H.V. v. Certas Direct Insurance Company, 2021 CanLII 13006

Citation: H.V. vs. Certas Direct Insurance Company, 2021 ONLAT 18-008349/AABS

Released Date: 01/20/2021

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:

H.V.

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lori Marzinotto, Vice Chair

APPEARANCES:

For the Applicant:

[H.V.], Applicant

William Harding, Counsel

Brock Turville, Articling Student

Minnie Clare, Accident Benefits Clerk

For the Respondent:

Jonathan Schrieder, Counsel

Christina Vittorio, Claims Advisor

Selda Mlivic, Claims Advisor

Interpreter

Rocio Agraz Cosman (telephone - January 27, 2020)

Maria Trujillo (In-person - January 28, 2020)

Court Reporter:

Lillian Ibelegbu

Heard In-Person:

January 27, 28, 30, 31, February 3, 2020

OVERVIEW

1The applicant had been riding his bicycle when he was struck by a vehicle and injured on October 8, 2012 (the “Accident”). He applied for benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”),¹ and subsequently submitted an application dated August 7, 2017 to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to determine whether he sustained a catastrophic impairment.

ISSUE

2The issue to be decided in this hearing is as follows:

i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

RESULT

3I find that the applicant has not sustained a catastrophic impairment as a result of the Accident and therefore not entitled to the extended policy limits.

BACKGROUND & ANALYSIS

4The applicant submitted an Application for Determination of Catastrophic Impairment Form (“OCF-19”) dated June 6, 2016, to Certas Direct Insurance company, the respondent, alleging that he had sustained a catastrophic impairment (“CAT”) as a result of the Accident.²

5At the commencement of the hearing, the applicant confirmed that he was withdrawing the issue of whether he was catastrophically impaired based on the Whole Person Impairment (WPI) criteria³ and would be submitting that he was catastrophically impaired on the basis of a marked (class 4) impairment⁴ due to mental and behavioural disorders only.

6Specifically, the applicant submits that he has a marked impairment in the sphere of deterioration or decompensation in work or worklike settings due to a mental or behavioural disorder, which is commonly referred to as the sphere of “Adaptation”. The respondent submits that the applicant has a moderate impairment (Class 3) in Adaptation and therefore is not CAT.

7In order to fall within the definition of catastrophic impairment, as defined in s.3(2)(f) of the Schedule, the applicant must prove, on a balance of probabilities that he suffered an impairment as a result of the Accident which resulted in a class 4 (marked impairment) due to mental or behavioural disorder in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”).⁵

8Under the AMA Guides, there is a classification of impairments ranging from no impairment (Class 1) to extreme impairment (Class 5), all of which identify levels of functioning.⁶

9The AMA Guides use specific wording in describing the levels of impairment. Specifically, the AMA Guides describe a class 3 (Moderate) impairment levels as compatible with some, but not all useful functioning and Class 4 (Marked) impairment levels significantly impede useful functioning.

10The applicant bears the onus of proving, on the balance of probabilities that he has sustained a CAT impairment. Whether the applicant has sustained a CAT impairment is a legal test, not a medical test.⁷

11In this case, there are two differing expert opinions as to the applicant’s level of impairment in Adaptation: that of Dr. Becker, who concludes that the applicant has a marked impairment (class 4), and that of Dr. Jeffries, who finds that the applicant is moderately impaired (class 3).

12Based on the evidence presented, I find that the applicant’s impairments do not rise to the level of being “marked” within the Adaptation area or sphere of functioning.

13While the applicant’s pain was raised as a concern (mainly headaches), the majority of the hearing was centered on how the applicant’s mental and behavioural impairments affected his functioning.

14The facts and the medical evidence need to be closely examined. In this case, as in many instances, the facts and the medical evidence are at odds with each other. The applicant’s ability to function as informed by the AMA Guides is the focus for this hearing. The issue is the severity of the applicant’s impairment, and whether the severity points to either a class 3 or class 4 impairment.

Time Frame of Analysis

15The parties had differing opinions on the time period the Tribunal is to consider in determining whether the applicant sustained a CAT impairment. The applicant submits that the Tribunal must look at the time he made the CAT application. Despite this submission, the applicant repeatedly pointed to evidence in time periods pre- and post-CAT application. The respondent submits I must look at the period pre- and post-CAT application and not just at the time of the CAT application.

16I agree with the respondent. I cannot look at the applicant’s condition in a vacuum but need to look at it as a whole. Pre-accident functioning in comparison to post-accident functioning is required in the CAT determination analysis. How the applicant is functioning and how he is able to adapt in situations cannot be looked at in a snapshot period.

17This is supported by the relevant portions of the AMA Guides which state that a person’s level of functioning may vary over time and a proper evaluation of the level of functioning must take into account variations over time in order to determine severity. Evidence over a long period of time should be obtained.⁸ As stated in the AMA Guides, results of work evaluations can be significant sources of data concerning impairments affecting work capabilities.⁹

Competing Evidence – Dr. Becker (Marked Impairment)

18Dr. Becker assessed the applicant on April 11, 2016, which was three and a half years after the Accident. Dr. Becker reviewed the applicant’s pre-accident history, education, occupation, medical and psychological history. Dr. Becker also reviewed the applicant’s post-accident functioning, self-care and household activities, social and recreational activities, treatment and medical records as noted in her report¹⁰ from January 2, 2013 to January 6, 2016.

19Dr. Becker’s evidence was that she does not go into her assessment blindly and that there is a whole medical brief including treatments and/or assessments she reviews before she conducts her own examination.

20Dr. Becker indicated that she compares the applicant’s before and after accident function and tries to understand the applicant’s function specifically from the four perspectives in the AMA Guides.¹¹

21Dr. Becker indicated that she had initially determined that the applicant had a more moderate than marked impairment. However, after consulting with Ms. Baboulas, an Occupational Therapist, and looking at the information Ms. Baboulas obtained in her assessment, Dr. Becker decided that the applicant had a marked impairment in Adaptation and therefore the applicant was catastrophically impaired.

22Dr. Becker testified that the tasks Ms. Baboulas asked the applicant to perform in her assessment “were so real world” that this put the applicant over the edge for a marked impairment finding.

23At the time of the Baboulas assessment,¹² the applicant had been employed at a coffee shop for approximately six weeks. The applicant testified that the job was a challenge and that he had not worked in a coffee shop before. The applicant was employed at [coffee shop] from February or March 2016 until some time in late 2017¹³ and worked shifts of four-to-six hours per day, three-to-four days per week.¹⁴

24Ms. Baboulas reported that the applicant required encouragement to continue with the assessment, would give up on several occasions and was reportedly frustrated, irritable and annoyed at his reduced inability to complete the tasks. The applicant was noted to become stressed as the assessment continued and reported that he was “stressed from the first order” and told Ms. Baboulas, “I don’t want to do this.” Ms. Baboulas reported that the applicant’s output was minimal when stressors and demands were increased.¹⁵

25Ms. Baboulas conducted an assessment that lasted 2.5 hours, and included an interview and two simulated tasks: the barista task and the calendar task. Ms. Baboulas testified that the applicant conducted the barista task for an hour.

26From my reading of the Baboulas report, I found the simulated barista assessment was confusing. The applicant’s dining room table was set up with different size cups (small, medium, and large) and colour coded bands were to be used when preparing specific coffees, for example, three black bands were used for one shot of espresso,¹⁶ five orange bands for soy milk, two purple bands were for one shot of caramel. The applicant was provided a legend to follow during this task. The orders were verbally provided to the applicant by Ms. Baboulas throughout the activity.

27It is unclear whether the legend was provided in the Spanish language. An interpreter was used during the assessment as well as the hearing, but it is not clear if the interpreter was used during the simulated exercise.

28The applicant was asked to prepare “45 types of specialty coffees.”¹⁷ During examination in chief, Ms. Baboulas indicated that the applicant participated in the barista exercise for an hour. By my calculation, if he prepared the coffees continuously, that is a specialty coffee approximately every 1.33 minutes. When Ms. Baboulas was asked whether her simulated assessment was harder or easier than a real-life working situation, she responded that it would depend on the time of day and location. I did not find that there was anything to compare the simulated exercise to a real-life work situation, that is, there is no standard of comparison between the simulation and the real work-life situation.

29Of particular significance is the fact that on cross-examination, Ms. Baboulas indicated that there was no validity testing conducted.

30I disagree with Dr. Becker’s characterization of the Baboulas tasks as “so real world”. If the applicant’s performance in the tasks requested by Ms. Baboulas in the assessment were indicative of his ability to perform in his real employment setting, the applicant would not have been employed at his barista job for as long as he was.

31The results of the simulated exercise requested by Ms. Baboulas were poor. Of the 45 coffees the applicant was asked to prepare, 22 were incorrectly prepared, 12 were correctly prepared and 11 were missing. Of the 12 that were correctly prepared, three of them were initially prepared incorrectly.

32That means, in an hour, the applicant prepared nine correct coffees. It is simply not realistic that an individual who would perform so poorly would remain employed at the job for 1.5 years. The simulated test could not have been “so real world”.

33While the applicant did indicate that accommodations were made for him by his former employer, there is no corroborating information from his former employer on the nature of the accommodations or why they were needed. In addition, the applicant testified that his former employer did not know of his impairments from the accident. I do not have any employment records from the [coffee shop] to verify any accommodations. The applicant also did not call any of co-workers to give evidence on his work performance. I have only the applicant’s self-reported evidence that he struggled at the [coffee shop].

34I find the Baboulas assessment problematic. As stated previously, the applicant was working at a coffee shop at the time of the Baboulas assessment. In fact, the applicant had to attend a shift at the [coffee shop] on the day of the Baboulas assessment. I question why a recreation of work tasks was used rather than observing the applicant in his real work setting.

35Although Ms. Baboulas indicated that she was not given permission by the applicant to speak to his employer, I do not see that as a barrier to observing the applicant at his place of employment, a public coffee shop. Instead, Ms. Baboulas asked the applicant to participate in simulated barista activities, which, upon reading the report, appeared convoluted and not “real world.”

36I do not have any evidence as to how the applicant was performing at his job other than the applicant’s subjective comments that he performed much in the same manner at his job as he did during the assessment.

37I give the Baboulas assessment very little weight. When viewed against the fact that the applicant worked at the [coffee shop] for approximately 1.5 years, it is hard to believe that an employer would continue to employ an individual that, according to Ms. Baboulas, consistently threw up his hands and “gave up,” became frustrated and needed encouragement to continue doing the job and failed to prepare the majority of the coffee orders correctly or even at all.

38Additionally, Dr. Becker admitted in evidence that, as an employer, she would probably not keep the applicant employed.

39It is clear from the AMA Guides that the results of one assessment may not adequately describe a person’s ability to function in a sustained way.¹⁸

40Dr. Becker indicated that Adaptation is all about function and about how the individual is doing. In this case, the applicant had been and was working in jobs that he stayed in for sustained periods of time.

41Dr. Becker testified that the assessments test how well the applicant actually does and, in this case, the applicant withdrew from the test.

42The respondent suggested that the applicant’s performance at work is an everyday functional test and that the applicant, given his tax returns, has succeeded more than he has failed.

43The evidence at the hearing showed that the applicant was progressing in his employment, even succeeding in his employment, and is able to function at a level that does not bear out that he gives up and/or withdraws.

44I cannot ignore the applicant’s work history and how that informs my decision. The applicant has not withdrawn from employment but, in fact, has succeeded and progressed in his employment since the Accident and since applying for a CAT determination.

Upward Trajectory in Employment

45The applicant has been on an upward trajectory in employment since the Accident.

46After the Accident, the applicant began in volunteer positions, one of which was in a gift shop. He progressed to a part-time position, then to a full-time position and then promoted to assistant manager.

47Subsequent to his employment at the gift shop, the applicant held positions at [store 1], [coffee shop] and [store 2].

48At the end of 2017, the applicant began working at a hotel and worked there until May 2019 when he requested a medical leave.

49In July 2019, the applicant began working for [airline]. He completed the training and passed the required tests and, as of the date of the hearing, was working as a flight attendant and requested the minimum hours, which the applicant stated was seventy-five (75) hours per month.

50However, the applicant describes his employment experiences less optimistically.

51The applicant reported that the gift shop job was stressful and that he could not deal with it and could not cope. Despite this, the applicant progressed from being a volunteer, to working part-time then to working full time, working eight hours per day, five days per week,¹⁹ and was even promoted to assistant manager. The applicant’s success does not suggest or correspond to a marked impairment in Adaptation.

52The applicant indicated he was fired from the gift shop because of poor performance. Some reports indicate that he was laid off or “let go” but the applicant was not provided with a reason.²⁰ Dr. Watson’s report notes that the applicant indicated that he was not provided a reason for being “laid off” and that there were no negative appraisals.²¹ It is unclear whether he was laid off or fired as I do not have any supporting employment records.

53Despite the applicant’s negative description of his employment, there was employment evidence that suggested the applicant was fact doing well. The applicant started working at the [hotel] (the “Hotel”) on October 30, 2017.²² The applicant’s 90 day review from employment at the Hotel, dated February 2, 2018, indicated that his work “is accurate and extremely organized,” that he “is extremely reliable, has come in for shifts last minute, has never called off, he is never late…in fact shows up 20-30 minutes early for shifts, and adapts to change very well”.²³

Competing Evidence - Dr. Jeffries (Moderate Impairment)

54I place more weight on the report of Dr. Jeffries,²⁴ a psychiatrist.

55Dr. Jeffries found that the applicant did not exhibit anything near a marked impairment. Dr. Jeffries indicated that the applicant was on an upward trajectory and there was no collateral/corroborative information that the applicant was having difficulty and not doing well at work.

56Despite no corroborative information that the applicant was having difficulty at work, Dr. Jeffries accepted the applicant’s subjective evidence that he was having difficulty and that the barista job was fairly demanding, and rated the applicant as having a moderate impairment on the lower end of the scale.

57Dr. Jeffries opined that an individual who was able to keep employment for two plus years, as the applicant had at [gift shop] for example, would not be deemed CAT.

58Dr. Jeffries was critical of the Baboulas report and opined that the applicant could not be that severely impaired. He found that there were multiple descriptions of the applicant’s exaggeration in several reports from assessors. In Dr. Becker’s report, she noted that the applicant tended to portray himself in a negative light and that test results should be “interpreted with caution as they could overrepresent the extent and degree of significant test findings.”²⁵

59In addition, Dr. Becker indicated that the psychometric testing was not consistent with the applicant’s self-reports. The applicant had significantly more psychological symptomatology on the testing than she could clinically find.²⁶

60Dr. Jeffries testified that a number of reports indicated that the applicant exaggerated his condition, causing validity issues with the testing. Dr. Jeffries pointed to Ms. Hadassah Lebovic, occupational therapist, who had assessed the applicant in August 2016. In that report, Ms. Lebovic reported that the applicant scored 16 out of 30 on the Montreal Cognitive Assessment (“MoCA”), which indicates that the applicant is in the moderately impaired range for cognitive functioning.²⁷ Dr. Jeffries testified a score of 13/26 would indicate that the applicant had severe dementia. Dr. Jeffries indicated the applicant did not have severe dementia. He further indicated that a score of 16 would indicate he was not trying on that occasion and, if the applicant was really that impaired, he would not have been able to show up for the assessment, let alone work as a barista.

61Dr. Jeffries referenced Dr. Jovanovski’s report, which also indicated the applicant’s exaggeration. Dr. Jovanovski indicated that the results of the neuropsychological assessment were “uninterpretable due to validity issues….the presence of feigned or exaggerated cognitive dysfunction were inconsistent.”²⁸

62There is evidence that, by August 2015, the applicant had improved. Dr. Basile, a neurologist at Sunnybrook Hospital, had referred the applicant to Dr. Reznek, psychiatrist, who reported that “the applicant had much improved. His mood is noted as largely back to normal. His irritability was significantly reduced. His main problem is that of anxiety and decrease in his level of confidence.” Dr. Reznek further noted that the applicant’s post-concussional disorder was, at this point, largely in remission.²⁹

63By November 2015, Dr. Shammi, neuropsychologist, found that the applicant’s cognitive profile was largely stable and within normal limits but did note that the applicant’s most “prominent weaknesses are within the realms of attention and working memory.” However, Dr. Shammi noted that by the applicant’s own admission, he had recovered to “70%” of his pre-accident levels, was employed and able to manage his day to day functions.³⁰

64Dr. Davidson assessed (cognitive screen) the applicant on April 5, 2016 to provide an analysis of his cognitive impairments for ratings under criterion 7 of the AMA Guides, whole person impairment, in order to determine whether the completion of an OCF-19 was reasonable. Dr. Davidson concludes by finding that the applicant’s current cognitive impairments “likely relate to other factors, which at this time include emotional distress, pain, headache, other somatic symptoms and fatigue.” Dr. Davidson found, though, that it was reasonable to conclude that the accident materially contributed to the applicant’s cognitive impairment. Dr. Davison noted that in the less likely case that a traumatic brain injury was contributing to the applicant’s cognitive impairments, they would fall within the first tier of Table 2: “Impairment levels are compatible with most useful functioning.”³¹

65Dr. Watson noted that the applicant’s test engagement rated below anticipated levels. Dr. Watson noted that invalid findings across multiple validity measures prevents a diagnosis from being substantiated.³² Dr. Watson noted that the testing was completed with the assistance of an interpreter and it is widely recognized that linguistic and cultural factors can impact reliability and validity of psychological test measures.³³

66From a neuropsychological perspective, and given the multiple invalid findings across multiple measures, Dr. Watson could not find the applicant to be catastrophically impaired.

67Dr. Watson also noted that he was not the only assessor to get poor validity testing results. Both Dr. Jovanovski and Dr. Mandel received poor validity testing. Dr. Watson testified that had he written the same report today, he would have found the applicant’s performance as non-credible. Dr. Watson testified that the applicant failed more tests than the average malingerer or exaggerator.

68The applicant experienced suicidal ideation and thought about jumping in front of a subway but this was after his father passed away in 2014 and he denied any recent suicidal ideation.³⁴

69At the time of Dr. Watson’s assessment, the applicant identified his biggest problems as his headaches and his pain despite describing the frequency of headaches once or twice per month.³⁵

70The applicant’s reports of frequency of headaches was inconsistent. In Dr. Watson’s neurological assessment report dated August 31, 2016 (assessment date August 10, 2016), he notes that the applicant indicated that he has headaches once or twice a month on the left side of his head, noting that the pain occurs when he exerts himself. The applicant uses Tylenol to relieve the pain. In April 2016, the applicant had reported to Dr. Davidson that he has headaches once per week that last the entire day.³⁶

71The applicant reported to Dr. Watson that his concentration and memory had been adversely affected and identified issues with his short-term memory but stated that his cognition has improved with the passage of time.³⁷

72Overall, I find that the evidence does not support a finding that the applicant is catastrophically impaired. The applicant has not proven, on a balance of probabilities, that he has sustained a catastrophic impairment.

73The applicant is independent in his self-care, is a regular member of the workforce, shares responsibility for grocery shopping with his partner but can do so independently, continues to share laundry activities with his partner, continues to share responsibility for heavy cleaning activities although with some pain and typically sleeps for seven or eight hours although he still wakes up feeling unrested and typically naps for 1-2 hours a few times per week.³⁸ It is acknowledged that the applicant’s partner has taken over responsibility for banking and bill payments.³⁹

74The applicant has progressed in his employment since the accident. Although income is not determinative of a person’s level of functioning, neither can it be ignored. From 2014 to 2018, the applicant’s income has more than doubled.⁴⁰

75Although the applicant has some difficulties, he has learned coping mechanisms which have allowed him to progress in employment and functioning. It cannot be said that the applicant’s impairment level “significantly impedes useful functioning” in adaptation and therefore, the applicant is not catastrophically impaired.

CONCLUSION / ORDER

76For these reasons, I find that the applicant has not sustained a catastrophic impairment as a result of the Accident and therefore not entitled to extended policy limits.

Released: January 20, 2021

__________________________

Lori Marzinotto

Vice Chair

Footnotes

1. 1O.Reg. 34/10 – All references are to the version in the Consolidation period between July 1, 2011 – May 31, 2013.
2. 2An OCF-19 was not produced into evidence at the hearing. It is however referenced in Dr. Jeffries Psychiatry Examination Report, dated August 31, 2016, addressing catastrophic impairment. Exhibit #19, Dr. Jeffries Report at p.1831.
3. 3O.Reg. 34/10 s. 3(2)(e).
4. 4O.Reg. 34/10 s.3(2)(f).
5. 5Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993, at Ch.14.
6. 6AMA Guides, p.301.
7. 7Liu v. 1226071 Ontario (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at para.30.
8. 8AMA Guides, p.293
9. 9AMA Guides, p.293
10. 10Exhibit #16 Dr. Becker Report, p.677.
11. 11i) Activities of Daily Living; ii) Social Functioning; iii) Concentration; iv) Adaption.
12. 12Exhibit #16, Baboulas Assessment, Evaluation date April 12, 2016, p.692.
13. 13Approximately 1.5 years.
14. 14Exhibit #13, Dr. Becker report, p.678
15. 15Exhibit #16, Baboulas Report, pages 6,7 (Exhibit #16, Document Brief, pages 697,698)
16. 16It seems counterintuitive to use three bands to represent a single shot for one item (one shot of espresso) yet use two bands for one shot of another item (one shot of caramel).
17. 17Exhibit #16, Baboulas Report, page 7 (Exhibit #16, Document Brief, page 698)
18. 18AMA Guides, p.295
19. 19Exhibit #16, Dr. Becker report, p. 678.
20. 20Exhibit #16, Dr. Becker report, p.678; Dr. Davison report, Exhibit #16 p.671; Baboulas report Exhibit#16, p. 694; Dr. Watson report, Exhibit# 20 p.1854.
21. 21Exhibit #20, Dr. Watson report, p. 1854.
22. 22Exhibit #15, document brief, page 222
23. 23Exhibit #15, document brief, pages 224-228.
24. 24Exhibit #19, Dr. Jeffries Report (Document Brief Vol 6).
25. 25Dr. Becker Report, page 12, Exhibit #16, document brief, page 688.
26. 26Dr. Becker Report, page 13, Exhibit #16, document brief, page 689.
27. 27Ms. Lebovic Report, page 41, Exhibit #21, document brief, page 1909. Ms. Lebovic did not attend the hearing and although her report was entered as an exhibit, there was no opportunity for the applicant to cross-examine Ms. Lebovic on her report. I indicated during the hearing that if Ms. Lebovic did not attend, I would hear submissions from the parties on the weight I should give to the report. Admissibility of Ms. Lebovic’s report was not contested. The applicant submitted that the report should be given little weight. The respondent essentially agreed with that submission and indicated that it did not think her report was a very determinative piece of evidence on the issue the Tribunal is tasked with deciding and that it trusts the Tribunal will determine the weight to place on the report. I agree with the respondent that Ms. Lebovic’s report is not determinative of the issue upon which the Tribunal needs to decide and have referred to the report where applicable to the evidence in chief of Dr. Jeffries.
28. 28Ms. Lebovic Report, page 16, Exhibit #21, document brief, page 1884.
29. 29Exhibit #13, p.347.
30. 30Exhibit #9, p.354.
31. 31Exhibit #16, Dr. Davidson Report, p. 676.
32. 32Exhibit #20, Dr. Watson report, p. 1857.
33. 33Exhibit #20, Dr. Watson report, p.1858.
34. 34Exhibit #12, Dr. Davidson report, p.669.
35. 35Exhibit #20, Dr. Watson report, p.1853.
36. 36Exhibit #12, Dr. Davidson report, p.677.
37. 37Exhibit #20, Dr. Watson report, p. 1856.
38. 38Exhibit #12, Dr. Davidson report, p. 668.
39. 39Exhibit #16, Dr. Becker report, p.678.
40. 40Exhibit #4, Accountant’s Report dated February 28, 2019, p, 341.