Citation: Bishop v. TD General Insurance Company, 2022 ONLAT 20-006964/AABS

Licence Appeal Tribunal File Number: 20-006964/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:

Adriana Bishop

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Adriana Bishop, Applicant

Rand Meshki, Counsel

For the Respondent:

Peggy Moore, ADR Specialist

Noah Shapiro, Counsel

Harley Kruger, Counsel

Court Reporter:

Amy Fairia, Network Reporting

HEARD by Videoconference:

November 15, 16, 17, 18, 19, 23 and 25, 2021

OVERVIEW

1Adriana Bishop (the “applicant”) was involved in an automobile accident on June 7, 2016, and sought benefits from TD General Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and applied for dispute resolution to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). Specifically, it denied that the applicant’s accident-related impairments met the definition of catastrophic (“CAT”) impairment based on a mental and behavioural disorder under the Schedule. The respondent conducted insurer examinations (“IEs”) and determined that the applicant’s accident-related impairments did not meet the definition of CAT.

2The matter proceeded to a case conference, but the parties were unable to resolve the issues in dispute. As a result, the matter proceeded to a seven-day videoconference hearing. For the applicant, I heard the testimony of the applicant, Peter Reimer, applicant’s partner, Dr. Levitt, psychologist, and Dr. Pailing, treating neuropsychologist. On behalf of the respondent, I heard the testimony of Dr. Ali, psychiatrist, Tina Cagampan, occupational therapist (“OT”) and Dr. Hyatt, the applicant’s family doctor.

ISSUES

3I have been asked to decide the following issues:

1. Did the applicant sustain a CAT impairment pursuant to the Schedule?

2. Is the applicant entitled to the remainder amount of $2,199.00 [original amount of $3,860.00 – approved amount of $1,661.00] for dental services, recommended by Dr. Yvonna Hrabowsky, in a treatment plan (OCF-18), submitted on October 3, 2019, denied on October 10, 2019?¹

3. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

[4] After reviewing both parties’ submissions and all of the evidence I find:

1. The applicant sustained a CAT impairment as a result of the accident.

2. The applicant is not entitled to an award.

PROCEDURAL ISSUE

[5] The respondent summoned Dr. Hyatt, the applicant’s family doctor to testify in order to cross-examine the doctor as an adverse witness. The applicant argues that she has the right to conduct an in-chief examination or cross-examine Dr. Hyatt first. The respondent disagrees and argues that the applicant lost her right to conduct an in-chief examination when she chose not to call the doctor as a witness. It submits that as the applicant’s family doctor, it is assumed that the Dr. Hyatt would be helpful to the applicant’s case. The doctor would have valuable insight into the applicant’s pre- and post-accident medical history. Since the applicant failed to call Dr. Hyatt, it is entitled to cross-examine the doctor.

[6] I agree with the respondent. When a witness is summonsed, it is part of the normal course for the party who issued the summons to cross-examine that witness. The applicant relies on the Divisional Court’s decision in Anderson v. Flying Saucer[^2] in support of her position that she has a right to cross-examine Dr. Hyatt. I do not find this decision helpful to the applicant’s position as it dealt with when a witness is declared a hostile witness. In my view, I do not find that Dr. Hyatt meets the criteria of being declared a hostile witness.

7I also agree that if the applicant wanted the right to conduct an in-chief examination of Dr. Hyatt, she should have called the doctor as a witness. Instead, she left it open to the respondent to summons the doctor and consequently it has the right to cross-examine. The respondent cited Rule 53.07(5) of the Rules of Civil Procedure which provides a party with the right to cross-examine an adverse witness. It is important to highlight that the Tribunal is not bound by the Rules of Civil Procedure. Despite this fact, I find that the Rules of Civil Procedure provides useful guidance from a procedural perspective regarding when cross-examination is appropriate.

8The respondent also referred to s. 10.1 of the Statutory Powers Procedure Act³ (“SPPA”) which provides that a party may call and examine witnesses or conduct cross-examinations of witnesses for a full and fair disclosure of all matters relevant to issues in a proceeding. While I am bound by s.10.1 of the SPPA it is not instructive as far as setting out the order of the examination of witnesses. For the reasons set out above, I found the respondent is entitled to cross-examine Dr. Hyatt and the applicant may conduct a reply examination. The applicant opposed my ruling and requested that I note her objection.

BACKGROUND

9On June 6, 2016, the applicant and her daughter were involved in an automobile accident, when their vehicle was involved in a head-on collision with another vehicle travelling at medium speed. She reportedly did not recall the impact. The airbags deployed and she exited out of the vehicle which had caught fire. Emergency services were called, they were transported to hospital and were discharged the next day. She followed up with her family doctor who prescribed pain medication and referred her for physiotherapy. An MRI taken shortly following the accident revealed that the pre-existing right shoulder impairment went from a small partial thickness tear to a wide high grade partial thickness tear with severe tendinopathy which eventually required surgical intervention. This condition developed into chronic pain and resulted in a psychological impairment.

10On July 4, 2019, the applicant submitted an application for a CAT determination under section 3(1)(8) of the Schedule (“Criterion 8”) based on a mental and behavioural impairment. These impairments are assessed under Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“Guides”).⁴ Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides sets out the four spheres of functioning and the levels of impairment as represented in the chart below.⁵

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

Adaptation (Deterioration in a work-like setting)

11In order to meet the threshold for a CAT impairment under Criterion 8, an individual must have sustained a marked (class 4) or extreme (class 5) impairment as a result of the accident in three of the four spheres of functioning due to a mental and behavioural disorder.

12The applicant relies on the CAT report of Dr. Levitt, psychologist who determined that she suffers a marked impairment in all four spheres of functioning. The respondent takes the position that the applicant does not suffer a marked (class 4) or extreme (class 5) impairment in any one of the four areas of functioning due to a mental or behavioural disorder. It relies on the CAT IEs of Dr. Ali and Ms. Cagampan. Dr. Ali determined that the applicant sustained a moderate impairment (class 3) in activities of daily living, a mild impairment (class 2) in social functioning, a mild impairment (class 2) in concentration, persistence and pace, and a moderate impairment (class 3) in adaptation.

13This matter is complicated by the fact that the applicant had a significant pre-accident medical history. She also had a few falls post-accident and two additional automobile accidents, in which she sustained physical impairments. The respondent argues that the accident did not cause the applicant’s physical or psychological impairments that form the basis for her application for a CAT determination. It maintains that the applicant had serious health issues pre-accident and that the accident was not the cause of the applicant’s impairments or resulting functional limitations.

14The applicant asserts that the accident caused her impairments and functional limitations. Therefore, before I determine whether or not the applicant meets the threshold for CAT under Criterion 8, I will first address the issue of causation.

ANALYSIS

Did the accident cause the applicant’s impairments?

15I find that the accident exacerbated the applicant’s pre-accident chronic pain condition and was a necessary cause of her current psychological impairment.

16It is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident she would not have suffered the impairments which form the basis for her application for CAT status. The court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment but a necessary cause. As per my reasons below, I find that the accident was a necessary cause of the applicant’s psychological impairment.

17In analyzing causation, it is necessary to compare the applicant’s pre- and post-accident life to determine to what extent any accident-related impairment affected her ability to function. The applicant provided the following testimony regarding her pre-accident life and activities:

i) She was independent with her daily activities, self care and housekeeping and home maintenance tasks, with the exception that she required assistance washing her hair and assistance with some heavier household tasks due to her pre-existing right shoulder impairment.

ii) She worked as an instructor therapist with autistic children for ten years prior to the accident. This was a physically demanding and stressful occupation. Throughout the time of her employment, she was involved in several workplace incidents involving her clients which resulted in physical impairments and the need for her to work modified duties. She was working modified duties when the accident happened due to her right shoulder injury.

ii) She was Chair of her Union and would advise colleagues about their employment rights and advocate on their behalf.

iii) She was happy and energetic and enjoyed going shopping, out to restaurants and socializing with friends.

iv) Six months prior to the accident she had become involved in a romantic relationship with Mr. Reimer (her “partner”), who she has known since adolescence. Both the applicant and her partner described having a happy and healthy relationship prior to the accident.

v) She had good relationships with her mother and two children and would host holiday get togethers.

vi) She was an advocate on behalf of her adult son who has a significant mental health condition.

18The above testimony was consistent with what the applicant reported to the assessors. The applicant submits that her accident-related physical impairments resulted in chronic pain which resulted in her psychological impairment. She testified that post-accident her life has drastically changed as:

i) She has not been able to return to work as a result of her accident-related physical and psychological impairments. This fact is undisputed by the respondent as it is still paying her an income replacement benefit (IRB) four years post-accident.

ii) Her relationship has changed with her partner. They now fight all of the time because she is irritable, snappy and lacks energy to do things.

iii) She has met friends for coffee and has tried to socialize but often cancels and socially isolates because of anxiety and she cannot stand going out in public because people annoy her.

iv) She has inappropriate emotional outbursts directed towards her partner, family members, servers, staff at fast food restaurants, and other drivers.

v) She tries to maintain a daily routine but often struggles to get out of bed and initiate and complete tasks once they are started. Regular routine tasks take her longer to complete.

19I find the applicant to be a credible witness in describing her pre- and post-accident activities as her testimony was consistent with what she reported to assessors. Although there was a discrepancy in the applicant reporting that she lost consciousness following the accident, I do not give this one example of unreliable reporting much weight because I find that she described everything else in a straightforward manner. For example, I do not find that she tried to hide her medical history or the fact that she was on modified work duties at the time of the accident.

20Much was made by the respondent about the applicant’s pre-accident employment history. It highlighted that she had been on an attendance support program in the years prior to the accident and had been issued a warning in 2014 about a workplace incident. I do not give this evidence much weight as the applicant was still working at the time of the accident and had not been terminated.

21The respondent also spent a lot of time highlighting the applicant’s pre-accident medical history and referred to numerous records which support that the applicant suffered from redundant migraines which resulted in significant absences from work. The applicant also sustained various sprain and strain injuries to various parts of her body, including back pain and a tear to the right shoulder in the year prior to accident which resulted in some functional limitations. It was also noted in the pre-accident medical records that the applicant was vulnerable to long term disability. Although I agree with the respondent that the applicant had a significant pre-accident medical history of migraines and physical impairments in the years leading up to the accident, I find that the evidence supports that she was still functioning at a much higher level than she has been following the accident.

22Ultimately, I reject the respondent’s argument on causation because both parties’ psychological assessors (including its own) determined that the applicant sustained a psychological impairment as a result of the accident. Other than a few reports about anxiety, the pre-accident medical records do not support that the applicant had any diagnosable psychological condition prior to the accident. Dr. Levitt diagnosed the applicant with Somatic Symptom Disorder with predominant pain, persistent, moderate; Major Depressive Disorder, chronic, moderate; and Other Specified Trauma and Stressors related Disorder. Dr. Ali, the respondent’s assessor diagnosed the applicant with exacerbation of prior pain complaints meeting the criteria for Somatic Symptom Disorder. However, the doctor concluded that applicant did not meet the criteria for clinical depression. In a subsequent report authored by Dr. Ali eight months later the doctor added Major Depressive Disorder, mild to the applicant’s diagnosis.

23Both assessors reviewed the applicant’s pre-accident medical records as part of their assessments and still opined that the accident was a cause of the applicant’s psychological impairment. Consequently, I accept these assessors’ opinions and find that the accident was a necessary cause of the applicant’s psychological impairment.

24The applicant was involved in two minor accidents following the subject accident. I do not find the evidence supports that she sustained any significant impairments as a result of these accidents. The respondent also submits that the applicant had a fall on January 31, 2018, in which she reinjured her shoulder and that prior to that she had made steady improvements after she had surgery in June 2017. It maintains that it was this incident that led to the deterioration in the applicant’s psychological condition not the accident. It relied on a few CNRs of Dr. Hyatt and Dr. Sacevich, orthopaedic surgeon who made reference to the applicant making improvements prior to the January 2018 fall.

25I acknowledge that a few CNRs prior to the fall in January 2018 note improvements to the applicant’s right shoulder and one notes improvements to her mood. Overall, I do not find the medical records support the respondent’s position. Dr. Hyatt and Dr. Pailing’s CNRs and reports from September to December 2017 note ongoing issues with anxiety and depression. Therefore, I place little weight on one note that says, “mood ok.” For all of the above-noted reasons I find the threshold for causation has been met. Now I will address whether the applicant meets the threshold for catastrophic impairment under Criterion 8.

Did the applicant sustain a catastrophic impairment as a result of the accident?

26I find the applicant sustained a CAT impairment, as I find the evidence supports, she has a marked impairment in all four spheres.

27I prefer the report and opinion of Dr. Levitt over Dr. Ali as I find Dr. Levitt’s assessment was more thorough and followed the procedures set out in the Guides for conducting assessments. For example, the assessment took 10 hours (over two days) to complete and included a detailed review of the applicant’s pre- and post-accident medical records, the administration of psychometric tests, and collateral interviews with the applicant’s partner and Dr. Pailing. In addition, I find Dr. Levitt’s diagnosis and impairment ratings were more consistent with the medical record before me and were corroborated by the CNRs of Dr. Pailing.

28The respondent challenged Dr. Levitt’s neutrality as an assessor as the doctor wrote an article in June 2016 about the legislative changes to the definition of CAT impairment under the Schedule. In the article Dr. Levitt disagreed with the new requirement for a person to have three versus one marked impairment to meet the threshold for CAT impairment. Dr. Levitt testified that there is significant overlap between the four spheres of functioning and that opinions regarding the law and science do not always meet. Dr. Levitt also testified that the assessments he completes are balanced as only four out of ten assessments he conducts, does he find a person to be CAT. Overall, I do not find Dr. Levitt’s assessment or his testimony to be unneutral. In my view, the fact that it is his medical opinion that the threshold for CAT should be lower does not make him an advocate for the applicant.

29The respondent also submits that Dr. Levitt ignored causation in assessing the applicant’s pre-accident medical history. I disagree. I find the opposite to be true as on page pages 53 and 54 of the report, Dr. Levitt gave a very detailed explanation for how he came to the determination that the accident was the cause of the applicant’s psychological impairment.

30I have given Dr. Ali’s opinion and assessment less weight for the following reasons:

i) Dr. Ali’s assessment took 53 minutes, and no testing or collateral interviews were undertaken. In addition, Dr. Ali seemed to overlook the collateral interview of the applicant’s partner undertaken by Ms. Cagampan.

ii) Dr. Ali heavily relied on the OT assessment of Ms. Cagampan in rendering her opinion under the four spheres of functioning, which I find problematic for the reasons noted below.

iii) Dr. Ali testified that she did not find the applicant’s self-reports valid yet nowhere in her report does she comment on the applicant’s credibility. Further, the findings of Dr. Ali’s CAT assessment are inconsistent with an assessment she completed eight months later addressing the applicant’s entitlement to post-104 IRBs. While I acknowledge that entitlement to post-104 IRBs has a different legal threshold, Dr. Ali’s second report describes a person with a more serious psychological impairment and functional limitations. For example, the doctor’s mental examination noted the following.

Overall, there was significant psychomotor slowing. She frowned, appeared tired, irritable, in chronic pain, and exhausted. She seemed reliable without any deliberate symptom production or symptom exaggeration. She had a lot of pain complaints. Mood appeared sad. Affect was flat and irritable with some reactivity...Speech lacks inflection and tone was depressed and exhausted. She presented as easily vulnerable to stress and struggling to cope.

31Finally, as noted above Dr. Ali heavily relied on the OT assessment of Ms. Cagampan which I find unhelpful in assessing the applicant’s limitations as it was too basic. For example, Ms. Cagampan’s functional testing included having the applicant make a pot of instant oatmeal, write out a couple of cheques, identify her name on a pill bottle and find out whether a grocery store did online delivery. I asked Ms. Cagampan whether the functional testing she administered was specifically designed for CAT assessments. She confirmed that the tests used are geared towards people with Alzheimer’s or other geriatric conditions. In my view, the fact that the applicant could perform the tasks in that assessment does little to convince me that the applicant’s impairment levels are mild.

32Having described the main reasons for why I prefer Dr. Levitt’s opinion over Dr. Ali’s I will now address the four spheres of functioning

ACTIVITIES OF DAILY LIVING

33I find that the applicant has a marked impairment in activities of daily living as a result of an accident-related psychological impairment.

34The Guides specify that activities of daily living include self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitation in these activities should be related to the person’s mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual’s overall situation. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.⁶

35Dr. Levitt’s CAT assessment concluded that the applicant has a marked impairment in activities of daily living. The report notes that the applicant does very little useful activity on her own. Dr. Levitt’s findings were corroborated by both the applicant and her partner’s testimony as well in Dr. Pailing’s CNRs and reports. The respondent submits that the applicant has a moderate impairment in this sphere because she is independent with personal care, she can drive, manage her finances, cook, do light housekeeping, communicate, and participate in social and leisure activities. While the evidence supports that the applicant can do some of these things, I find that she does not do them consistently or as efficiently in the same way she did pre-accident. The following summarizes my findings in relation to the applicant’s function in activities of daily living.

Self-care, Personal Hygiene, & Housekeeping and Home Maintenance Tasks

36Prior to the accident the applicant had some limitations with washing her hair as a result of her pre-existing shoulder injury but was otherwise independent with self-care and personal hygiene. With the exception of some heavier housekeeping and outdoor maintenance chores the applicant was independent with these tasks.

37The applicant testified that post-accident she can independently carry out self-care tasks from a physical perspective, yet with modifications and at a slower pace. However, she is inconsistent in carrying out these tasks because of a lack of initiation and motivation as a result of her depression. She testified that sometimes she will not get out of bed for three days. She stated she can do some light housekeeping but will often start a task such as laundry and forget about it. It takes her a week to complete a task that previously would have taken her a day. Further, her partner has to push her to do things as she will not initiate tasks on her own.

Travel & Ambulation

38Prior to the accident the applicant was independent with driving and did not have any limitations with mobility. For example, she did not have any limits with sitting, standing, or walking. This was supported by a pre-accident WSIB report dated March 21, 2016, which notes that the applicant did not have any limitations with prolonged sitting, standing, or walking.

39Post-accident, the applicant has been diagnosed with passenger and driving anxiety and only drives short distances. She is hypervigilant and over-reactive as a driver and has followed other drivers to yell at them for cutting her off. Her partner testified that as a passenger, the applicant has been known to scream and has tried to grab the steering wheel. I find these post-accident limitations were consistently reported to assessors throughout the medical reports and were corroborated through the testimony of the applicant’s partner, which I find to be credible. The applicant testified that post-accident she sometimes pushes herself to do things and tries to go for a short walk every day, however, she can only walk for 15 minutes due to fatigue as a result of issues with sleep and depression. I find the applicant’s limitations with mobility was consistently reported in the medical record before me. Further, I find these limitations are directly connected to the applicant’s psychological impairment.

Social and Recreational Activities

40Prior to the accident a big part of the applicant’s social life was with her colleagues at work as she would attend movies, bowling, conferences, and workshops with them. The applicant also testified that she had a good relationship with her partner, her mother and two children. She was also an advocate for her son who had serious mental health issues and was a big source of emotional support to him. She also enjoyed going shopping, to concerts, meeting friends for coffee and eating out at restaurants.

[41] Post-accident the applicant’s social life has been significantly curtailed as she is no longer working and has lost contact with colleagues. She testified that she socially isolates because she feels stupid and has nothing to talk about. The loss of her ability to work has also had an impact on her psychological presentation as she was passionate about her job and post-accident has lost a sense of purpose in life. Dr. Pailing’s CNRs note the applicant’s feelings about her inability to work and its impact on her psychological presentation. The applicant acknowledged that she has met friends for coffee, but she often cancels, or the visits are cut short because of anxiety. Further, she cannot stand going to malls or restaurants because people annoy her, and the sound and other stimuli bother her.

Sexual Function

42Prior to the accident, the applicant did not report any issues with sexual function. Post-accident she reports a loss of libido - she is no longer interested in sex because of physical pain and problems with mood resulting in a lack of motivation. The changes to the applicant’s libido are noted in the medical reports.

Communication

43Prior to the accident, the applicant testified that she did not have any issues with communication. The respondent submits that the applicant had issues communicating effectively pre-accident. It highlighted a performance review which notes that the applicant “will handle communications with colleagues with tact and diplomacy.” The applicant testified (and it is also reflected in various reports) that part of her job as an instructor therapist was to communicate with children with autism. She would also go out to her client’s homes and work with parents struggling to meet the needs of their autistic children. In my view, the ability to communicate effectively and professionally was a requirement of the applicant’s job.

44Post-accident, I find the applicant’s ability to communicate has been significantly impeded by her accident-related psychological impairment. Post-accident, the applicant has become angry and confrontational and at times she does not communicate at all. Both her and her partner testified that post-accident she often snaps on servers and fast-food staff. Further, she has followed other drivers who have cut her off to yell at them. In my view, this behaviour demonstrates that the applicant’s has difficulty communicating effectively post-accident. The applicant’s problems with communication are also reflected in the situational assessment of Ms. Cagampan, which I discuss further under the sphere of social functioning below

Sleep

45Prior to the accident the applicant had issues with snoring and sleep apnea which likely affected the quality of her sleep. However, the applicant’s problems with sleep pre-accident did not seem to affect her ability to function as she was still working and was able to carry out her daily activities.

46Post-accident, the applicant reports getting three to four hours of sleep per night because of anxiety and pain resulting in daytime fatigue. The applicant’s issues with sleep affect her ability to carry out a regular routine as she does not wake up at a regular time if she slept poorly the night before. I find this would interfere with the applicant’s ability to carry out a regular routine in her activities of daily living.

47For the reasons noted above, I do not find Dr. Ali or Ms. Cagampan’s CAT assessments persuasive. In addition, I find Dr. Ali’s second report addressing the applicant’s entitlement to post-104 IRBs supports that she has a marked impairment in activities of daily living. Dr. Ali’s report dated November 26, 2020, notes that the applicant is capable of doing her activities of daily living but on an irregular basis, with pacing and the need for a couple days off afterwards due to exacerbation of pain.

48I find the number of the applicant’s limitations in the various activities of daily living and the degree in which she is restricted more compatible with a marked versus a moderate impairment. Overall, I find the applicant’s accident-related psychological impairment significantly impedes useful functioning in her daily activities.

SOCIAL FUNCTIONING

49I find the applicant has a marked impairment in social functioning as a result of her accident-related psychological impairment.

50According to the Guides, this area of functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords or bus drivers. It is not only the number of aspects in which social functioning is impaired that is significant, but also the overall degree of interference with a particular aspect or combination of aspects.⁷

51Dr. Levitt’s CAT assessment concluded that the applicant has a marked impairment in social functioning. The doctor notes that the applicant’s relationships with her family members and partner have been strained because of her persistent anger and hostility. The applicant has frequent verbal altercations with loved ones. Despite the applicant’s behaviour, her family and her partner tolerate her despite her temperamental and unpredictable behaviour. Dr. Levitt’s assessment also notes that the applicant is unable to empathize with others post accident. In addition, waiters, fast food staff and other drivers have been victims of the applicant’s outbursts. Dr. Levitt’s report also notes that the applicant sees friends on a limited basis and often cancels because of anxiety and her mood. I find Dr. Levitt’s conclusion more consistent with the medical evidence before me and it was also supported by Dr. Pailing’s CNRs and reports and the applicant’s partner’s testimony.

52For example, the report of Robert Tyndall, OT, dated July 4, 2016, notes that the applicant socially isolates more often than not, she has mood swings and is easily angered. Further, Dr. Pailing’s CNRs from January to December 2017 reflect several instances where the applicant reports problems with anger, irritability, being snappy, and having no filter. They also note the applicant is irritated by noise and commotion and is sad about the quality of her life post-accident. The applicant’s partner testified about the changes in his relationship with her post-accident. They fight often, she provides ultimatums and they breakup or she will not respond to his text messages for days. He testified that he has stuck by her because he loves her, but he now feels like he is walking on eggshells. The applicant also testified that she now avoids her son, who no longer lives with her because she cannot deal with him. She also will withdraw from people and socially isolate. She has tried to do things but does not find pleasure in them anymore.

53The respondent argues that the applicant has a mild impairment in this sphere because she has been cooperative and pleasant with assessors, has maintained relationships with her family members and partner, still meets the odd friend for coffee and has attended social functions post-accident. As already noted, I find Dr. Ali’s assessment lacking in detail and analysis. Further, the doctor overly relied on the assessment of Ms. Cagampan which I do not find persuasive. The basis for Dr. Ali’s finding in this sphere was Ms. Cagampan’s assessment which noted that the applicant was pleasant and cooperative with her and was able to interact with the store cashier. However, Ms. Cagampan’s report noted that the applicant became irritated after she purposely left her standing in the grocery store for five minutes. In addition, during the situation assessment Ms. Cagampan played a distressed mother and the applicant lacked the ability to calm and validate. In my view, I do not find this behaviour compatible with a mild impairment.

54I find the evidence supports that the applicant’s social functioning has significantly changed post-accident as she is now bitter, angry, confrontational, anxious, and depressed, which has had more than a mild impact on her relationships and social functioning. Further, the evidence does not support that the applicant had any significant challenges in social functioning pre-accident. Consequently, I find that the applicant’s overall impairment level in this sphere is more compatible with a marked versus mild impairment.

ADAPTION

55I find the applicant has a marked impairment in adaptation as a result of her accident-related psychological impairment.

56The Guides define impairment in adaptation as the repeated failure to adapt to stressful circumstances, in the face of which “the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate or having difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.”⁸ By definition, impairment in adaptation affects the ability to function across all activity areas. Regarding activities of daily living, their quality is judged by their independence, appropriateness, effectiveness, and sustainability.

57As I have already highlighted, I have determined that the applicant has a marked impairment in activities of daily living and social functioning. Further, the applicant has not been able to return to work post-accident because of her physical and psychological impairments. I agree with Dr. Levitt that the applicant’s limitations would carry over into her ability to adapt in the workplace.

58Dr. Levitt’s report supports that the applicant faces everyday life with considerable family support. As highlighted above the applicant struggles to carry out many of her activities of daily living consistently and efficiently. Further, she engages in very little useful activity on her own and needs to be prompted to do things. The medical evidence supports that the applicant cannot endure sustained activity and deteriorates quickly because of depression and fatigue. Further, she does not tolerate stress well and deteriorates emotionally as she isolates and withdraws. Dr. Levitt opined that the applicant’s behavioural outbursts would be inappropriate in public and would not be tolerated in a work like setting. Further, the applicant would be unable to tolerate ordinary stressors at work. I agree with Dr. Levitt and find the applicant has a marked impairment in adaptation as a result of her accident-related psychological impairment.

59The respondent relied on the CAT assessments of Dr. Ali and Ms. Capangam which determined the applicant has a moderate versus marked impairment in this sphere. As I have already indicated I do not find these assessments persuasive.

60In addition, Dr. Ali’s second assessment done eight months later supports that the applicant has a marked impairment in adaptation. The doctor’s report notes the following:

Today, four years post-accident, she presents as quite deteriorated compared to my last assessment with her. She presents as emotionally frail with a low threshold for decompensation. She is able to do tasks within the capacities of ADLs and IADLs, as summarized above, but on an irregular basis and with pacing and requirements for a couple days off due to complaints of pain exacerbation. Her emotional, cognitive and physical endurance are all compromised even for those activities. Performance of higher-level activities, such as in a vocational setting, that is sustainable in the long-term, with regular attendance and reliable performance, is highly unlikely.

61In my view, the above-noted description of the applicant supports that she has a marked versus moderate impairment in adaptation. Since I have determined that the applicant has a marked impairment in three spheres, she meets the threshold for CAT impairment. However, for clarity I will address the remaining sphere.

CONCENTRATION, PERSISTENCE AND PACE

62I find the applicant has a marked impairment in concentration, persistence, and pace.

63The Guides define this sphere as having the ability to sustain focused attention long enough for the timely completion of tasks commonly found in work settings. Deficiencies in concentration, persistence and pace are best noted from previous work attempts or from observations in work-like settings. The Guides specify that psychological tests are useful in assessing intelligence, memory, and concentration. Frequency of errors, the time it takes to complete a task and the extent of which assistance is required to complete a task.

64Dr. Levitt opined that the applicant has a marked impairment in this sphere, whereas Dr. Ali assigned a mild impairment rating. The Guides specify that psychological tests are useful in assessing intelligence, memory, and concentration.

65I find Dr. Levitt’s impairment rating is supported by Dr. Pailing’s CNRs and reports. Dr. Pailing diagnosed the applicant with a concussion/mild traumatic brain injury as a result of the accident. I find the applicant has consistently reported problems with concentration and memory post-accident as she has described problems finding words and forgetting things and assessors have observed her having difficulty in expressing herself. The respondent challenged Dr. Pailing’s concussion diagnosis because the ambulance call report and hospital record from the date of the accident noted that the applicant did not report that she lost consciousness as a result of the accident. Dr. Pailing acknowledged this fact in a few of her reports and testified that there does need to be a loss of consciousness to diagnose a concussion. Further, the applicant’s reported symptoms post-accident support that she more than likely suffered a concussion as a result of the accident and that her pre-existing issues made her more vulnerable. Based upon the evidence before me, I accept that the applicant suffered a concussion as the mechanics of the evidence support that this was a head on collision at medium speed and that the airbags deployed.

66The evidence supports that the applicant has required frequent accommodation in the various assessments she has attended post-accident because of fatigue, and her inability to concentrate and persist in carrying out tasks without deteriorating. Although she can complete some of her activities of daily living and housekeeping and home maintenance tasks she does so inconsistently and does not complete tasks in a timely manner. Dr. Pailing authored a neurocognitive report dated November 14, 2017, which tested different aspects of the applicant’s memory and processing abilities. This assessment was broken up into three sessions to allow for the applicant’s participation. Dr. Pailing’s assessment found significant weakness in auditory working memory, speed of comprehension for short sentences and cued recall of verbal information following a long delay. Test results also revealed that the applicant was impaired in her bilateral motor speed and right-hand dexterity.

67The respondent submits that the applicant has a long history of cognitive deficits dating back to 1987 when she had brain surgery. The applicant required accommodation with reading at college and Dr. Ali’s document review in her report references a note that indicates that she did not remember the births of her two children. The applicant testified that she had overcome these challenges as she completed her university degree without accommodation. Further, she was able to juggle working full-time, attending night courses and being Chair of her Union, all while being a singe mom. I find the applicant’s brain surgery significantly pre-dates the accident. Further, I do not find that the medical evidence supports that she had any significant cognitive deficits in the years before the accident. In addition, in determining that the applicant had a mild impairment in this sphere I find Dr. Ali applied too much weight to the brain surgery as being the cause of the applicant’s current limitations. As already noted, despite any limitations the applicant may have had pre-accident, I find she was functioning at a much higher level.

68I find that the applicant’s chronic pain, depression, anxiety, and cognitive deficits has resulted in a marked impairment in concentration, persistence, and pace.

Is the applicant entitled to an award under s.10 of Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?

69The applicant is not entitled to an award.

70Regulation 664, R.R.O. 1990 ( Regulation 664) states that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

71The applicant’s submissions on the award issue were insufficient as she did not refer to any evidence to support that the respondent’s conduct is worthy of an award. The applicant has not met her onus in proving on a balance of probabilities that the respondent unreasonably withheld or delayed payment of benefits. Therefore, the applicant is not entitled to an award.

ORDER

72For all of the above-noted reasons, I find:

(i) The applicant sustained a CAT impairment as a result of the accident.

(ii) The applicant is not entitled to an award.

Footnotes

1. 1Issues 2 and 4 were withdrawn as both parties agreed that if it is determined that the applicant sustained a CAT impairment, she would be entitled to the OCF-18 for dental services.
2. 3Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22
3. 4American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th edition, 1993, Ch.14.7: Mental and Behavioural Disorders.
4. 5Ibid, pg. 301, Table 1
5. 6Guides, p. 14/294.
6. 7Guides, p. 14/294
7. 8Guides, p. 14/294
8. 2Anderson v. Flying Saucer Drive-In Ltd., 2009 Carswell Ont 5139.