Citation: Adams v. Federated Insurance Company of Canada, 2022ONLAT 20-009293/AABS

Licence Appeal Tribunal File Number: 20-009293/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:

Yvonne Adams

Applicant

and

Federated Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Chloe Lester

APPEARANCES:

For the Applicant: Yvonne Adams, Applicant Laura Hillyer, Counsel James Page, Counsel

For the Respondent: Analia Burgos, Counsel Amanda Lennox, Counsel Nigel Crowe, Counsel

Court Reporter: Anthony Ng

HEARD: by Videoconference: February 1-8, and 16, 2022

REASONS FOR DECISION

BACKGROUND

1The applicant, Ms. Adams, was a lively retiree living a full life of social activities with family and friends, attending church and bible study, volunteering at a nursing home and food bank, shopping day trips, and vacations. She was described as never being at home because she was so busy with activities.

2On September 19, 2016, Ms. Adams was involved in a serious automobile accident when her motorized scooter was unexpectantly struck by a dump truck at an intersection and dragged approximately fifteen (15) feet. As a result of the accident, Ms. Adams suffered a traumatic brain injury (TBI). She sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016)¹ and received both, medical and rehabilitation benefits, and an in-home personal support worker to assist her with her activities of daily living. It did not take long before Ms. Adams exhausted the non-catastrophic benefit limits. Ms. Adams applied to the respondent, Federated Insurance, to be classified as being catastrophically impaired so that she could have access to a greater benefit funding limit.

3Ms. Adams was denied being classified as catastrophically impaired by Federated Insurance and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUE

4Is Ms. Adams catastrophically impaired because of the traumatic brain injury she sustained in the September 19, 2016 car accident?

RESULT

5Ms. Adams is not catastrophically impaired.

LAW

6To be designated catastrophically impaired because of a TBI, section 3.1 (1) 4 of the Schedule states that Ms. Adams must meet two criteria:

i. The injury shows positive findings on a computerized axial tomography scan, a magnetic resonance imaging or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly.

ii. When assessed in accordance with Wilson, J., Pettigrew, L. and Teasdale, G., Structured Interviews for the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale: Guidelines for Their Use, Journal of Neurotrauma, Volume 15, Number 8, 1998, the injury results in a rating of,

A. Vegetative State (VS or VS*), one month or more after the accident,

B. Upper Severe Disability (Upper SD or Upper SD*) or Lower Severe Disability (Lower SD or Lower SD*), six months or more after the accident, or

C. Lower Moderate Disability (Lower MD or Lower MD*), one year or more after the accident.

7The parties agree Ms. Adams met criterion i. The issue is whether she meets criterion ii.

8In determining whether the TBI meets the designation of catastrophic impairment, section 45 (2) of the Schedule states that the assessment or examination shall be conducted only by a physician or neuropsychologist. They may be assisted by other regulated health professionals as required.

ANALYSIS

How the Guides Are Used

9The Wilson, J., Pettigrew, L. and Teasdale, G., Structured Interviews for the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale: Guidelines for Their Use, Journal of Neurotrauma, Volume 15, Number 8, 1998 (GOSE Guidelines and structured interview) is comprised of three sections.

1. Guidelines for the structured interview (the “Guidelines”)

2. An appendix with additional notes for the structured interview and definition of terms (the “appendix”)

3. The structured interview (the “GOSE questionnaire”)

10Based on the answers to the structured interview, the injured person is placed into one of the eight scales.

Scale	Results in
1	Death
2	Vegetative State (6 months or more)	CAT
3	Lower Severe Disability (6 months or more after the accident)	CAT
4	Upper Severe Disability (6 months or more after the accident)	CAT
5	Lower Moderate Disability (1 year or more after the accident)	CAT
6	Upper Moderate Disability
7	Lower Good Recovery
8	Upper Good Recovery

11The higher you are placed on the scale, the more disabled the injured person is because of the TBI. The more disabled the injured person is, the more dependent he or she will be on someone to assist them.

12The Guidelines paper by Wilson et al. outlines the role and purpose of the Glasgow Outcome Scale. Key points are:

a. The Guidelines define the purpose and scope of the scale, areas of judgment, and other factors to consider;

b. The structured interview was designed to achieve greater objectivity and reliability in assigning an outcome category;

c. The purpose of the scale reflects disability and handicap; i.e. how the injury has affected functioning in major areas of life. The scale was “not intended to provide detailed information about specific difficulties faced by individual patients, but to give a general index of overall outcome”;

d. Some areas may involve an exercise in judgment when applying the scale, and they can be summarized into four rules:²

1. Disability due to head injury is identified by a change from pre-injury status. The scale is designed to assess changes and restrictions that have taken place as a result of head injury.

2. Only pre-injury status and current status should be considered. Current status includes problems and capabilities evident over the past week or so.

3. Disability must be a result of mental and physical impairment. If an injured person is capable of performing the activity but does not do it for some reason they are not considered disabled. You might need to ask a hypothetical question: what exactly is the injured person capable of even though they do not actually do it. You might need to probe with more questions, if the answer to a particular question indicates some difficulty in a particular area.

4. Use the best source of information available. In some cases, an injured person may lack insight and whenever possible interview a relative or close friend. Judgment/caution should be used when interviewing, as the injured person may deny psychological changes and the collateral interviews may overreport post-injury problems. The Guidelines recommend the complete GOSE questionnaire be administered because answers to later questions may indicate a need to re-evaluate the significance of earlier answers. An injured person may be considered capable of activities even if they have some difficulties with them.

13The Guidelines provide the framework that must be considered when answering each question in the GOSE questionnaire.

14A big area of debate between the parties is how much detail one must go into in determining the answers to the structured interview and whether the functional capabilities need to be carried out perfectly. Another area of debate is whether the Schedule allows an occupational therapist to fill out the GOSE questionnaire.

15Ms. Adams argues that the GOSE questionnaire needs to take into account the individual circumstances of the person whereas Federated Insurance argues that the GOSE questionnaire needs to be assessed as a high-level overview, a “quick and dirty assessment”. For example, in consideration of Question 2: Is Ms. Adams capable of preparing food, the parties and their respective assessors viewed this question in two different ways. As Ms. Adams has diabetes, her assessors answered this question in relation to whether she was making good choices in her eating habits and in line with the recommendations for her diabetes management. Federated Insurance’s assessors, however, reviewed this question in analyzing whether Ms. Adams is capable of eating simple meals including heating up already prepared food or making toast.

16Based on the Guidelines, I find the GOSE questionnaire was not intended to go into great detail. The purpose of the scale is clear: “it is not intended to provide detail information about the specific difficulties faced by individual patients, but to give a general index of overall outcome.”. This means assessors must contemplate the responses as a general index of overall capabilities and not in consideration of the specific details of the person’s individual circumstances.

17I find that in determining functional capabilities the activity does not have to be carried out perfectly. The Guidelines under section 2 and 4 help to clarify that point. In section 2, determining the injured person’s “current” status include problems and capabilities evident over the past week or so. This process involves averaging, taking a look at the injured person’s problems and capabilities and determining which is greater. In general, or if averaged, did the person have more difficulties in completing the task, demonstrating an inability, or more often than not, was the injured person was capable of completing the task. By expressing the “current” status in terms of “the past week or so” and that the injured person is “capable of activities…even if they are having difficulties with them,” there is no expectation of perfection. Difficulties, some periods of forgetfulness, minor errors, uncertainty, preferences, and concerns do not demonstrate incapability. Section 4 gives an example of how one may be considered severely disabled because they have specific problems with shopping or travelling, but later questions reveal the person has returned to work or social activities. The Guidelines dictate that “further consideration may indicate that such a person should be considered moderately disabled rather than severely disabled, that is, that they are capable of activities of independence outside the home, even if they have difficulties with them”. In other words, the GOSE questionnaire is written in such a way that if someone is capable of functioning in later questions, then the assumption is they are probably capable of completing the activities in earlier questions. The individual may not be as disabled as the assessor may have originally thought.

18Lastly, in both assessments, while a neuropsychologist completed an assessment within their expertise, neither actually filled out the GOSE questionnaire; instead, an occupational therapist completed it. The main difference in the way that the two assessments were conducted was that after the occupational therapist for Ms. Adams had completed her assessment and the GOSE questionnaire, she consulted on the questionnaire with the neuropsychologist, Dr. Belfry.³ With Federated Insurance’s assessment, the occupational therapist did not consult with the neuropsychologist. Federated Insurance argues that in the case of a TBI and in accordance with s. 45(2) of the Schedule only a physician or neuropsychologist can conduct an assessment or examination for catastrophic determination. Ms. Adams provided no argument regarding this.

19In accordance with the Schedule, I agree with Federated Insurance. An assessment for catastrophic impairment as a result of a TBI involves proving two criteria. As discussed above, it involves positive findings of intracranial pathology injury and meeting a threshold of lower moderate disability or higher when scored on the GOSE questionnaire. The responses to the GOSE questionnaire require judgement and insight into the TBI to determine whether the incapability stems from the effects of the TBI or from another impairment. Since an occupational therapist is only capable of assessing function, the questionnaire far exceeds the scope of their expertise. The occupational therapist’s assessment is useful for determining the function and capabilities in interpreting the GOSE questionnaire. However, it can only be used as an aid. The Schedule is clear that a physician or neuropsychologist (for a TBI) are the only medical disciplines capable of conducting an assessment or examination to determine catastrophic impairment.⁴ While a physician or neuropsychologist may reasonably require the assistance of another regulated health professional, such as an OT, a plain reading of s. 45(2) leads me to conclude that any such assistance must play at most a secondary role in an assessment that complies with this section.

Effects of the Head Injury

20With regards to the injuries caused by the car accident, the GOSE questionnaire and scales are to be assessed using the effects/impairments of the brain injury only.

21The parties largely agree that the following are the effects/impairments because of the TBI:

a. At a minimum, a mild traumatic brain injury with slowed cognition⁵

b. Headaches and reduced mobility

c. At a minimum, major depression disorder, recurrent episode, in partial remission and mild neurocognitive disorder due to TBI. ⁶

22Ms. Adams argues that the effects of the brain injury interplay with her pain complaints, depression, emotional dysregulation, and her cognitive dysfunction. Dr. Belfry testified that all these effects should be considered when answering the GOSE questionnaire. Dr. Tuff testified and agreed that pain conditions can impact your memory and since a TBI impacts brain function, her memory may be reduced. He also agreed that depression can be an additive component of cognitive abilities.

23I agree with the experts that when viewing the effects of the brain injury if the injuries cannot be excluded from the brain injury, it is reasonable to give the benefit of the doubt and attribute it to the brain injury.

The Structured Interview (GOSE questionnaire)

24As indicated above, the level of disability is determined by the answers to the GOSE questionnaire. The appendix helps to further define and provide the parameters/framework necessary to evaluate the injured person for each question. So, the physician or neuropsychologist ought to review the appendix before answering each of the questions.

25The following are the results and arguments for each of the questions in the GOSE questionnaire:

Consciousness

Question 1 – Is the head injured person able to obey simple commands, or say any words?

26Both parties answered yes.⁷

Independence in the home

27The appendix states that, for question 2, a person is considered disabled if they may need actual assistance with activities of daily living, may need prompting or reminding to do things or may require supervision because they would be unsafe otherwise. The appendix provides a real caution in interpreting dependency within the home, saying that many people receive assistance but do not depend upon it, that care or protection of others should be distinguished from dependency, and that many would benefit from assistance or have a real need for it but are again not considered dependent. Examples were given that preparing food would mean in a simple fashion and a minor domestic crisis would not entail the ability to manage the problem but the use of the telephone to report the problems or to summon help.

Question 2a – Is the assistance of another person at home essential every day for some activities of daily living?

For a “no” answer they should be able to look after themselves at home for 24 hours if necessary, though they need not actually look after themselves. Independence includes the ability to plan for and carry out the following activities: getting washed, putting on clean clothes without prompting, preparing food for themselves, dealing with callers, and handling minor domestic crises. The person should be able to carry out activities without needing prompting or reminding and should be capable of being left alone overnight.

28Ms. Adams’ assessors answer “yes” to this question.⁸ They state that she forgets to take her medication, no longer prepares food for herself as she has left the stove on, handled a knife in an unsafe manner and is a fall risk because of her balance issues. Due to her cognitive issues and fluctuating mood problems, the assessor opined that daily assistance is required as she constantly has friends, family, SPECTRA⁹, and Lifeline providing constant reminders, cues, check-ins and emotional support. Ms. Adams argues that she receives constant cueing and prompting from her family to complete tasks. She argues that her family members set up reminders on her phone, they call and text her several times a day, her niece often sleeps over on the weekend and her sister visits her frequently and prepares meals for her. Ms. Adams argues that the fact that nothing bad has happened does not mean she is not at a real risk for falls, unsafe behaviour and needing emotional support to lessen any impact of her depressive symptoms.

29Federated Insurance’s assessment determined the answer to this question is “no”.

30In my opinion, the appendix really reiterates how the answer to this question assumes a very low level of functioning. Both neuropsychologists agree that the list of activities in Question 2a is not an exhaustive list. I agree. The list of activities are examples of activities of daily living that one would have to complete for basic survival. It would be unreasonable to conclude that someone would be considered independent yet could not use the bathroom or feed themselves because it was not listed in the examples given in 2a. The point of question 2a is, can a person be left at home for 24 hours if necessary, can they take care of their basic needs in that 24-hour period and would they be able to react to callers and get help for a minor crisis, if needed. In order to answer “yes” for Question 2a, a person would have to rely on another individual, to be in their home, and it is essential for that person to be there to assist in some, meaning more than one, activity of daily living. Phone calls and text messages to ensure medication was taken or to verify how the person is feeling are not sufficient to render someone severely disabled. The level of function must be extremely low to meet this high bar in Question 2a. It involves an individual coming to the home every day to physically assist the person with the activities of daily living or to prompt them. Absent of a helper’s assistance the activities of daily living would not be completed. Again, perfection in completing the task is not necessary and should not consider the person’s individual circumstances. In general, can they survive 24 hours without assistance.

31The evidence demonstrates that Ms. Adams is capable of waking up every morning, bathing herself, although has difficulties with washing her hair, and getting herself dressed every day, but not in the same style as before. She now wears a lot of sweatshirts or loose clothing unlike before when she was more dressed up. She is capable of completing her laundry, although becoming increasingly difficult. She pays her bills and rent on time through telephone banking. She is capable of handling a minor domestic crisis as she dropped a glass on the floor and was capable of cleaning it up. She was able to even handle a major domestic crisis as she lit a candle beside her prayer table and forgot to blow it out. It lit the tablecloth on fire and Ms. Adams was able to put it out and call her family for help. During the occupational therapist assessments, Ms. Adams was able to answer the phone and record the information regarding a medical appointment, although with one small error, and was able to answer the door and receive a package. She can prepare simple meals, including cereal, toast and heat up prepared foods made by her sister, and she can feed herself and go to the bathroom. Ms. Adams also has reminders on her phone to take her medications and sometimes she does forget to take them, the majority were consumed.¹⁰ She is also left alone most of the time and is capable of being left alone overnight.

32Ms. Adams submits that the test should not be simply that something bad has not happened so she is independent in the home; rather, the test should be what would her independence look like if her family was not there to assist her. She asks me to consider that without the constant text messages, prompts, and reminders on her phone, that were set up by her family, where would Ms. Adams be? What would her health look like, with improper meals for her diabetes and possible mismanagement of medication and being a fall risk? I can appreciate those are significant and real concerns for Ms. Adam’s family and friends. However, the level of disability in determining independence in the home would require someone physically being in the home to assist them with some activities of daily living. This type of person would not understand that they are hungry and would require someone to prompt them to eat or to physically feed them. It would require someone to direct this individual to take their medications despite reminders on their phone, or that they never answer the phone or front door because of their inability to comprehend the possible questions or lastly, the person would not be able to recognize a need for assistance when a minor crisis occurs.

33This is not the level of dependency exhibited by Ms. Adams. There is no doubt Ms. Adams benefits from assistance, prompts, reminders, and regular text messages, but the appendix cautions to differentiate between the care and protection given by others and dependency. It also acknowledges that individuals may have a real need for assistance, but it does not mean they are dependent for the purpose of the GOSE.

Question 2b – Do they need frequent help or someone to be around the home most of the time?

For a “no” answer they should be able to look after themselves at home for 8 hours during the day if necessary, though they need not actually look after themselves.

34The appendix states that this implies that a relative who is caring for them cannot work.

35Ms. Adams’ assessors answered “yes” because she needs frequent help, her sister checks on her regularly through messages, calling her and coming by her home and she had a Lifeline for support.¹¹ Federated Insurance’s assessors answered “no” and argues the appendix really indicates that a person would not be able to work in order to assist the individual and that someone must be there with them for 16 hours of the day. It argues that Ms. Adams is not showing that level of disability.

36I agree with Federated Insurance. Ms. Adams is capable of being left alone for up to 8 hours during the day if necessary. The GOSE questionnaire indicates that they need not actually look after themselves, or that it does not mean that the person would not benefit from assistance or reminders but, if necessary, can the person be left alone for up to 8 hours. Ms. Adam can look after herself for up to 8 hours. Someone is not constantly at home with her that it makes it impossible for them to work. Ms. Adams asks me to consider that since her sister, Bridget, who is retired and lives across the street, constantly checks in on her and prepares meals for her, this is essentially the same as someone who cannot work. I appreciate that Ms. Adams’ sister, Bridget, goes above and beyond to assist her sister, checking in on her and alleviating Ms. Adams’ daughters in their familial responsibilities. There is no doubt that the car accident had an adverse impact on this family and the effects of the TBI have been difficult to manage. Yet, the high bar of dependency in this question requires a constant requirement for a caregiver to be in the individual’s home for multiple activities of daily living.

37When it comes to questions 2a or 2b, Ms. Adams argues that the unpredictable nature of her mood swings, potential fall risk because she sometimes forgets to ambulate properly with mobility aids, mishandling of a kitchen knife noticed in the occupational therapy assessment and increased depression put her in real risk of harm to herself. Ms. Adams argues that the Schedule does not require a real emergency to realize the risk to herself. I do acknowledge these are all real and valid concerns for Ms. Adams. Unfortunately, the Guidelines refer to a very narrow view of what should be considered “current status”. It states under section 2 that “current status” includes problems and capabilities evident over the past week or so. It cautions against using an assessor who was involved in the acute phases of recovery as they may have a more negative view of the individual but also cautions that if the person has made recent progress that the assessor should not be overly optimistic. The paragraph ends that “it is important to establish current capabilities independent of hope for future progress.” In the same light, the assessment should also be void of potential future risk. Ms. Adams is no doubt at risk for potential balance issues but has not fallen during the time she owned a Lifeline¹². She is also at risk for her diabetes to continue to worsen with poor eating choices, but again the GOSE questionnaire only considers the very basic of tasks, can she prepare a simple meal, can she eat it, can she look after herself unsupervised for a period of up to 8 hours and should only consider “current” capabilities. The answer to these questions is yes. Ms. Adams is not considered catastrophically impaired based on the responses to Question 2.

Question 2c – Was the assistance at home essential before the injury?

38The parties agree the answer is no.¹³

Independence Outside the Home

39The appendix adds that when answering questions 3 and 4, independence outside the home requires the ability to plan, to take care of money, and behave appropriately in public. It must be established if the person is actually capable of carrying out these activities, rather than whether they do or not.

Question 3a – Are they able to shop without assistance?

This includes being able to plan what to buy, take care of money themselves, and behave appropriately in public. They need not normally shop, but must be able to do so.

40Ms. Adams’ assessors answered “no”. She argues that she forgot her purse/money envelope in both assessments, she had to be prompted to retrieve it, she relies heavily on her family to grocery shop for her, and she does not behave appropriately as she gets easily frustrated and puts herself down when she does something wrong. She also adds that during Ms. Leimonis’ assessment she did not get all the grocery items on her list, added other items, and this is concerning because she is on a fixed budget.

41Federated Insurance’s assessors answered “yes”. Dr. Tuff testified in answering this question that it involves the ability to plan, get a few items from the store, pay for them, a functional ability to carry them to a taxi or Wheel-Trans and behave appropriately. He explained that the actions again do not have to be carried out perfectly, but the person must demonstrate that they have the functional and emotional capacity to complete the tasks. He testified that this question involves looking at when errors are made, how often are those errors and whether it prevents her from being successful at the task.

42I find in favour of Federated Insurance’s interpretation of this question. In reading the totality of the purpose and scope, the rules of judgement, and the appendix, Federated Insurance’s interpretation of question 3a is more in line with the Guidelines. Again, this is a high-level overview of capacity. In Ms. Leimonis’ assessment, Ms. Adams, even though not executed perfectly, made a list, omitted some items, but bought others that she recognized were on sale, had the functional ability to navigate the aisles, again not perfect, was able to pay for the items, and behave appropriately. I note that during Ms. Leimonis’ assessment Ms. Adams engaged in negative self-talk but it appeared that it did not prevent her from completing the task. Her family describes her as indecisive when she is at a store and Ms. Adams wonders whether she should wait for the item to go on sale; however, the question contemplates how she reacts and whether she is still capable of completing the task. From the evidence presented, it appears that more often than not she is still somewhat successful. In one assessment she forgot her purse and had to be prompted to retrieve it; in the other assessment, she remembered her purse but forgot the envelope of money that was given to her by the occupational therapist. In my opinion, the occupational therapists intervened by cueing Ms. Adams and we were not able to see how she reacted when she forgot the money. In reviewing whether forgetting her wallet is a real or frequent concern, Ms. Adams’ family testified, that there have been only two incidents when she forgot her wallet. Based on the testimony, it did not appear that Ms. Adams had any great reactions to forgetting her wallet. In the end, Ms. Adams testified that she has shopped for groceries on her own, used Wheel-Trans, and has been able to pay for groceries and get them home. In my opinion, Ms. Adams is capable of shopping without assistance and therefore is not rendered catastrophically impaired based on this question.

Question 3b – Were they able to shop without assistance before the injury?

43The parties agree the answer is yes.¹⁴

Question 4a – Are they able to travel locally without assistance?

They may drive or use public transportation to get around. Ability to use a taxi is sufficient, provided the person can phone for it themselves and instruct the driver.

44Ms. Adams’ assessors felt the answer is “no” resulting in an upper severe disability rating and designating her catastrophically impaired. Federated Insurance’s assessors answered “yes” to this question.¹⁵

45Ms. Adams argues that she has used Wheel-Trans, a supported form of transportation for disabled individuals, a few times to get groceries and for some medical appointments. She argues she has not used a taxi since the car accident. Ms. Adams argues that Wheel-Trans is not a taxi or a form of transportation contemplated under question 4a. She argues that Wheel-Trans provides a supported door-to-door service from the first accessible door to the destination and back. She argues that she is not capable of travelling locally without assistance because the ability to use a taxi involves safely getting in and out of a vehicle, which she claims she cannot. During Mr. Ford’s assessment, Ms. Adams forgot to use the brakes on her rollator, a form of a walker with a seat, and when she attempted to get into the taxi, her rollator started moving and she almost fell. Ms. Adams argues that it is unsafe for her to utilize a taxi.

46Federated Insurance argues that a person is capable of using a taxi if they can phone for it and instruct the driver. Mr. Ford testified that getting in and out of it safely is not a requirement to determine whether someone can travel locally without assistance but paying for a taxi would be. Yet, Dr. Tuff, neuropsychologist for Federated Insurance, testified that safety should be a consideration when travelling outside the home, but one should consider the frequency of events and the relative risk to the person. Dr. Tuff stated that the exercise is not purely quantitative but whether the person has the cognitive proficiency and capacity to do it. He testified that there does not have to be 100% success rate but more often than not whether they are safely travelling locally without assistance.

47I agree with Federated Insurance’s answer to this question. Ms. Adams can travel locally without assistance. Ms. Adams uses Wheel-Trans, which is a form of public transportation for disabled individuals. She is capable of arranging for transportation the night before and she understands that she needs to plan for more time when she uses Wheel-Trans because sometimes they pick her up earlier than expected. Ms. Adams has used Wheel-Trans for medical appointments and to pick up groceries. During Mr. Ford’s assessment, she called for a taxi, directed the taxi driver and understood he was not giving her back enough change. Also, when she called for a taxi to return home, she realized it was the same driver and gave him the exact change when she paid so that the driver would not try to sneak in a bigger tip than what was required.

48Ms. Adams argues that travelling locally would also involve safely getting in and out of the taxi, which she did not do during Mr. Ford’s assessment and locking her front door, which she has forgotten to do on several occasions. She also almost bumped into the grocery displays during Ms. Leimonis’ assessment and could not remember where Ms. Leimonis parked her black car. Federated Insurance acknowledges that this has happened on occasion but, again, argues that the actions do not have to be carried out perfectly.

49I again agree with Federated Insurance. The appendix reiterates that independence outside the home involves the ability to plan, take care of money and behave appropriately in public. The parties all agree that safety must be considered. The question is, can Ms. Adams travel safely outside her home and can she ambulate without falling and remember to lock her door? To answer that question, I will highlight some of the areas regarding the 4 rules of judgement in applying the GOSE questionnaire. One must consider, more often than not, is the person capable of the activity? If they are capable of performing the activity but do not do it for some reason, they are not considered disabled. Lastly, are they capable of activities outside the home, even if they have some difficulties with them?

50Ms. Adams is capable of locking her door, although sometimes she has forgotten the keys in her lock or forgotten to lock the door. Ms. Adams is capable of safely using a taxi. While she forgot to apply the brakes on her rollator a few times during both occupational therapy assessments, there were other times she remembered. She has used Wheel-Trans by herself to get to and from appointments and for groceries and there have been no reports of falls or issues ambulating. During both assessments, there were no issues with her behaving inappropriately in public. Overall, more often than not, Ms. Adams is capable of travelling locally without assistance and is not catastrophically impaired based on this question.

Question 4b – Were they able to travel without assistance before the injury?

51The parties agree the answer is yes.¹⁶

Work

52In both assessments, question 5 regarding work was bypassed because at the time of the accident Ms. Adams was retired.

Social and Leisure Activities

53The appendix highlights this question results in a quantitative vs. qualitative exercise because the main effect of a head injury on social and leisure activities tends to be withdrawal from activities. The analysis concerns how often they participated in social and leisure activities before the injury and how often they participate now.

Question 6a - Are they able to resume regular social and leisure activities outside the home?

They need not have resumed all their previous leisure activities, but should not be prevented by physical or mental impairment. If they have stopped the majority of activities because of loss of interest or motivation then this is also considered a disability.

54The parties agree that this is a quantitative analysis. The parties agree that if the injured person is not engaging in 100% of the pre-accident social and leisure activities then the answer to question 6a is no. The parties agree the answer to this question is no.¹⁷

Question 6b – What is the extent of the restriction on their social and leisure activities?

a. Participate a bit less: at least half as often before the injury.

b. Participate much less: less than half as often.

c. Unable to participate: rarely, if, ever, take part.

55Ms. Adams’s assessors state the answer is “c”: unable to participate and Federated Insurance’s assessors answered “b”: participate much less. Both parties agree that in answering the question there must be some sort of quantifiable figure¹⁸. Once an assessor has calculated the number of times the injured party used to participate in leisure and social activities before the accident and after the accident, the assessor is left with a percentage value. If the participation is a value between 50-99% then the answer is “a”.

56The problem arises when deciding between answers “b” and “c”. Because the Guidelines, appendix and GOSE questionnaire do not quantify the word “rarely,” the assessors are left to interpret what the word means. Neither party submitted a definition of the word “rarely” and relied on the explanations provided by their assessors.

57Ms. Leimonis, during her testimony, described the word “rarely” as 25%. She gave the example that if Ms. Adams attended church four times per month before the accident and currently attends once per month, that would fit her definition of “rarely.” Dr. Tuff and Mr. Ford interpret the word “rarely” to mean less than 5%.

58The plain reading of the word “rarely” means not often or seldom.¹⁹

59I find Dr. Tuff and Mr. Ford’s interpretation to be the more accurate representation of the word “rarely”. Interpreting the word “rarely” as meaning less than 5% would be in line with other synonyms being “not often” or “seldom”. In my opinion, Ms. Leimonis’ interpretation of “rarely” meaning 25% is too high. If someone were to attend a social activity 1 out of 4 events, then it creates a reasonable expectation or pattern. For example, individuals would reasonably see this person once a month at a weekly gathering. I cannot see the word “rarely” being characterized in a way that would create a reasonable expectation of seeing someone.

60Therefore, in this case, if the participation in leisure and social activities of the injured person is a value between 6-49% then the answer is “b”; 5% or less then the answer is “c”.

61Neither party quantified Ms. Adams’ social and leisure activities. Both parties had a general summary of the social and leisure activities before and after the accident and roughly calculated the percentage of activities she currently participates in.²⁰

62Based on the testimony/affidavit of the witnesses and information contained in the assessment reports I was able to quantify the number of activities Ms. Adams currently participates in. See Appendix A of this decision. Based on my calculations she currently participates in about 29% of the activities in comparison to what she participated in before the accident. This value is more in line with the response of Dr. Tuff and Mr. Ford. Accordingly, the answer to question 6a is “b”: participate much less, less than half as often, which results in an upper moderate disability. In this case, Ms. Adams is not catastrophically impaired based on this question.

Question 6c – Did they engage in regular social and leisure activities outside home before the injury?

63The parties agree the answer is yes.

Family and Friendships

64The appendix highlights that question 7 is specifically aimed at alterations in the relationships as a result of the head injury. The presence of a reported change in personality is not enough to classify the injured person as disabled. The change must be having an adverse impact on family and friendships.

Question 7a – Have there been psychological problems which have resulted in ongoing family disruption or disruption to friendships?

Typical post-traumatic personality changes: quick temper, irritability, anxiety, insensitivity to others, mood swings, depression, and unreasonable or childish behaviour.

65The parties agree the answer to this question is yes.

Question 7b – What has been the extent of disruption or strain?

a. Occasional – less than weekly

b. Frequent – once a week or more, but tolerable.

c. Constant – daily and intolerable.

66The appendix states that to answer the question as “occasional,” the psychological problems do not cause continuous strain, and gives an example of an occasional bad temper, but tends to blow over. To answer as “frequent,” problems are at least weekly and cause a strain on relationships, but regarded as tolerable. For example, temper outbursts at least once a week resulting in modifications of closeness of relationships.

67Dr. Belfry and Ms. Leimonis answered “b”: frequent which results in an upper moderate disability and Mr. Ford answered “c”: occasional, resulting in lower good recovery. With either answer, the results do not grant catastrophic impairment based on this question.

Question 7c – Were there problems with family or friends before the injury?

68The parties agree the answer is “no”.

Return to Normal Life

Question 8a- Are there any other current problems relating to the injury which affect daily life?

Other typical problems reported after head injury: headaches, dizziness, tiredness, sensitivity to noise or light, slowness, memory failures, and concentration problems.

69Both parties answered “yes”.

Question 8b- Were similar problems present before the injury?

70Both parties answered “no”.

CONCLUSION

71There is no doubt this accident caused a TBI for Ms. Adams and dramatically changed her life. Her abilities and life differ greatly from what it was before the accident.

72In summary, Ms. Adams’ assessors took an overly specific view of the GOSE questionnaire and answered each question contemplating every intricate detail concerning her. Federated Insurance’s assessors took a more generalized approach to the GOSE questionnaire and answered the questions with a view that Ms. Adams’ actions do not need to be completed perfectly, but overall whether she is capable of completing the task and how she reacts when an error is made. Overall, I find Federated Insurance’s answers to the questionnaire more in line with the purpose and scope of the GOSE questionnaire and the appendices. Lastly, the GOSE questionnaire must be completed by a physician or neuropsychologist because only those experts can perform the necessary assessments for determining catastrophic impairment. The GOSE questionnaire requires judgement as the answers to the questions must only consider the effects of the brain injury. This would be outside the realm of expertise of an occupational therapist.

73On the balance of probabilities, taking into account the Schedule is consumer protection legislation, and should be interpreted considering that, Ms. Adams does not meet the required criteria of s. 3.1(1)4 ii of the Schedule, and therefore is not catastrophically impaired.

74The application is dismissed.

Released: May 9, 2022

__________________________

Chloe Lester

Vice-Chair

APPENDIX A

Activity	How Often Before the Accident	How Often After the accident	Reference
Sunday Church	weekly (4 x month)	1-2 x month but closer to 1 x month	Affidavit Beverley Janssen; Testimony Yvonne Adams
Fellowship After Church	weekly (4 x month)	1-2 x month but closer to 1 x month	Affidavit Beverley Janssen; Testimony Yvonne Adams
Thursday Bible Study	weekly (4 x month)	1-2 x month but closer to 1 x month	Affidavit Beverley Janssen; Testimony Yvonne Adams
Volunteer – Nursing Home	1 x month	0	Testimony Yvonne Adams
Lunches with church family/birthday celebrations	2-3 x week	1 x week (according to Ms. Adams) ½ of the events (according to Beverley Janssen)	Affidavit Beverley Janssen; Testimony Yvonne Adams
Church Events/Fundraising	Not enough info to quantify	0
Movies/Performances	Not enough info to quantify	0
Trips (thousand Islands/Ottawa/Niagara Falls etc.)	2 x month	0	Testimony Yvonne Adams
Family Celebrations	2-3 times per month (according to Audrey Adams) 3 x times per month (according to Ms. Adams)	1 x month	Affidavit Audrey Adams; Testimony of Yvonne Adams
Volunteer – Food Bank	1 x week (4 x month)	0	Testimony of Yvonne Adams
Total- if there was conflicting evidence, the benefit of the doubt was given to Ms. Adams to mimic the worst-case scenario	31 x month	9 x month	Results in 29%

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. (the “Schedule”)
2. 2The Guidelines go into greater detail for each of the four rules. This decision will only highlight some of the factors relevant for the determination of catastrophic impairment relevant to Ms. Adams.
3. 3The testimony of Helen Leimonis, Occupational Therapist and the testimony of Dr. Belfry, neuropsychologist
4. 4S. 45(2) of the Schedule
5. 5Dr. Belfry Catastrophic Assessment and Executive Summary dated September 24, 2018 –Other Joint Document Brief pages 42 and 43, Joint Document Brief Page 131
6. 6Dr. Tuff CAT assessments – Joint Document Brief Page 131-142
7. 7Joint Document Brief Vol 1 Page 28 and page 100
8. 8Joint Document Brief Vol 1 Page 39 and the testimony of Ms. Leimonis and Dr. Belfry
9. 9SPECTRA is an organization that phones Ms. Adams regularly to provide emotional support.
10. 10Mr. Jeff Ford Assessment
11. 11Joint Document Brief Vol 1 Page 39 and the testimony of Ms. Leimonis and Dr. Belfry
12. 12Testimony of Arlene Adams
13. 13Joint Document Brief Vol 1 Page 100 and page 39
14. 14Joint Document Brief Vol 1 Page 101 and page 39
15. 15Joint Document Brief Vol 1 Page 101 and page 39
16. 16Joint Document Brief Vol 1 Page 102 and Ms. Leimonis testimony
17. 17I do note that in Jeff Ford’s Insurer’s Examination Occupational Therapy Assessment Repot dated September 18, 2019, page 102 the answer to question 6a was yes. Mr. Ford corrected himself during his testimony that if the injured person is not engaging in 100% of the activities then the answer is no.
18. 18Testimony of Dr. Belfry, Ms. Leimonis, Dr. Tuff and Mr. Ford
19. 19Rarely Definition & Meaning - Merriam-Webster
20. 20Joint Document Brief Vol 1 Page 32-34 and 102-103