in the Guides: “impairment levels are compatible with most useful functioning.”

70The evidence demonstrates that following the accident, the applicant’s accommodations at school remained essentially the same. She completed high school, continued to play competitive hockey, attended a work placement, and completed college. Although the applicant switched from academic to applied streams in school after the accident, expert evidence establish that this change was consistent with her prior path.

71From the fall of 2015 through the spring of 2017, the applicant attended Algonquin College in Ottawa. She graduated from the General Arts and Science one-year program (GPA 3.16), then did Performing Arts for one semester (GPA 3.32) before switching to a one-year Event Management program that she also graduated (GPA 2.88). She worked as a volunteer for around a year and a half at a company called Ottawa Special Events where she gathered information from sports teams, wedding venues, and other places where they held events.

72In 2015, she completed a driver reintegration program and did a “terrific job.” The email dated September 17, 2015 from R. Brown, driver rehabilitation specialist indicates that he saw her last on May 19 and she was comfortable and confident driver and completed all approved sessions, save one. Mr. Brown also indicated that the applicant “is a terrific driver…and demonstrated good decision making in busy/complex traffic…”⁴⁰

73In 2019, the undisputed evidence was that the applicant was living alone in Ottawa and doing a work placement on commission with her professor. She was also taking classes, doing homework, and making her own meals. She had her own car and was driving herself to school. She was doing assignments and presentations on her own. At the hearing, the applicant testified that she is now 24 and lives in Kingston by herself and is able to drive and do her groceries. She agreed that she was able to finish high school after the accident, that she went to concerts in the 14 months post-accident, and that she resumed playing hockey in the very first season post-accident. She also got her driver’s license between college years which shows an ability to concentrate and complete tasks. There was information that she had resumed riding an ATV at the parent’s cottage. In July 2013, when the applicant’s mother was asked by Dr. Cancelliere about her daughter’s independence, she reported that there had been no change in her daughter’s level of independence.⁴¹

74This level of function and activities are simply not compatible with finding that she has a “marked” impairment. Although the applicant switched from academic to applied streams in school after the accident, expert evidence and common sense establish that this change was consistent with her prior trajectory.

75I have no doubt that the accident likely had some effect initially, which accounts for the possible accident-related diagnoses of exacerbation of pre-existing depression, anxiety, and PTSD. However, those accident-related diagnoses had mostly resolved.

76Overall, I also prefer Dr. Ali’s evidence over that of Dr. Keightley because Dr. Ali utilized the DSM-5 diagnostic criteria to diagnose Autism Spectrum Disorder (or Asperger’s as it was prior). The DSM-5 is the handbook created by a consensus of expert psychiatrist and used widely by psychiatrists to diagnose all psychiatric disorders (prior to 2013 it was the DSM-4). In contrast, Dr. Keightley utilized the Autism Diagnostic Observation Schedule (ADOS), a test designed for use by psychologists. In her evidence, Dr. Keightley emphasized what she considered the “gold standard” in autism spectrum disorder (ASD) diagnosis and criticized Dr. Ali for failing to use that test.

77However, based on the expert evidence before me, I accept that the standard for diagnosing all psychiatric disorders by medical professionals is a clinical assessment using a clinical interview and the DSM-5 which is the newest edition which Dr. Ali did use. In cross examination, Dr. Ali explained that the question that are asked in any psychiatry clinical assessment are standardized which she completed as part of the assessment of the applicant.

78Each of Autism and Asperger’s had a number of criteria that had to be met to confirm a diagnosis. Specific testing (as was done by Dr. Dr. Keightley using the ADOS) is not part of diagnosis under the DSM-5. Simply put, the ADOS is not used under the DSM-5 to diagnose ASD. Indeed, when Dr. Ali was questioned about what is the authority for saying that the standard for diagnosing autism is the DSM-5 standard, she replied that it was her training, textbooks, and literature while specific testing (i.e., ADOS) is used only as a tool by a psychologist to access services/programs to show that a patient has certain cut-off values.

79I also noted that Dr. Keightley first formed the opinion that the applicant had a “marked” impairment in Adaptation without being provided with the applicant’s pre-accident school records and reports from Dr. Fountain and Dr. Dougan. In my view these records, including Dr. Fountain’s August 2005 report, were critically important as far as the applicant’s Major Depressive Diagnosis and challenges she was facing years ago when the applicant was only in grade 3. After being provided with those records, her opinion did not change, however. Dr. Keightley was also not aware that Dr. Bugdahn had indicated PDD in her medical notes prior to the accident. For all of these reasons I put less weight on Dr. Keightley’s opinion.

80In any case, the evidence also does not establish the applicant’s impairments rise to the level of a “marked” impairment, regardless of cause.

Interest

81Since I found no benefits payable, the applicant is not entitled to any interest pursuant to section 51 of the Schedule.

Award

82A special award is tied directly to the benefits in dispute in a particular proceeding. The regulation only grants the Tribunal jurisdiction to grant the award “If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments.” Since, there are no specific treatment plans or other benefits in dispute, I cannot make any finding that the respondent unreasonably withheld or delayed payments or calculate quantum of any award on these facts.

CONCLUSION

83For the above reasons, I conclude on the balance of probabilities that the severity of the applicant’s level of impairment with respect to activities of daily living, social functioning, concentration, and adaption as set out in the Guides does not constitute a catastrophic impairment pursuant to the Schedule.

84Therefore, I find that the applicant has not sustained a catastrophic impairment as a result of the accident, as defined in the Schedule.

85I also find that the applicant is not entitled to an award or interest, under the Schedule.

Footnotes

1. 1O. Reg 403/96.
2. 2The Schedule describes several independent categories of impairment each with their distinct criteria. The only relevant category in this case is s. 2(1.2)(g) or what the assessors refer to as Criterion 8.
3. 3See page 301 of the Guides for a Table setting out the rating for mental impairment in the four areas of functional limitation on a five-category scale that ranges from no impairment (Class 1) to extreme impairment (Class 5).
4. 4See Pastore v. Aviva Canada Inc., 2012 ONCA 642 and 16-003415/AABS v Allstate Insurance Company of Canada, 2018 CanLII 8071 (ON LAT).
5. 5Respondent’s Submissions, para. 79.
6. 6Sabadash v. State Farm Mutual Insurance Co., 2019 ONCJ 656, [2019] OJ No 788 (Div. Ct. February 15, 2019) (Sabadash).
7. 7Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181.
8. 8Occupational Therapy Initial Assessment Report of Kathy Sparrow, OT, Grandview Children’s Centre, July 16, 2002, Applicant’s Brief, pages 792-795.
9. 9Applicant’s Brief, page 1909.
10. 10Applicant’s Brief, page 1919.
11. 11Respondent’s Brief, page 957.
12. 12Respondent’s Brief, page 954.
13. 13Applicant’s Brief, pages 642, 643, 656.
14. 14Respondent’s brief, page 2701.
15. 15Dr. Chua and Dr. Bugdahn’s records.
16. 16Applicant’s Brief, page 1016.
17. 17Applicant’s Brief, page 954.
18. 18Applicant’s Brief, page 641.
19. 19Applicant’s brief, page 1537.
20. 20Applicant’s Brief, page 1517.
21. 21Applicant’s Brief, page 1535.
22. 22Respondent’s Brief, page 2322.
23. 23Applicant’s Brief, page 1563.
24. 24IE Report dated July 25, 2017, Respondent’s Brief page 1707.
25. 25Applicant’s Brief, page 969.
26. 26Respondent’s brief, page 423.
27. 27IE Report dated September 17, 2019, Respondent’s Brief page 2005.
28. 28Respondent’s Brief, pages 2660-2669 (page 6 of form).
29. 29Respondent’s Brief, page 2681.
30. 30Respondent’s Brief, page 1843.
31. 31Respondent’s submissions, para. 98.
32. 32KGH Emergency Department Record, Respondent’s Brief, page 2480.
33. 33The Discharge Report states that she presented to the ER on August 2, 2021.
34. 34Applicant’s Brief, page 864.
35. 35Respondent’s Brief, page 538.
36. 36Respondent’s Brief pages 2682-2683.
37. 37Respondent’s Brief, page 377.
38. 38Respondent’s Brief, page 1974.
39. 39Transcripts, June 10, 2021, page 27.
40. 40Respondent’s Brief, page 556-557.
41. 41Applicant’s Brief, page 969.