Mary Kaloczi v. Wawanesa Mutual Insurance Company, 2022 CanLII 117089

Citation: Kaloczi v. Wawanesa Mutual Insurance Company, 2022 ONLAT 20-005672/AABS

Licence Appeal Tribunal File Number: 20-005672/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:

Mary Kaloczi

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Sandra Driesel

APPEARANCES:

For the Applicant:

Mary S. Kaloczi, Applicant

Mark Elkin, Counsel

Liana Hanna, Assistant

For the Respondent:

Alex Amigud, Adjuster

Jason Goodman, Counsel

Nicole A Dowling, Counsel

Court Reporter:

Michelle Gordon

HEARD by Videoconference

November 8 through November 19, 2021, and

By Way of Written Submission

REASONS FOR DECISION

BACKGROUND

1This proceeding arises out of a motor vehicle accident (“MVA”) that occurred on October 30, 2016. The applicant, Mrs. Mary Kaloczi, was a passenger in the middle rear seat of a Ford Excursion SUV (“vehicle”) driven by her husband. She was seated in between her two sons, aged 15 months old and 12 days old at the time. While stopped, two other automobiles were involved in an accident and hit the front of their vehicle. The applicant reached out to brace her sons, stretching her arms out, left and right, placing her hands on her sons to protect them. The airbags did not deploy. The applicant and two sons were taken to the hospital by ambulance. The applicant did not receive medical treatment, but her sons underwent testing to determine if they sustained any injury, specifically concussion. Damage to the applicant’s vehicle was, approximately $1,200.00 to repair.

2Initially the applicant reported physical injuries from the MVA as pain in her knee, where she hit the centre console and pain in her neck, back and shoulders from the sudden reaction to protect her children. In August 2020, the applicant submitted an Application for the Determination of Catastrophic Impairment (“OCF-19”) to the respondent Wawanesa Mutual Insurance Company (“Wawanesa”) based on a mental and behavioural impairment (Criterion 8) as a result of this 2016 MVA.

3The respondent takes the position that Mrs. Kaloczi has failed to meet the onus that her impairments are catastrophic. They submit the applicant suffered minor soft tissue injury as a result of the 2016 MVA and that she did not commence psychological counselling until a considerable time after this MVA. The respondent further asserts the reasons all assessors do not agree on the class of impairment in each sphere is because the applicant was not forthright in her reporting of other stressors that may be influential on her condition and/or she did not consistently report her lifestyle after this MVA to all of the assessors.

ISSUE

4Has the applicant sustained a catastrophic impairment as defined by the Schedule?

RESULT

5I find the applicant has failed to satisfy the onus of proving that she sustained a catastrophic impairment as a result of the accident of October 2016. 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 following spheres of functioning:

• Activities of Daily Living

• Social Functioning

• Adaption

ANALYSIS

Catastrophic Impairment – The Law

6The applicant argues that she suffers from psychological and behavioural disorders that meet the definition of catastrophic impairment, set out in the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”) as follows:

3.1 (1) For the purposes of this Regulation, an impairment is a catastrophic impairment if an insured person sustains the impairment in an accident that occurs on or after June 1, 2016, and the impairment results in…

8. …an impairment, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”) results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to mental or behavioral disorder.

7The Guides establish various criteria for establishing if someone is catastrophically impaired. Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides set out the four spheres of functioning and the levels of impairment as represented in the chart below:

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, but not all useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

Social Functioning

Concentration, Persistence and Pace

Adaption (In a work-like setting)

REVIEW OF THE EVIDENCE

8In order to meet the threshold for a catastrophic (“CAT”) impairment under criterion 8, an individual must have sustained a marked (class 4) impairment as a result of the MVA in three of the four spheres (or ‘aspects’) of functioning or one extreme (class 5) impairment due to a mental and behavioural disorder. Following CAT assessments, the findings of each party are presented in the chart below:

Area or Aspect of Functioning

The Applicant’s finding:

The Respondent’s finding:

Activities of Daily Living

Class 4

Class 3

Social Functioning

Class 4

Class 3

Concentration, Persistence and Pace

Class 3

Class 3

Adaption (in a work-like setting)

Class 4

Class 3

9The parties agree that the applicant does not suffer a marked impairment in the aspect of ‘Concentration, Persistence and Pace’.

10The parties submitted into evidence their independent CAT assessments reports in support of their positions:

The Applicants’ submissions:

The Respondents’ submissions:

CAT Occupational Therapy Assessment dated August 2, 2019¹

Completed by: Elyse Freedman, OT

CAT ADL Functional Assessment dated December 17, 2020²

Completed by: Ronald Finlay, OT

CAT Psychiatric Assessment Report dated August 4, 2020³

Completed by: Dr. Yedishtra Naidoo, Psychiatrist

CAT Psychiatric Assessment Report dated March 2, 2021⁴

Completed by: Dr. Henry Rosenblat, Psychiatrist

CAT Psychological Assessment Report dated: January 13, 2021⁵

Completed by: Dr. Curt West, Neuropsychologist

11The burden of proof rests with the applicant. She must prove on the balance of probabilities that, as a result of the subject accident, she sustained a catastrophic impairment.

12Dr. Naidoo finds the applicant to suffer ‘class 4’ (or marked) impairment levels, i.e. that significantly impede useful functioning, in three spheres; however, Dr. Rosenblat has concluded that in these same spheres, the applicant has a ‘class 3’ moderate impairment levels, i.e., compatible with some, but not all useful functioning.

13The applicant argues that while Dr. Rosenblatt found no marked impairment, he did conclude the applicant suffers from ‘panic disorder and agoraphobia’ and in doing so not only does he add psychological issues to those found by Dr. Naidoo, but this diagnosis adds more weight to Dr. Naidoo’s findings that the applicant suffers from impairments that significantly impede useful functioning. The respondent’s position is that some of the differences in opinions of the assessors might be attributed to a lack of consistency in the self-reporting by the applicant, and I agree.

Has reporting to assessors by the applicant been inconsistent?

Pre and post 2016 MVA functioning

14The applicant gave evidence as to the circumstances of the MVA. She noted that initially, her injuries were minor and her main concern at the time of the MVA was the safety of her two young sons. She confirmed that at the time of the MVA she was on maternity leave and noted that she had full intention of returning to work in 2017. In giving an account of her life pre-accident she mentions she enjoyed working for the Catholic Children’s Aid Society as an administrative assistant. She describes herself as having a full and active life, socializing with friends from work and University, athletic, participating in marathons and travelling. She explained her relationship with her husband Kevin as good and loving and she enjoyed being a mother to her two boys. The applicant did note that there were problems conceiving her children and that prior to the MVA she suffered miscarriages and attended many appointments related to fertility treatments, resulting in some frequent absences from work.

15In describing her life post MVA the applicant states her life negatively changed. She reports having pain, fatigue, irritability and little desire to participate in daily activities, such as personal grooming; care of her young children; household chores/tasks and socializing with others outside of her home. She claims to seek refuge alone in her room for most of each day. The applicant noted that this behaviour has caused her relationship with her husband to break down to a point where she fears they may separate. It also restricts her from being the mother to her child that she wants to be. She has not returned to work, and she no longer has a relationship with her mother or brother. She states she suffers anxiety being a passenger in the car and does not like to leave the house. She does not care about her appearance. She claims that as much as she feels her children are safe with her, she requires assistance from others with their care. She claims to suffer panic attacks on a frequent basis, sometimes once a day to three times a day.

16The applicant’s testimony regarding her pre and post MVA life was for the most part supported by the testimony of her husband Kevin. He explained how his wife was outgoing, social and responsible prior to the MVA. He believed that the applicant enjoyed working and had every intention to return to work in 2017, after her maternity leave. When explaining the applicant’s post 2016 MVA lifestyle, Kevin reported how they rely on various persons to assist with the care of the children as well as household chores. He notes that the applicant’s mother did assist initially but no longer has a relationship with his wife. He explained how he assists his wife with personal grooming and toileting because she has lost motivation to keep herself clean and dressed. Although he noted his awareness of his wife’s panic attacks, he admits he knew them to be less frequent, about five in a year, compared to the almost daily occurrence reported by his wife.

17Neither the applicant nor her husband could provide any window as when the applicant began to experience the above-noted changes in behaviour in relation to the 2016 MVA, such as, immediately after, a year after, etc. However, according to Dr. Naidoo,⁶ the applicant states her psychiatric symptoms started three months post MVA and reached a steady level of severity by April 2018.

Care of the children – post MVA:

18Both the applicant and her husband claimed the applicant is withdrawn and doesn’t participate in day-to-day activities with the children. The applicant has attributed this to her chronic pain. She states she doesn’t prepare meals for the children or take care of them without assistance from her husband or others. The applicant states she sometimes walks the children to the bus stop and picks them up from the stop after school. She does note that during anytime she is alone with her children, her husband frequently calls and checks in. He keeps in touch to see if they are walking to the bus, or, if the children are fed, have gone out, and how she is doing.

19Both the applicant and her husband stated they believe the children are safe in the care of the applicant. It is important to note, that both these young children were diagnosed with special needs following the subject MVA. When testifying, the applicant confirmed what she reported to Dr. Rosenblat that she is capable of watching the children for two and a half days without help from others. Dr. Naidoo states the same in his report. The applicant has explained that she has not always accurately reported to assessors her need for assistance and/or overstated her abilities relating to childcare due to a fear that her children may be taken away from her. She believes this fear exists because of her past employment with the Children’s Aid Society. In the report by Dr. Rosenblat, he emphasized the applicant’s need for a clear understanding that she could be left alone with the children. She mentioned her ability to play, read to them, go into the backyard and go for walks with them. She testified she could walk her children to and from the bus stop. She can drive them to school if necessary. She still however has reported to many assessors that she does not believe she is a good mother and still feels restricted in her ability to interact with them as she would like. In an earlier, January 2019 assessment with Dr. Zakzanis, regarding her caregiving responsibilities, the applicant reported “she is physically impeded from some, but not all tasks. She did not endorse or report any disabling psychological impairment to this end”.

Ability to return to work

20The applicant claimed to be on maternity leave at the time of the MVA. Both the applicant and her husband stated the intent was for her to return to work in 2017. The applicant reported to Dr. Zakzanis “that if not for the accident she would have gone back to work after the leave, June 30, 2017”⁷. The applicant has testified and reported to several assessors that she feels guilt for letting her husband down and not contributing as she should be. At the hearing, the applicant stated she was receiving benefits but could not recall why or in what amount(s). She also could not recall what she was earning while employed. Later, the applicant’s husband was able to confirm that his wife was receiving benefits in the amount of $44,000.00 per year.

21When questioned about her employment status, her husband believed that applicant had returned to work after the birth of their first son (in 2016). He seemed unaware that she had not returned to work since 2013. From the evidence before me, the applicant has correctly reported the facts of her employment dates to assessors, and in fact, had reported to Dr. Zakzanis that she was earning $36,578.89 per year when last employed in 2013. Evidence was not presented as to why the applicant was receiving any benefits and if her employer was expecting her to return after her last maternity leave. The applicant advised E. Freedman, OT⁸ that she has not attempted to return to work as she feels she would be unable to perform the required tasks.

Personal care, toileting

22The applicant reports a need for assistance with personal grooming, including washing her hair, shaving her legs and wiping herself after going to the toilet. Her husband admits to helping her with these tasks. Both the appellant and her husband testified this toileting issue is one that caused contention and her feeling upset. The applicant had reported to some assessors that personal grooming, toileting and dressing were difficult due to physical pain or restrictions, like ‘reaching around when trying to wipe herself’. She has reported that she requires assistance from her husband or mother to shower, do her hair, dressing, again because of the pain. But, when given the opportunity, both the applicant and her husband failed to advise any assessor that her husband had to assist in wiping his wife.

23They admit that an OT suggested the purchase of a bidet would assist in the applicant’s ability to self-toilet more easily, yet this suggestion was never followed up. R. Findlay, OT testified that from his first assessment in February 2020 to his assessment in December 2020⁹ the applicant’s bathroom was renovated to make it more functional for her. He was not aware of the applicant’s husband having to assist her with toileting and again, neither the applicant nor her husband considered the purchase of a bidet.

24The applicant’s position is that the complete matter of toileting may have been too embarrassing to speak about which is why the applicant and her husband failed to mention it to assessors. E. Freedman OT included in her report that the applicant showers every evening and has difficulty wiping herself, but that toileting is independent. When testifying, Ms. Freedman stated that personal hygiene is a (quote) “big deal” and she would expect that the applicant would have mentioned this when interviewed, regarding attendant care needs or during the CAT assessments. Dr. Zakzanis reported the applicant takes more time and needs help dressing, but like the other assessor reports in evidence, makes no mention of any assistance required by her husband for wiping.

Hawaii vacation following the 2016 MVA

25The applicant and her husband stated that they had taken the two young children, approximately two years and 1 year old, on a trip to Hawaii in 2017. The applicant was given a doctor’s note to allow her to get up and walk in the aisle during the flight because of physical needs. They both give an account of a panic attack while in Hawaii. A bystander called an ambulance, and the applicant was attended to by paramedics, she was taken to her hotel room and did not require any follow-up hospital visit. Neither mentioned any other incident during this trip.

26The applicant first reported to Dr. Zakzanis that the Hawaii trip “wasn’t bad” and she failed to mention the panic attack. In a second interview with him, she merely mentioned she could not do things with the children, but again did not mention the panic attack. Her CAT assessor, Dr. Naidoo was unaware of this Hawaii trip, and it was not mentioned in his report. When questioned, he admits that he would not expect someone with agoraphobia or panic attacks to board a flight or go to another country. When assessed by Dr. Rosenblatt¹⁰, the applicant mentioned the Hawaii trip and the panic attack, but also stated it to be ‘nice to get away’ and that she ‘found it quite calming’.

Criminal charges against the appellant following the 2016 MVA

27The applicant was arrested approximately one year after the MVA. These charges were withdrawn approximately eight months later. The applicant submits that this experience was ‘slightly’ stressful but because she knew she was innocent, it was not a situation she perceived to have any impact on her psychological issues. She stated she failed to mention these charges or any involvement with the police to any assessor because she knew she would be exonerated and to her, this situation was not important.

28Dr. Naidoo reported that the applicant did not have any criminal history. He testifies that the reason this question is asked is that it may add as a stressor. He notes that if he had known of the applicant’s situation regarding the criminal charges, he would have explored it further. He also admits that knowing this might have a bearing on the applicant’s veracity. Dr. Rosenblat testified the applicant ‘made it clear’ she had no history of legal and or criminal problems. He stated if he had known she had the criminal charges made against her, he would have collected additional information because it helps him understand a person’s ability to function in stressful situations. Dr. West also testified that the applicant denied ever having problems with the police, or law enforcement, arrest, charges or convictions. He notes he poses this question in all interviews because such an event can be stressful and have an impact on a person’s state of mind. He opines that the applicant’s response to this question might go to credibility of the examinee.

29In summary, none of the CAT assessors were aware of the applicant’s criminal charges (or subsequent withdrawal of the charges) and were not given an opportunity to determine if, or to what extent, this situation may have affected the applicant’s post-MVA psychological state. From this evidence, I cannot assign any weight to the impact of the criminal charges on the findings of any of the psychological assessments of the applicant. That said, I find that the failure of the applicant to disclose the charges, especially when specifically asked by the assessors, raises questions of the reliability of the assessors’ findings, particularly the actual extent to which the 2016 MVA itself caused any psychological impairment.

Internet Blogs – after 2016 MVA

30The applicant was presented with copies of a blog website showing a picture of her and a couple of articles that appear to have been authored by her¹¹, which are dated September 2019. These articles represent the applicant as a loving hardworking woman who gives advice on managing her home, children, social, and community life. The applicant flatly denies writing these blogs and claims that the articles were authored and posted by the company paid to repair her reputation online. She attributes the data that seems personally related to her to be derived from the information she provided the company through telephone interviews, and that the information she had given the company related to her ‘pre-accident’ life. She was unable to explain the origin of the photograph showing her professionally dressed and groomed.

31Her husband Kevin, on review of the blog materials, stated he had never seen them prior to the hearing. Given the hearing was conducted through ‘Zoom’, the respondent noted that the online photo of the applicant was obviously taken where Kevin was sitting at the time of his testimony. He denied seeing this picture before and he was unaware of any photography shoot in his home after the subject MVA. He explained that he does not believe his wife posted this information and that it was most likely the company he had hired who posted the blogs in an attempt to repair his wife’s online image.

32The applicant’s husband stated he paid a few thousand dollars to a company to remove links on the internet referencing the applicant to articles about her criminal charges. He states he was trying to protect the interests of his children and his business, as he is self-employed. Through cross-examination, the applicant’s husband confirmed he paid approximately $8,500.00 to this company.

33Both the applicant and her husband state that they have never gone online to determine what this company had done for the fees charged. The applicant’s husband testified that all individual invoices provided by this company had been produced for this hearing. On review, there wasn’t a single invoice that referenced any photography session or the writing and posting of the blogs, but they do show invoices for having specific links related to her criminal charges deleted.

34There was no evidence to show how these blogs in the applicant’s name and photograph have been posted to the internet. All I can derive from this evidence is that while the applicant and her husband claim the criminal charges were not of much concern, they paid a considerable amount of money to mitigate any damages caused by the charges. The applicant stated she engaged in telephone interviews with a company to develop content for these internet blogs and I find that to be inconsistent with a marked mental or psychological capability. It suggests to me, she has some ability to work with others, and to adapt (in like a work-like setting).

Seeking/Obtaining psychological treatment

35Neither the applicant nor her husband could testify as to when her psychological symptomology began to manifest except for ‘after the 2016 MVA’. When asked why she failed to obtain psychological counselling until 2019, several years after the MVA, the applicant stated she had sought counselling earlier but was unable to get it. The applicant failed to produce any family doctor records that might support a request or referral for such treatment at any time shortly after the MVA

Findings on catastrophic impairment

36For the reasons that follow, I find that the applicant has failed to prove she suffers a marked impairment (class 4) in at least three of the four spheres of functioning related to mental and behavioural impairments¹², as a result of the 2016 MVA.

37Dr. Rosenblatt’s CAT assessment report includes a diagnosis that the applicant suffers from panic disorder and agoraphobia. When testifying, he clarifies that he found the applicant to suffer a “mild case of agoraphobia”. The applicant argues this diagnosis supports a ‘marked impairment’ rather than the moderate impairment concluded by Dr. Rosenblatt. However, when Dr. Naidoo testified, he was unaware of the applicant’s post MVA trip to Hawaii. He stated, “he would not expect someone with agoraphobia or panic attacks to board a flight or go to another country”. This is an example of where Dr. Naidoo and Dr. Rosenblatt were not provided with the same information, information that could potentially influence a diagnosis. Aside from being able to travel, the fact that the applicant and her husband reported to many assessors that she can leave the house to drive to appointments and/or take the children to the bus stop, park or school, illustrates the applicant’s ability to leave her home at some times regardless of her panic attacks or agoraphobia.

38The applicant reports that she is unable to complete household chores because of her pain symptoms and lacks motivation to complete them. E. Freedman, OT observed that she could engage in a simple meal preparation and light housekeeping when not distracted by pain. The applicant claimed she could not wash dishes because she would drop them, yet when tested the applicant could squeeze the OT’s hand. The OT did not do any further physical testing. When questioned about the applicant’s ability to drive Ms. Freedman, in reference to physical functioning noted a person would need to be able to sit for a certain period of time, be able to rotate their neck from side to side and have the ability to reach forward to reach and hold the steering wheel as well as have the ability to use their shoulder or arm to touch the gearshift. As the applicant reported driving up to an hour if needed, I find that a skill set that would enable her to drive would most likely give her the physical ability to complete some household or light housekeeping chores.

39The applicant emphasized her need for assistance with personal grooming and her personal hygiene, the most severe being a requirement by her husband to assist her with toileting. As noted above, reports are conflicting on these issues, but Dr. Naidoo included in his report that the applicant has good grooming and hygiene. While the applicant’s home was renovated to accommodate some of her self-grooming needs, there was no attempt to resolve an uncomfortable issue between her and her husband by the purchase of a bidet or the follow-up with an OT who suggested this aid. E. Freedman, OT reported the applicant showers every evening, and toileting is independent. This would indicate the applicant is capable of some functioning related to personal grooming and hygiene and, when considering the classes of impairment, is consistent with at most a moderate level or class 3 impairment.

40Regarding childcare, the applicant admits she may have overstated her abilities to some assessors, but Dr. Naidoo testified that even if the applicant had support from her mother or her husband while caring for her children for two days in a row, he could agree that she has some function but not all function, which matches a definition of a class 3 or moderate impairment.

41Dr. Naidoo admits the applicant reported that she drives, including on the highways. He testified that he considers not just the act of driving itself, but related activities such as, where it is she would be driving to. He agreed that driving implicates executive brain function: including planning a route; obeying the rules of the road; planning; attention and focus. He agreed that to some extent driving involves the ability to problem-solve, concentrate, and involves decision-making. He also agreed it would imply a certain degree of physical ability to drive safely. This opinion is shared by E. Freedman, OT. Ms. Freedman who also testified that in order to drive safely, aside from certain physical abilities, driving would require attention and concentration, visual scanning, problem solving, memory and executive functioning.

Causation – “But For” test

42While it is not disputed that the applicant has some ongoing psychological impairments, on the evidence, I am unable to conclude on a balance of probabilities that she satisfied the causation test to prove that “but for” the accident¹³, she would not have suffered the psychological or behavioural disorders that resulted in these impairments.

43The Divisional Court has confirmed that the “but for” test is the correct test to be used when determining causation in accident benefits cases¹⁴. 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.¹⁵ The applicant bears the burden of proving on a balance of probabilities that the accident was a necessary cause of her psychological impairments.

44The respondent submits that the applicant’s current impairments were not caused by the accident, but through other life events, some of which were not reported by the applicant to her assessors, some that occurred after the 2016 MVA and before 2019 when the applicant first obtained psychological treatment. The applicant argues the best evidence of causation is a comparison of her life pre and post 2016 MVA. However as noted above, the evidence shows that not all aspects of her pre and post MVA life were consistently reported to the assessors.

Ability to return to work – medical history

45Prior to the MVA, although the applicant reported that she was on maternity leave, the evidence shows she has not worked since 2013, three years prior to the MVA, and she has been collecting LTD benefits. The applicant has not provided any medical evidence as to why she was not working and/or if the condition that kept her from working persisted or ceased to exist when she had planned to go back to work in 2017. The only evidence presented is her reporting that “if not for the accident she would have returned to work”.

Criminal charges against the appellant following the 2016 MVA

46The applicant neglected to report these charges to any of her assessors. Both the applicant’s and the respondent’s assessors state that this situation may have caused stressors that should have been considered when analyzing the applicant’s psychological symptomology.

Another MVA in 2018

47The applicant (with her family) was involved in another MVA on May 5, 2018. The applicant testified at the hearing as she had reported to Dr. Zakzanis¹⁶, that this second MVA was fairly similar to the subject 2016 MVA and that there was no significant damage but this second MVA worsened her neck and back injuries that were sustained in the subject MVA (‘but physical injuries improved’). When Dr. Naidoo testified about the first 2016 MVA he states that besides any physical pain ‘….as well as feeling as though herself and her children were in harm’s way, she then would have developed emotional and cognitive symptoms….”. This said, while the applicant reports this second MVA to be an almost identical circumstance, where the applicant was in the vehicle with her children, soft tissue injury, and minimum damage to the vehicle, there is no evidence presented that this second MVA had any effect on the applicant’s emotional or cognitive symptoms. Given the applicant did not seek psychological treatment until after this second MVA, it does lend some credence to the respondent’s argument that the second MVA may have had some influence on the applicant’s psychological status.

Obtaining psychological treatment

48When assessed by Dr. S. MacKay¹⁷ in 2017, the applicant denied having any psychological issues. The doctor concluded the applicant did not have any accident-related psychological complaints. This report also states, “no cognitive difficulties” and “psychological functioning is good”. In the 2019 report, Dr. Zakzanis recommends psychological counselling for pain management. Dr. Naidoo, in 2020 records the applicant as stating that her psychiatric symptoms started three months after the 2016 MVA and got worse, reaching a steady level of severity by April 2018. While Dr. Zakzanis, in his second report in 2020 admits he did not review Dr. MacKay’s psychometric results, his findings were that the applicant’s psychological status at that time had worsened since his initial examination and then opines this is as a direct result of the 2016 MVA. He fails to explain why he attributes her condition solely to the 2016 MVA, but evidence shows his analysis lacked the benefit of some facts, such as the criminal charges and he failed to explain why the 2018 MVA had been dismissed as having no impact on her condition.

49The “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.

50In this case, for the reasons above, I find the 2016 MVA was not a necessary cause bringing about the applicant’s psychological or behavioural impairments. In fact, given the applicant only sought psychological treatment years after this MVA, I am satisfied that on a balance of probabilities the applicant’s psychological impairments were not caused by the MVA. Given the other factors noted in the evidence, I do not find that the 2016 MVA was necessary to bring about her current psychological or behavioural impairments.

CONCLUSION AND ORDER

51The applicant did not sustain a catastrophic impairment as a result of the accident, as defined in the Schedule.

Footnotes

1. 1Exhibit #4: Joint Document Brief - Tab 97
2. 2Exhibit #5: Joint Document Brief - Tab 112
3. 3Exhibit #7: Joint Document Brief – Tab 102
4. 4Exhibit #8: Joint Document Brief – Tab 117
5. 5Exhibit #9: Joint Document Brief – Tab 115
6. 6Joint Document Brief – Tab 102, CAT Psychiatric Assessment Report, dated August 4, 2020
7. 7Joint Document Brief – Tab 101, Neuropsychological and Psychological Assessment, dated March 7, 2020
8. 8Joint Document Brief – Tab 97 [Exhibit 4] CAT Occupational Therapy Assessment Report, dated August 2, 2019
9. 9Joint Document Brief – Tab 112 [Exhibit 5] CAT ADL Functional Assessment Report, dated December 17, 2020
10. 10Joint Document Brief – Tab 117 [Exhibit 8], CAT Psychiatric Assessment Report, dated March 2, 2021
11. 11Exhibit 3
12. 12Area or Aspect of Functioning: (1) Activities of Daily Living; (2) Social Functioning; (3) Concentration, Persistence and Pace; (4) Adaption (in a work-like setting)
13. 13Subsection 2(1) of the Schedule defines “accident” to mean “an incident in which the use or operation of an automobile directly causes impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device”.
14. 14Sabadash v State Farm Mutual Insurance Co., 2019 ONCJ 656, [2019] OJ No 788 (Div. Court February 15, 2019)
15. 15Clements v Clements, 2012 SCC 32, [2012] 2 SCR 181
16. 16Joint Document Brief – Tab 101, Neuropsychological and Psychological Assessment, dated March 7, 2020
17. 17Included in the S.44 Multidisciplinary Assessment Report, dated December 28, 2017 – Tab 109 of the Joint Document Brief