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:
Mirella Rao
Applicant
And
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jeffrey Shapiro, Vice-Chair
APPEARANCES:
For the Applicant:
Kaitlyn MacDonell, Counsel
For the Respondent:
Paul Omeziri, Counsel
Court Reporter:
Alyssa Sega
HEARD:
By Videoconference on June 7-11 and 14-16, 2021
OVERVIEW
1On April 5, 2016, the applicant (“M.R.”) was involved in an automobile accident. That subject accident’s effect on M.R. is greatly complicated by the fact that M.R. was still recovering from an August 12, 2015 incident, just eight months prior, which left her with a concussion and unable to work. In fact, the subject accident occurred as M.R. was driving to her first workday since that prior incident.
2M.R. applied for, and Wawanesa paid, medical expenses and an Income Replacement Benefit (“IRB”) pursuant to the Schedule1. When Wawanesa found that M.R. was was not catastrophically impaired, stopped the IRB, and denied her claim for other medical benefits, R.M. appealed to this Tribunal. The matter proceeded to a hearing before me. I find M.R. is not catastrophically impaired or entitled to the ongoing IRB but is entitled to one of the four treatment plans.
ISSUES
3The parties agreed that the issues to be decided are:2
Has the applicant sustained a catastrophic impairment as defined by the Schedule?
Is the applicant entitled to an income replacement benefit of $400.00 per week from April 25, 2018 to date and ongoing?
Is the applicant entitled to $4,070.13 for psychological services, proposed by Fox Psychological Services, in a treatment plan/OCF-18 (“plan”) dated May 14, 2018?
Is the applicant entitled to $5,887.50 for In-Home social work services, proposed by Functionability Rehabilitation Services (“Functionability”), in a plan dated May 11, 2018?
Is the applicant entitled to $1,800 for Driver Rehabilitation Therapy, proposed by Functionability, in a plan dated June 12, 2018?
Is the applicant entitled to $1,998.27 for a Speech Language Pathology Assessment, proposed by Functionability in a plan dated May 11, 2018?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that M.R. is not catastrophically impaired as defined by the Schedule (Issue 1) and is not entitled to the requested IRB from April 25, 2018 to date or ongoing (Issue 2). M.R. is entitled to the driver’s therapy (Issue 5) plus interest on the incurred amounts, but not the other treatment plans (Issues 3, 4 and 6).
BACKGROUND
5M.R. was a highly regarded and motivated foreign language teacher for 20+ years. While she had several pre-existing conditions such as fibromyalgia, hypertension and joint inflammation, and sporadic anxiety and depression, that caused her to experience some similar complaints that which are now at issue, her family doctor considered her generally healthy. M.R. worked through those issues.
6M.R.’s significant disabling difficulties began on August 12, 2015, when a large yard umbrella tipped over, striking her on the side of her head (“the umbrella incident”). I accept that she sustained a concussion with concussion symptoms – and her estimation of it leaving her at 40% of her pre-incident self appears correct, at least for a period of time. Light and noise bothered her, and she suffered depression, anxiety, and some cognitive issues and was unable to work. Her symptoms slowly improved. M.R. submits that by January of 2016 through the spring, she improved to 60-90% of herself, according to her different accounts she has provided, although the evidence conflicts with her account. By April 2016, with her doctor’s encouragement, she felt she was able to attempt to return to work on somewhat modified duties.
7Unfortunately, on April 5, 2016, as she drove to what was her first day back to work, she was involved in the subject rear-end accident. By all accounts the impact was relatively light, but I accept it did affect her.
8M.R. continued to work that day and began shadowing a teacher, but others noticed something was wrong, and by lunch M.R. just sat on a couch with others telling her to go home. Her pain increased following the accident, and M.R. described feeling that she had returned to “square-one” in her recovery from the first incident. M.R.’s husband described the accident’s effect on M.R. as “game-over”. Thus, while there is a dispute of what the actual physical impact the accident had on her brain and cognitive effect, I accept that it was an emotionally traumatic event. M.R. never returned to work.
9The symptoms from both events were similar and there was overlap, but M.R. feels they are different. The subject accident involved more of her neck and back, as she describes a forward-backward whiplash motion, and that her neck was a muscle ball tensed up. The umbrella incident was a concussion that she felt more in her head and side of her neck. M.R. feels the cumulative effect of the subject accident on the umbrella incident caused her a cognitive decline, depression, anxiety, lack of concentration, and a mix of worse and better days, such that she is not able to return to her pre-accident position or any employment. She describes the effect of the accident as affecting all aspects of her life, including a greatly reduced social life. She is on CPP disability, which started in 2020, retroactive to 2017.
10The extent of her recovery between the two events and the effect of the subject accident were major topics in the hearing. M.R. submits that with her improvement starting in January 2016 and her confidence that she could return to work on at least modified duties, it is only “but-for” this accident that she suffers a complete inability to work and suffers catastrophic level impairments. She relies on the evidence of Dr. Valentin, a neuropsychologist, to support her catastrophic ratings, and submits her findings are consistent with the other evidence presented at the hearing, including her family doctor and OHIP specialists whom she submits generally endorse her conditions.
11Wawanesa submits that M.R.’s evidence contradicts a finding of catastrophic level impairments or a complete inability to work, as there is no reliable evidence attributing her current condition to the accident, and that objective evidence points to her being better now than she was leading up to the subject accident. Also, validity testing shows the assessment of her post-accident conditions, particularly cognitive and psychological functioning, is compromised and the expert testing upon which the applicant relies follows an abnormal course. I, generally, agree.
Analysis
Issue 1: Is the Applicant catastrophically impaired?
12No. To be deemed “catastrophic”, an applicant must prove she meets one of the eight categories of impairment listed in the Schedule. The relevant definition is s. 3(2)(f), also known as “criterion 8”:
subject to subsections (4), (5) and (6), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to a mental or behavioural disorder.
13In simple terms, the Schedule uses a rating system from the AMA Guides to the Evaluation of Permanent Impairment, 4th ed. (“the Guides”). The Guides provide a method to rate the severity of a person’s mental and behavioral functioning in four areas of function (“domains”) on a scale of 1 to 5 (corresponding to none, mild, moderate, marked and extreme impairment, and expressed as Classes 1 through 5). The four functional areas are: (1) activities of daily living (“ADLs”), (2) social function, (3) concentration, persistence & pace, and (4) adaptation.
14The version of the Schedule that applies to this accident deems a person “catastrophically impaired” if they have a class 4 (marked impairment) or class 5 (extreme impairment) in severity in any of the functional areas.
15M.R.’s catastrophic assessor, Dr. Valentin opines that M.R. experiences class 4 ratings (marked impairment) in ADLs, social and adaptation, and a class 3 rating (moderate impairment) in concentration, persistence and pace. In contrast, Wawanesa’s IE assessor, Dr. Zielinsky, opines that regardless of the cause, M.R. has a class 2 rating (mild impairments, some useful functioning) in all domains.
16I find Dr. Zielinsky’s analysis persuasive for several reasons. First, I find that M.R.’s symptoms and general psychological state deteriorated after and as a result of the subject accident – perhaps even to catastrophic levels for a period. However, based on the several IEs in 2018 and 2019, the testimony from her, her friends and her husband, and numerous records, she appears to have improved from her low point following the accident to non-catastrophic levels.
17For instance, while her husband and two friends describe that she is not the same person as before the accident, they left no doubt that she maintains social relationships and generally functions, albeit not at the same level as before. Likewise, by all accounts, while there are specific activities she needs assistance with, she is independent in her self-care and most other activities of daily living.
18Likewise, the surveillance evidence showed M.R. driving her mother to medical appointments, shopping with friends socially, and grocery shopping. Other reports revealed M.R. is also the primary caregiver to her sick sister. She did not return to treatment with Ms. Singh or declined Dr. Stroganova’s referral to an outpatient mental health group, and then attended other treatment, but discounted it as she is “very busy”.
19Second, M.R.’s treating physicians, i.e., Drs. Ranalli, Shapero, and her two family doctors (i.e., the current one and retired one), all describe headaches, fibromyalgia, and various symptoms possibly from concussions, but none describe catastrophic level functional loss in any domain.
20Third, the psychological and neuropsychological and cognitive testing from the various assessors does not point to a marked impairment; rather, they point more likely to mild impairments, and perhaps less given the validity concerns, discussed below.
21Fourth, as for Dr. Valentin’s report, I do not accept her conclusion on the catastrophic rating for several reasons. The ratings strike me as an outlier to the other testing, her examination lacked meaningful validity testing, and is generally inconsistent with the other available information, such as the points above.
22In terms of validity testing, Dr. Valentin’s opinion relied on unusually limited validity testing, particularly in a medical-legal context, using only the Ray 15-Item Test. In fact, several witnesses and reports all question the effectiveness of that test to provide reliable validity measures. M.R.’s validity measures are particularly important as several assessors, including Dr. Jovanovski and Dr. Zielinsky (who used a slightly more sophisticated version of the Ray Test), found significant issues with validity and the inaccuracy of self-reporting during their assessments.3 Dr. Jovanovski also pointed out that M.R.’s performance in cognitive testing with different assessors at different times showed unexpected inconsistencies, such as her scoring worse in more recent tests, despite more time have elapsed since the accident. Dr. Jovanovski opined that with the passage of time, her scores should have stabilized or improved. I find Dr. Jovanovski’s observation persuasive given the validity testing concerns and that non-medical evidence showed that M.R.’s overall function has improved since her lows following the subject accident.
23Dr. Valentin’s finding of marked impairments across three of the four domains also seems at odds with testimony that M.R. currently maintains active social relationships with many of her friends or is a caretaker for another family member. Again, even if I accept that she doesn’t initiate those social interactions as she did prior to the accidents and they are somewhat diminished, those interactions are not class 4 impairments. Covid restrictions also appear to have artificially reduced socialization, rather than her impairments, but the evidence established she maintained social contacts even throughout Covid.
24Finally, I found Dr. Zielinsky’s report and testimony persuasive. While he found validity issues on testing and inaccuracies in self-reporting, he took those to indicate symptom magnification, but not malingering, and thus still attempted to provide a fair assessment including taking a generous approach to causation for purposes of the catastrophic rating – and I believe his basic approach was reasonable. I accept that as of his May 13, 2019 assessment, M.R. did not have a Major Depressive Disorder, but rather Adjustment Disorder with Depressed and Anxious Mood and Specific Fear, Automobile-Related, Passenger Type, so that the only new diagnosis was automobile-related fear. His analysis as to the impairment rating being relatively mild – i.e., some but not catastrophic impairment – fits with the evidence.
Issue 2: Is R.T. entitled to an IRB?
25No. As M.R. is seeking an IRB after 104 weeks (“post-104”), s. 6 provides a more stringent test than applied during the first 104 weeks. For post-104 IRBs, M.R. must establish that “as a result of the accident, [she] is suffering a complete inability to engage in any employment…for which he or she is reasonably suited by education, training or experience.”4
26From my perspective, while it’s not clear by a preponderance of the evidence that M.R. currently suffers a “complete inability” from a combination of the two events and her underlying conditions, M.R. has not established that her current inability is “as a result of the accident.”5
27M.R.’s overall submission she is that her post-accident impairments are, in fact, as a result of the subject accident. She submits (1) she was as much as 90% recovered from the umbrella incident, (2) she sustained a significant concussion in the subject accident that permanently aggravated those remaining prior symptoms, and so (3) her current problems have been caused by the subject accident. However, the evidence does not support that perspective.
28First, I am not persuaded that M.R. was nearly 90% recovered from the umbrella incident. As Dr. Zielinsky notes, while M.R. told him “she had no emotional issues, no cognitive problems, no sleep disturbances and only had lingering headaches…” pre-accident, her self-reported history was contradicted by the medical brief, information from co-assessors, and M.R.’s questionnaire filled out leading up the accident, which “suggests [M.R.] remained symptomatic from the physical and emotional point of view prior to the accident.”
29I note that while the parties assumed M.R. suffered a concussion in the umbrella incident, it’s unclear if M.R.’s symptomatic presentation that Dr. Zielinsky discussed was directly driven by an unresolved concussion, or a combination of M.R.’s physical and emotional impairments, overlaid on her prior fibromyalgia and other conditions. The evidence generally points to the latter, including that her treating neurologist, Dr. Ranalli, saw her on January 15, 2016 specifically to investigate a “head concussion” but did not treat her for one. He noted current complaints of headaches, left ear pain, and neck soreness, but a normal exam. While he diagnosed “post-traumatic headache”, he felt she was being affected by medication overuse response, a similar observation made by Dr. Shapero, her pain specialist, who saw her after the subject accident.
30Second, given the overall evidence and opinions on concussions, I accept that this accident did affect M.R. more than would have been expected due to her still being symptomatic from the umbrella incident, and that M.R. likely suffered a mild second concussion. However, the evidence points to it being mild from a physiological point of view and seems to have resolved on its own.
31Thus, I accept that the general perspective on concussions provided by the OHIP treating physicians, Drs. Ranalli and Shapero, and Dr. Jovanovski’s specific opinions of what occurred in this case. Dr. Ranalli testified that a whiplash injury with a sharp back and forth movement, even without a head-strike, could cause a concussion, and if so, it would cause an effect cumulative to a prior concussion, and could generate its own headaches or increase prior ones. Both Drs. Ranalli and Shapero generally opined, however, that typically, but not always, concussions resolve on their own.
32Dr. Jovanovski opined it’s unlikely but “possible” that M.R. sustained at most an extremely mild one, but even in that case, it really would not have had much effect, as it would not have affected her for long, and she would have recovered, citing metadata studies of concussions without a serious traumatic brain injury.
33Also, I accept Drs. Ranalii and Shapero’s opinions that the medication overuse syndrome was causing or contributing to her headaches. Certainly, M.R.’s emotional reaction to the accident understandably played a significant role.
34In contrast, I found the perspective of Dr. Thirwell, a neurologist and neuropsychologist who treated M.R. for sleep issues, did not fit with the evidence. She opined that most automobile accidents cause concussions and thus M.R. almost certainly sustained one in the accident - even as light as the collision was. She felt that even a small concussion is much more serious following an untreated concussion, and that without treatment concussions get worse over time and generally don't heal on their own. Dr. Thirwell did note that it can be hard to tease apart an emotional response to trauma from a concussion.
35Another issue arose with Dr. Thirwell’s testimony. She was called by Wawanesa, apparently because her September 10, 2016 consultation note does not mention the subject accident at all and only refers to a "history of PTSD concussion in 2015" and suffering from fatigue, generalized pain, and non-restorative sleep.6 Yet, during her testimony, Dr. Thirwell referenced the subject accident without being prompted and was emphatic that it contributed to M.R.’s presentation. After further questioning on why her testimony was inconsistent with her records, Dr. Thirwell explained that after being contacted by Wawanesa’s counsel, she spoke with M.R.'s counsel, seeking clarification of why she was being summoned, and during that discussion, learned of the subject accident.
36I find the circumstances of the discussion greatly weakens her testimony. First, the doctor offered a different opinion based on a new factual history provided by M.R.’s counsel and without documenting it (e.g., via a supplementary report). Second, counsel did not disclose this unusual event to opposing counsel. Third, while a “participant expert” is not required to take an expert’s duty oath and while I understand that a doctor intends for the wellbeing of their patients, my review of doctor’s conflicting evidence overall leads me to assign less weight to it.
37Finally, I find the submission of M.R.’s counsel that the circumstances should not cause me to give less weight to the testimony because there is “no property in a witness” and Law Society of Ontario Rule 5.3.-1 allegedly permits the conversation, misses the point for two reasons. First, simply because a conversation may be technically permitted with a witness does not always make it ideal or shield it from affecting weight. Second, the Rule does not directly deal with the situation that unfolded. That Rule provides “a lawyer may seek information from any potential witness…but the lawyer shall…take care not to subvert” any evidence. While not directly “subverting” evidence, the lawyer was not seeking information from the witness, but ultimately provided significant, substantive information to the witness with a net effect of the doctor providing conflicting evidence. While counsel did not initiate the conversation and the doctor’s call placed her in a difficult situation, the better approach would be to have immediately disclosed the conversation to opposing counsel. Under the circumstances, my consideration of Dr. Thirwell’s evidence is taken with care.
38Thus, I accept Dr. Thirwell’s general point that concussions can have a cumulative effect and that it’s difficult to tease an emotional response to trauma vs. a concussion (which I find more likely to be in play in this case), but I assign less weight to the rest of her testimony in the circumstances of this case.
39Third, as I have referenced above, and below, by April 2018, M.R.’s overall function actually appears a bit better then then immediately prior to the accident.
40For instance, the IE assessments in mid-2018 generally opined that there were no significant accident-related impairments. I note that M.R.’s own July 13, 2018 Psychovocational Medical Assessment Report by Dr. Sheer casts doubt on M.R. meeting the complete inability test and describes M.R.’s state at the time of the assessment as similar to her state on the day of the subject accident when she was attempting to return to work from the umbrella incident, in that it was an optimistic return despite symptoms rather than after a full recovery.
41Dr. Sheer wrote M.R. “likely suffered serious, permanent impairment vocationally”. While “likely” itself is equivocal, his analysis also equivocally states, “Ms. Rao presents well. Even though she appears possibly fit to return to certain duties, there is no guarantee that she would not re-injure herself or suffer additional injury as a result of an increased workload.” Thus, his report suggests that she might possibly be able to return to work – i.e., she does not suffer a complete inability – but seems to be describing her condition as it was before the subject accident occurred.
42Finally, while many witnesses discussed M.R.’s function or impairments, most of those same witnesses acknowledged that they could not or did not offer opinions as to causation tying her current condition to the accident.
43For example, M.R.’s family doctor, Dr. Chandrakumar, who took over the practice in March 2018, treated M.R. for a variety of conditions, including her fibromyalgia and the accident, but as she did not know M.R. prior to the accident, she was not able to offer a confident opinion as to what part of M.R.’s symptoms appeared to be as a result of the umbrella incident versus the subject accident. She felt that it seems M.R. had a concussion in both events, and although there wasn’t a formal concussion diagnosis in the subject accident, it seems to have exacerbated the umbrella incident.
44Similarly, Mandeep Singh, a psychological associate, in a May 2017 assessment, diagnosed M.R. with severe anxiety and depression and that she suffered “major depressive episode, single episode, moderate specific phobia”7 from this accident, but did so without having much of a file to review and relying almost exclusively on M.R.’s self-reporting. In fact, Ms. Singh seemed unaware that a concussion had been diagnosed in 2015 following the umbrella incident and acknowledged that she would have probed more into that concussion had she been aware of it. When presented with records showing that depression and anxiety started after the umbrella incident, she testified that would change her opinion and that instead of describing the depression as “single episode,” she would diagnose “chronic.” In terms of causation, she provided that the specific phobia of driving would not be umbrella related, so that would stay the same, but she was less clear on the other diagnosis. Given the unreliable history provided to her, Ms. Singh’s diagnosis provides little help in terms of causation.
45M.R. presented the testimony of two colleagues/friends and her husband. While they described a personality change after the umbrella incident, and to varying degrees some change following the subject accident, their more current descriptions describe function equal to or greater than that at the period leading up to of the subject accident.
46Other witnesses, such as Darcy Roza, a speech-language pathologist, advised that determining causation is not within her practice, while Dr. Shapero was focused on treatment not causation, and Dr. Ranalli only saw her before the subject accident.
47Wawanesa submits that Dr. Valentin’s initial April 30, 2018 report shows what Dr. Valentin really feels about the accident. I agree. Dr. Valentin’s first report is heavily focused on the umbrella incident as the cause of M.R.’s issues and largely glosses over the accident as a minor event in M.R.’s presentation. Similarly, as discussed above, Dr. Thirwell examined M.R. after the subject accident, but her report only mentions the prior umbrella incident.
48In summary, I find the overall evidence established the subject accident temporarily exacerbated M.R.’s symptoms, but by the time of the many assessments occurring in mid-2018, her function returned to pre-accident levels or better when she was ready to attempt a return to her employment. Thus, while it’s not clear that M.R. suffers a “complete inability” to engage in any employment for which he or she is reasonably suited by education, training or experience, I am not persuaded that her remaining functional impairments are “as a result of the accident.” She appears to have returned to post-umbrella, but pre-accident impairment levels – and in fact improved from those levels.
Issues 3-6 -Treatment Plans
49For an applicant to be entitled to a treatment plan under s. 15 and 16 of the Schedule, she must show that the plan is reasonable and necessary as a result of the accident.
50Regarding issue 3, the $4,070.13 for psychological services, I find it is not reasonable and necessary as the plan itself purports to be for the August 12, 2015 umbrella incident, rather than the subject accident. That does not appear to be a typo as (1) the plan endorses in its “Part 7” that M.R. had no prior condition which could affect her response to treatment, and (2) the plan states that it was based on the April 30, 2018 report of Dr. Valentin which relates to the umbrella incident.
51Regarding issue 4, the $5,887.50 for In-Home social work services, I find it is not reasonable and necessary as the plan does not list the date of accident and also relates to Dr. Valentin’s April 30, 2018 report.
52Regarding issue 5, $1,800 for Driver Rehabilitation Therapy, I find that it is reasonable and necessary. While M.R. may be driving, she testified to her fear of driving, Ms. Nigris, her colleague, identified M.R.’s hesitancy to drive, and several assessors, including Dr. Zielinsky found driving related phobia.
53Regarding issue 6, $1,998.27 for a Speech Language Pathology Assessment, I don’t find it reasonable and necessary as such impairments were not identified by the other assessors, Ms. Roza did not opine on causation, and there is no clear evidence that such impairments are related to this accident.
Issue 7 - Interest
54To the extent that the driver therapy treatment plan was incurred, M.R. is entitled to interest under s. 51 of the Schedule.
Order
55M.R. is entitled to the driver’s therapy (Issue 5), plus interest on any incurred amounts.
56M.R. is not catastrophically impaired as defined by the Schedule (Issue 1) and is not entitled to the requested IRB from April 25, 2018 to date or ongoing (Issue 2). M.R. is not entitled to the treatment plans identified in Issues 3, 4 and 6.
Released: May 12, 2022
___________________________
Jeffrey Shapiro
Vice-Chair
Footnotes
- Statutory Accident Benefits Schedule - Effective September 1, 2010 (O. Reg. 34/10)
- M.R. withdrew issue no. 6 as listed in the July 14, 2020 Case Conference Order.
- To be clear, the other assessors did not interpret validity concerns as a sign that M.R. was malingering but did find the testing underestimates her true abilities or overstates her impairments.
- Several factors inform the analysis, including suitable employment, training and education, comparable wages, any attempts to return to work, any disabilities preventing a return and whether a return to work is detrimental to recovery. L.P.C. v Aviva Insurance Canada, 2020 CanLII 87978 (ON LAT). During the first 104 weeks, an applicant need only establish, that as a result of an accident, they suffer “a substantial inability to perform the essential tasks” of his or her pre-accident employment.
- Causation under the Schedule uses the “but for” test, meaning the subject accident does not need to be the only cause, or even a major cause, but only a necessary cause. A.C. v Aviva Insurance Canada, 2020 CanLII 103675 (ON LAT), at para 38 (Dec. 17, 2020)
- Joint Hearing Brief, Tab 21, p. 867.
- While she used the Ray 15 test for validity during the assessment, she now uses a more robust validity test.