Marlon Tanner v. Certas Direct, 2022 CanLII 45301

Licence Appeal Tribunal File Number: 21-000564/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:

Marlon Tanner

Applicant

and

Certas Direct

Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

APPEARANCES:

For the Applicant: Marlon Tanner, Applicant Barbara K Opalinski, Counsel

For the Respondent: Risha Maharaj, Claims Representative Susana Cipriano, Legal Assistant Priyanie Ranpatabendige, Law Clerk Benjamin Lee, Counsel

Court Reporters: Giles Tingy and Michelle Gordon

Heard by Videoconference: March 14 to 23, 2022

BACKGROUND

1The applicant was involved in an automobile accident on October 18, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016).¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant submitted an Application for Determination of Catastrophic Impairment Form (“OCF-19”) dated July 27, 2020 alleging that he sustained a catastrophic (“CAT”) impairment as a result of the accident. The OCF-19 is based on criteria 6 and 7.

3The respondent denied that the applicant sustained a CAT impairment as a result of the accident and also denied certain benefits sought by the applicant including an income replacement benefit, and the cost of a catastrophic assessment and an OCF-6 for assistive devices.

Witnesses

4The applicant, his father, Errol Tanner, Dr. Tajedin Getahun (orthopaedic surgeon), Dr. Santo Basile (neurologist), Dr. Zohar Waisman (psychiatrist) and Lishan Taneza (occupational therapist) testified on the applicant’s behalf. The respondent called Dr. Behzad Taromi (orthopaedic surgeon), Dr. Dubravka Dodig (neurologist), Dr. David Mula (physician), Dr. Steven Baker (physiatrist), Dr. Lawrence Reznek (psychiatrist) and Dr. Truc Nguyen (investigator who is not a medical doctor). The medical doctors were qualified at the hearing as experts in their respective areas of practice.

ISSUE IN DISPUTE

5The following issues are to be determined at the hearing:

I. Has the applicant sustained a catastrophic impairment pursuant to the Schedule?

II. Is the applicant entitled to a weekly income replacement benefit in the amount of $400 from March 5, 2021 to date and ongoing?

III. Is the applicant entitled to $9,820.00 after a partial approval for the balance of the unpaid catastrophic assessments and other services, recommended by All Health Medical Centre in a treatment plan (OCF-18) dated December 2, 2019?

IV. Is the applicant entitled to $2,473.55 for assistive devices, submitted on an expense claim form (OCF-6) dated December 4, 2020?

V. Is the applicant entitled to an award for unreasonably withheld or delayed payments under section 10 of regulation 664?

VI. Is the applicant entitled to interest on any overdue payment of benefits under section 51 of the Schedule?

RESULT

6The applicant has not sustained a catastrophic impairment as defined in the Schedule. The applicant is not entitled to an income replacement benefit, the balance of the OCF-18 for unpaid assessments and other services or the OCF-6 for assistive devices. As no payments for benefits were unreasonably withheld or delayed by the respondent, the claim for an award is dismissed. As no payments for benefits are overdue, the claim for interest is dismissed.

OVERVIEW

The Applicant’s Impairments

7The applicant was riding his motorcycle on October 18, 2017 through an intersection when a vehicle turned directly in front of him. He hit the rear passenger’s side of the vehicle. He lost consciousness and was taken to Sunnybrook Hospital where he remained for 2.5 weeks. He underwent surgeries to address fractures of the L3 in his spine, his left shoulder, left wrist and right forearm. He also sustained psychological impairments including post-concussion symptoms and a mild traumatic brain injury.

8The applicant submits the records and evidence show that he continues to suffer from pain in his left shoulder and wrist, cervical and lumbar spine and has ongoing headaches, poor sleep, anxiety and depression.

9The applicant and his father presented similar testimony that prior to the accident the applicant was very active and held a full-time position as a marketing director where he worked 40 hours a week. He was relatively healthy with no serious illnesses prior to the accident.

10Both also testified that after the accident the applicant is depressed, takes medication to treat his pain, and that he is not the same person as before. The applicant’s father testified the applicant does not communicate or interact with the family as much as he used to before the accident.

11The applicant testified that he returned to work in February 2019 on modified hours. He was never able to return to his full time position as a marketing director. In March 2021, he was terminated from his position. The applicant claims he cannot work and is seeking an IRB from March 5, 2021 to date and ongoing.

Video Surveillance

12The respondent relies on the surveillance videos² taken ten months after the accident on August 7, 8, 14, 17 and 18, 2018 where the applicant was able to walk, sit, and stand and engage in a conversation with others. He spent time at the front of his home walking about and smoking cigarettes. He was observed attending at a convenience store. On August 17, 2018, he was observed entering and exiting a vehicle with no signs of distress. He was observed opening and closing the front seat door of the vehicle with no signs of distress. He was observed driving a vehicle with both hands on the steering wheel with no signs of discomfort. The respondent maintains the video surveillance supports its claim that the applicant has overstated his injuries and symptoms.

13Additional video surveillance was taken on August 4, 5, 6 and 8, 2021. The applicant was observed walking, standing, sitting, smoking and using his hand to use a cigarette lighter, and turning his head left to right. On August 4 and 5th, 2021, through a front window, the applicant was observed painting a wall inside his home using a roller. With respect to painting, the investigator, Truc Nguyen, was firm in testifying that, although his view was partially blocked by the window and a curtain, he observed the applicant using a paint roller on that day and that he never took his eyes off the applicant for the few seconds that it took to turn on the camera. On August 6, 2021, he was observed having a visit with a family member and lifting his grandchild. He was observed in his garage standing, sitting and walking with no sign of discomfort. He raised his left arm over his head, he was smoking and could light a cigarette.

14It is the respondent’s position that the video surveillance does not support the applicant’s reports of pain. The surveillance evidence was taken ten months after the accident and then 3 years and 10 months after the accident, at a time when the applicant claims his medical condition worsened. I find the surveillance helps in assessing the applicant’s injuries as they relate to the level of catastrophic impairment as described in the Schedule. As a result, I find the surveillance does not support the applicant’s claims of severe and ongoing impairments as a result of the accident.

ANALYSIS

Catastrophic Impairment

15The applicant’s Application for Determination of Catastrophic Impairment (“OCF-19”) relies on 2 different criteria.³ The OCF-19 states that the applicant qualifies under Criterion 6⁴ because he has a physical impairment or combination of physical impairment which results in a 55% or more impairment of the whole person (“WPI”). The OCF-19 states that the applicant qualifies under Criterion 7⁵ because he has a mental or behavioural impairment excluding traumatic brain injury determined in accordance with Chapter 14.6 when combined with a physical impairment from Criterion 6 results in a 55% or more impairment of the whole person (“WPI”).

16Section 3.1(1)7 of the Schedule states:

Subject to subsections (2) and (5) a mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008, that, when the impairment score is combined with a physical impairment described in paragraph 6 in accordance with the combining requirements set out in the Combined Values Table of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 percent or more impairment of the whole person.

17In order to be found to have a catastrophic impairment under the Schedule, the applicant must prove on a balance of probabilities that the impairments he suffers from as a result of the accident have a physical impairment rating that results in a WPI of 55% or more under criterion 6. He may also be found catastrophically impaired under criterion 7 if the mental/behavioural impairments as per the 6th edition when combined with the physical impairment score as per the 4th edition results in a 55% or more WPI. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one.⁶

18The Guides are a compilation of chapters, which contain specific rating criteria for the degree of impairment of individual body systems. Each chapter is dedicated to a particular body system. In order to arrive at a total WPI rating under the Schedule, each individual impairment must first be rated separately under the corresponding chapters within the Guides to obtain an individual impairment rating. Once all the individual impairment ratings are obtained, they are combined according to a formula in the Guides to arrive at the total WPI rating.⁷

Parties’ Positions

19The parties disagree on whether the applicant meets the catastrophic impairment test for either Criterion 6 or 7. The applicant’s position is that he has a WPI rating of 60% under Criterion 6 and, and so meets the test under criterion 6. Also when this rating is combined with a Mental Behavioural Impairment of 20%, he has a combined 68% WPI under Criterion 7. As a result, he submits that he meets the definition of a catastrophic impairment under either criterion.

20The respondent’s position is that the applicant’s WPI for physical impairments under Criterion 6 is 21% and so he does not meet the test. Further this score combined with a Mental/Behavioural Impairment of 5% results in a combined total of 25% WPI under Criterion 7. As a result, he does not meet the definition of a catastrophic impairment under either criterion.

Criterion 6 Impairment

21The applicant’s position is that his combined accident-related impairments result in a 60% WPI rating and that he satisfies Criterion 6 of the Schedule for catastrophic determination. He has a combination of physical impairments which results in 55% or more impairment of the whole person. This is obtained by combining Dr. Basile’s neurologic rating (discounted to 30% by Dr. Getahun from 38%) with Dr. Getahun’s orthopaedic impairment rating of 43% to arrive at a total of a 60% WPI.⁸

22Dr. Mula testified on behalf of the respondent at the hearing. In his executive summary dated March 19, 2021,⁹ he summarized the respondent’s position that the applicant’s total WPI rating under criterion 6 is 21%. This is based on Dr. Taromi's rating from an orthopaedic perspective of 21% WPI combined with Dr. Dodig's 0% WPI rating for no evidence of neurological impairment as a direct result of injuries sustained in the subject motor vehicle accident. Therefore, the applicant does not have a Physical Impairment or Combination of Physical Impairments which results in 55% or more impairment of the whole person.

Criterion 7 Impairment

23The applicant also claims he satisfies Criterion 7. He claims he has mental or behavioural impairments excluding traumatic brain injury combined with physical impairments which results in 55% or more impairment of the whole person. The applicant’s physical impairment rating of 43% WPI from an orthopaedic perspective is combined with the discounted (by Dr. Getahun) neurologic impairment rating of 30% WPI. This is further combined with Dr. Waisman’s mental and behavioural impairment rating of 20% WPI and results in a combined 68% WPI. In his executive summary, Dr. Getahun concludes that based on the evaluations performed, the applicant satisfies both Criteria 6 and 7 of the Schedule for catastrophic determination.

24The respondent’s position is that the applicant’s total WPI rating under both criteria is 25%. This was arrived at by ccombining the physical WPI rating of 21% from Dr. Taromi with the mental and behavioral WPI rating of 5% WPI provided by Dr. Reznek, giving the applicant a combined mental/behavioural and physical WPI rating of 25% WPI based on the Combined Values Chart on page 322 of the AMA Guides to the Evaluation of Permanent Impairment, 4th edition, 1993. A WPI rating of 25% does not meet the 55% WPI threshold required for Catastrophic Impairment designation under Criterion 7.

Orthopaedic Catastrophic Assessments

25There is considerable discrepancy in the WPI rating for physical impairments between the parties. There are two main areas of discrepancy. This involves Dr. Getahun’s rating assigned to the left wrist at 27%. Dr. Taromi combines the rating for the left wrist together with the left shoulder and arrives at a WPI of 13%.

26The applicant relies on Dr. Getahun’s assessment of the applicant dated July 28, 2020, using the 4th Edition, and resulted in a combined 43% WPI based on the following ratings:

• Left wrist 27% WPI
• Right shoulder 5% WPI
• Left shoulder 5% WPI
• Scarring 5% WPI.
• Spinal impairment 10% WPI

27Dr. Getahun’s evidence indicates that his impairment ratings are based on the following summary of the injuries:

a. The applicant has a history of injury to the right shoulder. He has essentially full range of motion but has severe crepitus throughout the acromioclavicular joint. This warrants a 30% joint impairment rating of the acromioclavicular joint (AC joint) which results in a 5% whole person impairment rating.

b. The applicant has a history of direct trauma to the left shoulder with severe acromioclavicular crepitus warranting a 5% rating.

c. The applicant suffered a complex injury to his left wrist. This has resulted in a restricted range of motion. This results in a 19% upper extremity rating. He has diminished grip strength consistent with the nature and severity of his left wrist injury. This resulted in a greater than 61% diminished grip strength. This results in a 30% upper extremity rating. This converts to an 18% whole person impairment rating.

d. His restricted range of motion of the right wrist yielded a 19% upper extremity rating which converts to an 11% whole person impairment rating.

e. Combining his left wrist’s 18% whole person impairment rating for grip strength with his 11% restricted range of motion results in a 27% whole person impairment rating for the left wrist.

28Dr. Taromi’s¹⁰ WPI ratings for musculoskeletal impairment(s) are as follows:

a. For the right upper extremity, the applicant is assigned 0% WPI as the right shoulder, elbow and wrist and hand have full range of motion. The fracture of the right forearm is healed solidly with no deficits in strength and functional range of motion.

b. He also did not assign any WPI for the right shoulder as there was no injury to the right shoulder.

c. He assigned a 5% WPI for the left shoulder based on a left AC joint separation and moderate crepitus which has a 25% upper extremity impairment of joint impairment.

d. For the left elbow, there is no impairment. For the left wrist, based on post-traumatic arthritis of the wrist as well as the scapholunate dissociation, there is an 18% upper extremity impairment (UEI). Combining 18% UEI for the left wrist and 5% UEI for the left shoulder based on the Combined Values Chart on page 322 of the AMA Guides, 4th edition amounts to 22% and thus equal to a 13% WPI. For the L3 fracture of the spine the applicant was assigned a 5% WPI. The applicant has residual back pain of his lumbar, cervical and thoracic spine; however, there is functional range of motion in all directions.

e. The applicant has multiple scars including right forearm, left wrist, and left shoulder. There is no limitation or limitation in performing only a few activities of daily living (ADLs) and no treatment is required. He assigned a 5% WPI rating for scarring.

f. For the left knee, the injury was an abrasion, and there is no impairment based on the examination, document review, and imaging. Therefore, there is no impairment rating for the left knee.

29Dr. Taromi states in his report that combining the above mentioned WPI ratings for the musculoskeletal system and scarring leads to a total WPI of 21% WPI.¹¹

30Dr. Taromi’s evidence indicates that his rating of 21% WPI is based on the subjective reports and objective findings on the date of his assessment, review of the documents provided, and has been calculated following the AMA Guides, 4th edition. Under Criterion 6, he concluded that this does not reach threshold for a catastrophic impairment designation.

31Dr. Taromi disagreed with the ratings provided by Dr. Getahun. First, he did not assign any WPI for the right shoulder as there was no injury to the right shoulder. I agree and am persuaded by Dr. Taromi’s conclusion of the 0% WPI rating for the right shoulder. Although the applicant complained of pain in his right shoulder to Dr. Getahun, the medical evidence does not indicate a right shoulder injury. As such, I give very little weight to Dr. Getahun’s diagnosis of a right shoulder injury or the consequentially assigned WPI of 5% for the right shoulder. Dr. Taromi testified that Dr. Getahun refers to range of motion and restricted grip strength to assign a WPI of 27% for the left wrist. Dr. Getahun also assigned a further 5% WPI for the left shoulder. Dr. Taromi questioned this approach. In Dr. Taromi’s view, the correct approach was to combine the WPI rating for the left wrist and shoulder and I agree. Dr. Getahun did not explain why he assigned separate ratings for the left wrist and left shoulder.

32Moreover, I find Dr. Getahun’s report contains inconsistencies. He states that the right elbow and wrist have full range of motion but then later states “his restricted range of motion of the right wrist yielded 19% upper extremity rating which converts to 11% whole person impairment rating.” He may have meant to say the left wrist but it is not clear.

33I also question Dr. Getahun’s ratings based on grip strength. Dr. Taromi testified he does not use grip strength to assign a rating as this can lead to invalid results. Further, I find the ratings assigned based on grip strength by Dr. Getahun are not consistent with the reports of the occupational therapists. For example, in her report¹² dated March 19, 2021, Susan Javasky (OT) indicates that from a functional perspective the applicant demonstrated the ability to grip and open doors, perform light housekeeping such as using a vacuum and lift two 8 pound weights during an in home exercise program. The applicant also demonstrated functional bilateral active shoulder range of motion in all planes. She reported the applicant was able to reach the top and back of his head with both upper extremities. He demonstrated functional lumbar range to bend and load a dishwasher. Further, in the functional abilities evaluation (FAE)¹³ of Dawn Rodie dated February 4, 2020 where Ms. Rodie concluded his grip strength on the left was 21 pounds and grip strength on the right was 41.7 pounds. He demonstrated functional ability to reach overhead and the same applies with handling, fingering, sitting, and standing. Based on this evidence, the 18% WPI rating for grip strength by Dr. Getahun is questionable.

34Lastly, Dr. Getahun also testified that he relied on the occupational therapy catastrophic impairment determination assessment report by Julian Amchislavsky (OT) dated February 7, 2020¹⁴ who reported that the applicant complained of intermittent headaches, pain that radiated down into his bilateral shoulders and down to the fingertips with the left more than the right, and intermittent pain in his lower back. However, the applicant also reported to Mr. Amchislavsky that his injuries were improving and he was happy with the improvement in his left wrist, cervical and lumbar areas as well as his headaches. Mr. Amchislavsky also stated in the report that the applicant could lift light items and was able to stand for 5 to 10 minutes and walk for 10 minutes.

35I also give little weight to Dr. Getahun’s WPI rating of the spine at 10% based on the medical reports. Dr. Getahun stated that the applicant reported constant upper and low back pain. The medical documents refer to complaints of low back pain but not upper back pain. He also claims this is aggravated by prolonged sitting. The same comment was made regarding neck pain. I note the video surveillance showed the applicant sitting in his garage for long periods of time with no signs of distress in either his back or neck. In her FAE, Ms. Rodie indicated that the applicant has demonstrated a functional ability to sit and stand. Dr. Getahun noted some tenderness at the L3, L4 and L5 with guarding on the right side. Having some tenderness at the L3, L4 and L5 is not supportive of a WPI rating of 10%. I am persuaded by Dr. Taromi that the correct rating for the spine is 5%. The rating by Dr. Taromi is supported by the medical evidence and findings of the occupational therapists.

36Overall, I place greater weight on the evidence and report of Dr. Taromi over that of Dr. Getahun. His analysis was comprehensive and did not contain errors, unlike Dr. Getahun, in the diagnosis of the applicant and assignment of the WPI. Further, the medical records from the Sunnybrook Health Science Centre¹⁵ support Dr. Taromi’s ratings. For example in his clinical notes dated February 23, 2018 by Yaron Haimovich, orthopaedic surgeon, states that at that time that the applicant had good range of motion of his left shoulder with no significant pain, deformity or signs of instability in his AC joint. The right elbow and wrist had full range of motion with no significant pain or neurovascular deficit distally. In his clinical notes on February 22, 2018, Dr. Berbrayer, physiatrist noted that the left wrist fracture had healed although he did note that the injury to the left wrist was severe and the wrist function after such an injury never returns to normal. It is common to have significant stiffness and pain. On April 22, 2018, Dr. Berbrayer noted that the left wrist and hand had no significant pain on palpation and good range of motion of the fingers. The X-rays showed good position of the fractures and bone healing.

37In summary, I am persuaded by Dr. Taromi’s WPI rating of 21% from an orthopaedic perspective. Alternatively, by reducing the WPI for the spine to 5%, eliminating the 5% for the right shoulder and reducing the left wrist WPI based on grip strength by 18% results in a WPI by Dr. Getahun of 24% instead of 43%.

Neurological Ratings

38The applicant also relies on the neurologic evaluation report by Dr. Santo Basile, neurologist dated February 12, 2020.¹⁶ Dr. Basile offers a combined WPI rating based on a neurologic impairment rating of 38% WPI. To avoid duplication and overrating, Dr. Getahun revised the WPI to 30%:

• Disturbances of consciousness and awareness: 15% WPI.
• Headaches: 13% WPI.
• Sleep and arousal disorders: 3% WPI.
• Sexual dysfunction: 2% WPI.
• Hearing: 2% WPI.

39Dr. Basile’s evidence is that the applicant complains of ongoing pain in the lower back, significant pain in the neck, ongoing headaches, some balance issues, post concussion syndrome, inability to perform household chores and significant anxiety driving. He noted mild tenderness in the cervical spine and range of motion was normal in all directions. His conclusion is that the musculoskeletal/myofascial soft tissue injuries were responsible for the neck and back pain. He had post traumatic headaches, migraine, occipital headaches and chronic daily medication overuse headaches. Neurologically Dr. Basile noted there was indication of a likely right sided C-5, C-6 cervical radiculopathy and likely a left sided L3 lumbosacral radiculopathy and chronic pain syndrome. He suggested an MRI and an EMG of the cervical and lumbosacral spine to rule out any structural causes of his radiculopathy. I find this suggests Dr. Basile did not identify a structural cause of the radiculopathy and the suggestion of an MRI and EMG meant neither were available for review for his report.

40Dr. Basile concluded that the applicant continues to suffer from multiple impairments from the accident which affected his personal and social life. He has not returned to any of his pre-accident recreational activities. Dr. Basile opined that the applicant will likely be unable to engage in activities which involve prolonged walking, standing, squatting or bending. A physiotherapy regimen of weekly visits was needed to maximize his chances for full improvement. Additionally, limiting activities that would aggravate the neck and lower back pain was recommended.

41Dr. Basile’s chart below from his report summarizes the total combined whole person impairment assigned based on his neurological impairment of 38% WPI is as follows:

1. Central and peripheral nervous system dysfunction Aphasia or communication disturbances (Table 1 p4/141) N/A

2. Mental status and integrative functioning abilities (Table 2 p4/142) N/A

3. Emotional or behavioral disturbances (Table 3 p4/142) 10% WPI

4. Disturbances of consciousness and awareness (Table 4 p4/142) 15% WPI

5. Special types of preoccupation or obsession (Psychiatry) N/A

• for the above #1 to 5, Dr. Basile states he defers to psychiatric/neuropsychiatric evaluation and assessment. The greatest of the above 5 impairments (15 % WPI) can be used in assessment of whole person impairment (one cannot combine these impairments).

6. Major motor or sensory abnormalities: Cervical radiculopathy (Table 73 pg3/110, possible right-sided C5-C6, needs EMG/NCS and MRI C-spine) Thoracic radiculopathy Lumbosacral radiculopathy (Table 72 pg3/110, possible left-sided L3, needs EMG/NCS and MRI L- spine) (TP L3 Fracture) Carpal tunnel syndrome Ulnar neuropathy at the elbow Peroneal neuropathy at the fibular head Other peripheral nerve (facial/trigeminal accounted for in CN)

5% WPI 0% WPI 5% WPI 0% WPI 0 % WPI 0% WPI 0% WPI

7. Movement Disorders 0% WPI

8. Episodic neurological disorders (Seizures) (Table 5 p4/143) 0% WPI

9. Sleep and arousal disorders (Table 6 p4/143) 3% WPI

10. Smell 0% WPI

11. Headaches

• Cervicogenic headaches/greater and lesser occipital neuralgias (Table 23 4/152) Right: Left: Combined:
• Migraine headaches
• Tension headaches

5% WPI 5% WPI 10% WPI 2% 1%

12. Cranial nerve abnormalities: Optic Nerve (Table 7 p4/144) Visual Fields (Table 8 p4/144) Extra-ocular Movements Trigeminal CN5 (Table 9 p4/145) Facial CN7 (Table 10 p4/146) Vestibulocochlear CN8 (Table 11 p 4/146) Glossopharyngeal Vagus Spinal Accessory Hypoglossal CN9 CN10 CN11 CN12 (Table 12 p4/147) ¹⁷

0% WPI 0% WPI 0% WPI 0% WPI 0% WPI 0% WPI 0% WPI 0% WPI

16. Sexual dysfunction (Table 19 p4/149) 2% WPI

17. Hearing 2% WPI

42The respondent’s WPI differs significantly from the applicant’s WPI. Dr. Basile assigned a rating of 38% whereas Dr. Dodig assigned a WPI of 0%. The respondent relies on the neurological examination by Dr. Dodig in her March 21, 2021 report.¹⁸ Dr. Dodig found no evidence, based on the provided records, reported symptoms and neurological examination of an underlying neurological deficit/direct trauma. She opined that recently worsened headaches, sleep disorder, reported sexual dysfunction and hearing deficits diagnosed by Dr. Basile and accounting for a reported 30% WPI rating cannot be attributed to the accident. Based on the reviewed information and the current neurological assessment, Dr. Dodig opined that there is no evidence of neurological deficit directly related to the accident and concluded that the neurological WPI is 0%. She concluded that the combined impairment rating under Criterion 6 is 0% WPI.

43In Dr. Dodig’s opinion, the neurological examination was unremarkable. Etiology of the reported pain seemed primarily musculoskeletal and myofascial. She concluded the recent increase in the frequency of headaches with migraine features cannot be directly linked to the subject accident. Further, this is a treatable condition with favourable prognosis. For completeness, Dr. Dodig testified she would be happy to review the results of the follow up MRI of the brain¹⁹ if it becomes available. She did so in cross examination and her testimony did not change. She testified that the scans showed signs of a prior injury unrelated to the accident and perhaps an old soccer injury.

44I am not persuaded by Dr. Basile’s WPI ratings for the following reasons:

1. He rates sexual disfunction at a 2% WPI and hearing at 2% WPI but there is no explanation or discussion of these in his report. I therefore give little weight to Dr. Basile’s evidence on this element and his rating should be reduced by a 4% WPI.
2. While Dr. Getahun discounted the total neurologic WPI from 38% to 30% to avoid double counting, there is no explanation for or how the discount is arrived at.
3. Dr. Basile gives a WPI rating of 15% for disturbances of consciousness and awareness and states these are deferred to a psychiatrist. By contrast, while Dr. Dodig also deferred rating to a psychiatric evaluation, she did not assign a WPI rating for this element. Despite Dr. Basile’s statement of deferral, it appears that he still uses the assigned 15% WPI to arrive at his total WPI rating of 38%.
4. Dr. Basile assigns a WPI of 10% to his diagnosis of the cervical and lumbar radiculopathy which he identifies as likely but then it is questionable in that he states further evaluation is required. The rating is questionable.
5. Lastly, some of his underlying facts are also questionable. For example, he states the applicant has severe neck pain. This is not consistent with the description provided by Dr. Getahun that the neck pain showed some tenderness. He also indicates that the applicant has severe driver anxiety. However, this is also inconsistent with the evidence that the applicant had resumed driving as early as 2018. The video surveillance also showed no signs of driver anxiety.

45Based on this analysis I reduce the WPI rating of Dr. Basile by 15% for the disturbances of the consciousness and awareness element, which should be deferred to a psychiatrist and another 4% for sexual disfunction and hearing not addressed in his report. This would reduce the total neurological WPI rating from 38% to 19% or, alternatively, the discounted 30% to 11%.

46I prefer to utilize the 11% WPI as Dr. Getahun recognized the need to reduce his rating to avoid duplication. Even if the original 38% rating less 19% is used, this would amount to a combined WPI rating of 19% from a neurological perspective. Combining that with Dr. Getahun’s revised orthopaedic rating of 24%, the combined WPI rating under criterion 6 is 38%. Alternatively, using Dr. Getahun’s discounted neurological rating of 30% less the reduced rating of 19% results in a combined rating of 11% from a neurological perspective. Combining that with Dr. Getahun’s revised orthopaedic rating results in combined WPI of 32%. As a result and in either case, the applicant does not meet the 55% WPI requirement under criterion 6.

Criterion 7 Mental or Behavioral Disorders WPI Rating

47There is considerable discrepancy in the WPI rating for mental or behavioral disorders between the applicant’s position and the respondent’s position. The applicant claims a total combined rating of 68% and the respondent claims a rating of 25%.

48If one accepts the reduced WPI rating under criterion 6 of 32% discussed above and even if one accepts Dr. Waisman’s assessment of 20% this would result in a combined impairment for Criterion 7 of 46% and does not result in an impairment of 55% under Criterion 7. This would be enough to dismiss the applicant’s claim of a CAT impairment under Criterion 7.

49However, based on my analysis below, I am not persuaded by Dr. Waisman’s rating of 20%.

Psychiatry Assessment

50The Guides state that three scales can be used to rate the mental and behavioral disorder impairment of the applicant which provide a broad assessment of the patient.²⁰ Both psychiatric assessors used the uses three scales by which mental and behavioral disorder impairment is rated specifically. This includes:

1. The Brief Psychiatric Rating Scale (BPRS).
2. The Global Assessment of Functioning Scale (GAF).
3. Psychiatric Impairment Rating Scale (PIRS)

The BPRS focuses solely on symptom severity, the PIRS on function and GAF is the blend of the two.

51The applicant relies upon the Catastrophic Psychiatry Report dated July 25, 2020 ²¹ by Dr. Waisman who used the 6th Edition methodology to offer a WPI rating of 20%. Dr. Waisman arrived at a diagnosis of a serious Pain Disorder and a Major Depressive Disorder. He opined that the applicant’s BPRS Impairment score was 40% WPI, that his GAF score was 40 (giving him a WPI of 20%), and that his PIRS Impairment score was 20% WPI.

52In his analysis, Dr. Waisman rated the applicant’s somatic concern at 7 for extremely severe, which is described as preoccupation with somatic complaints with severe impairment in functioning or somatic delusions that tend to be acted on or disclosed to others. He rated the applicant at a 6 for anxiety, which is anxiety with autonomic accompaniment daily but not persisting throughout the day or many areas of functioning are disrupted by anxiety or constant worry. Lastly, he rated the applicant with deep depression at a 7, which is described as being depressed daily or where most areas of functioning are disrupted by depression.

53In his CAT psychiatry Assessment report of March 19, 2021,²² Dr. Reznek did not find sufficient evidence to support a serious psychiatric disorder. In his opinion, this explains in large part the difference between his rating and that of Dr. Waisman.²³ Using the BPRS, he arrived at a total score of 35. This translates to a BPRS Impairment Score of 5% WPI. For the GAF and using the California GAF to WPI Conversion Table.²⁴ Dr. Reznek concluded that from a purely psychiatric point of view, the applicant suffers from an Adjustment Disorder following the accident. He also sustained a mild Traumatic Brain Injury.²⁵ Dr. Reznek testified that the applicant’s Adjustment Disorder however had largely resolved, and his symptoms were not of a depth and breadth to warrant a severe diagnosis. He did recognize that the applicant continues to have some residual symptoms of his Adjustment Disorder but these are mild impairments. He stated the GAF score is likely in the region of 65-70, which is described as "Some mild symptoms or some difficulty in social, occupational or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships." Given this GAF score, he has a WPI of around 5%.

54The PIRS focuses on six areas of function for activities of daily living:

a. Self Care and Personal Hygiene. b. Social and Recreational Activities. c. Travel. d. Social Functioning. e. Concentration. f. Adaptation.²⁶

55Dr. Reznek opined that the applicant has²⁷:

a. a Class 1 impairment with respect to self-care and personal hygiene (i.e. he has no impairment); b. a Class 2 impairment with respect to social and recreational activities (i.e. he is only mildly impaired); c. a Class 2 impairment with respect to travel (i.e. he is only mildly impaired and although anxious when he drives, he is still able to do so); d. a Class 1 impairment with respect to relationships (i.e. he has no impairment - he has a good relationship with his wife and maintains good relationships at work); e. a Class 2 impairment with respect to concentration (i.e. he has at most only a mild impairment); and f. a class 2 impairment with respect to adaptation (i.e. he is only mildly impaired).

Overall, Dr. Reznek opined that the applicant he has a Class 2 impairment, which translates into a WPI of 4-10%. Using his aggregate score, he has a WPI of 5%.

56Dr. Reznek concluded that the WPI under Criterion 7 is 5%. Combining the physical WPI rating of 21% determined under Criterion 6 with the mental and behavioral WPI rating of 5% WPI provided by Dr. Reznek, this results in a combined mental/behavioural and physical WPI rating of 25% WPI based on the Combined Values Chart on page 322 of the 4th edition. A WPI rating of 25% falls short of the 55% WPI threshold required for Catastrophic Impairment designation under Criterion 7. As such, Criterion 7 is not met.

57In Dr. Reznek’s opinion, there was an element of symptom exaggeration in that the applicant exaggerates the extent of his problems. The applicant’s account was not wholly reliable and his true impairment level is likely lower than he makes it out to be. Dr. Reznek outlined the tests administered for symptom magnification. The assessors found the applicant complained of some depression and some anxiety driving but he was not disabled by any distress. He concluded the applicant did not suffer from a Somatic Symptom Disorder and he did not have a specific Phobia for driving. Dr. Reznek opined that the post concussion disorder and adjustment disorder had resolved. He had residual symptoms of the adjustment disorder which were mild.

58Dr. Reznek also found the applicant was working at the time of the assessment and he seemed able to maintain appropriate self-care. He opined that the applicant was engaging in social activities because he was at work, was functioning and had good relations with his colleagues and spouse. I also note as discussed below that the applicant had returned to some DJ work after the accident or at least attended some events which he testified could be attended by 100 to 150 persons. This demonstrates that he engaged in social activities.

59I prefer the assessment of Dr. Reznek over that of Dr. Waisman and as such place less weight on the opinion of Dr. Waisman for the following reasons. Dr. Waisman’s evidence was that the applicant could not work at the time of his report; he maintained that position during cross-examination. However, the evidence indicates the applicant had been working since February 2019. The applicant was working at the time of Dr. Waisman’s assessment. The applicant worked on modified duties for 2.5 years until his termination of employment in March 2021. I am not persuaded by the rating of a severe depression by Dr. Waisman and its impact on the applicant who continued to work even on a modified basis for 2.5 years.

60Further, in his report, Dr. Waisman indicated that the applicant can travel only locally. However, this is not consistent with the evidence which indicates the applicant travelled to three Caribbean destinations after the accident. The first was a preplanned trip to Jamaica in December 2017 to get married, as the applicant testified that a personal support worker travelled with him. The two other two trips were for pleasure. The applicant testified one trip was paid for by his father. The second trip to the Caribbean was on January 16, 2019, on the one year anniversary of his wedding.

61Dr. Waisman found the applicant had driver anxiety. However, as indicated by Dr. Reznek, the applicant had complaints about driver anxiety but he was still driving and the evidence indicates he was doing so in 2018. The video surveillance also shows the applicant demonstrated no difficulty driving or any anxiety or pain doing so. Dr. Waisman also stated the applicant took no medication. This is not consistent with the report from Dr. Basile who notes in his neurological assessment that the applicant had headaches due to overuse of medication.

62Dr. Reznek gave evidence that it is hard to reconcile being at work and a GAF score by Dr. Waisman of 40%. An impairment in terms of speech would be required. He found this was not consistent with his examination which indicated the applicant’s speech was normal. He could communicate well. There were no suicidal tendencies and he was able to maintain work. During cross examination, Dr. Reznek was asked if his rating would change if he was aware the applicant and spouse had marital counselling and if he learned that the applicant was fired from his employment. As to the latter, Dr. Reznek stated that it would depend on the reasons why the employment was terminated. He admitted it is possible that the rating could increase to 10% from 5%. Despite Dr. Reznek’s concession, I am not persuaded that this would not have had any significant impact on the WPI necessary to meet the 55% WPI needed for a CAT impairment finding.

63Based on the totality of the evidence, I place little weight on the 20% WPI rating for Mental or Behavioral Disorders assigned by Dr. Waisman and relied upon by the applicant as it contains errors. His assignment of the applicant’s level of impairments is therefore unreliable. As a result, even if I were to accept all of the other remaining WPI percentages relied upon by the applicant (which I do not), the maximum combined total WPI percentage according to the combined values chart in the Guides²⁸ is 32% WPI. A 32% WPI is well below the required threshold of 55% WPI for a finding of a CAT impairment. As such, I find that the applicant failed to prove on a balance of probabilities that he sustained a CAT impairment as a result of the accident under criterion 7.

Income Replacement Benefit

64The applicant bears the burden of proving on a balance of probabilities that he is entitled to a post 104-week IRB in the amount of $400 from March 5, 2021 to date and ongoing. He received an income replacement benefit up to November 12, 2017 to March 5, 2019. He returned to work on a modified basis from February 9, 2019 until he was terminated on March 11, 2021.²⁹ He has not returned to his full-time employment and has not done any retraining. He has not applied for any full time work. I agree that the evidence indicates the applicant has not returned to his full time pre-accident work, however, I am not satisfied that he meets the complete inability test set out below.

65The test for entitlement for a post-104 week income replacement benefit is set out in section 6(2)(b of the Schedule which states: “The insurer is not required to pay an income replacement benefit after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”

66The applicant testified that he was employed at the time of the accident, as a graphic designer (this was also described as a marketing director position) for a company called Degil Safety Products, Inc. He was working there full-time. His job involved creating marketing materials, performing web design, including designing brochure products, planning layouts for displays as well as building shelves and staging and laying out product, planning molds, and signing and packaging.³⁰ He returned to work in February 2019 on a part-time basis working 6 hours a day, 3 days a week. He no longer performed any of the staging, building shelves, or laying out of product. His job was on the computer only. He describes his right forearm and hand were aggravated when using a computer and the mouse and is one of the primary limiting factors at work.

67The applicant testified that he continued working on modified duties until March 2021 when his company was sold and under new management, and he was asked to return to full time duties. He testified that he was unable to do that due to his impairments and ongoing pain. He was terminated from his part time modified position in March 2021.

68The applicant was questioned about his work as a DJ and volunteering at the radio station after the accident. The applicant testified that he had started a DJ business with a partner many years prior to the accident. He and his father were questioned about his work as a DJ after the accident. The applicant maintains that due to his injuries he cannot perform the work as a DJ because he is unable to sustain standing and flexed postures required to work as a DJ. The evidence however indicates that he did return to some DJ work after the accident. In cross-examination, the applicant testified that he earned about $500 after the accident as a DJ. He testified he could earn as a DJ about $500 to $1200 per event. Earnings of $500 is low, however, it does indicate the applicant has experience working as a DJ, and that he had returned to work after the accident as a DJ. It established some functionality to perform that work which I find is sufficient to establish the applicant does not meet the complete inability test.

69Moreover, Susan Javasky’s occupational therapist report³¹ dated March 19, 2021 stated that the applicant advised her that following the accident, he had volunteered at the radio station once in a while just for a few hours once a month or less but this stopped due to the COVID pandemic. He stated to her that he keeps in contact with his friend at the station to assist with programming. Although this is a volunteer position it does show some work was done by the applicant after the accident and is evidence of some functionality. I find this is sufficient to establish the applicant does not meet the complete inability test.

70The applicant was also questioned about the reference in the clinical notes of October 19, 2020 of Dr. Bricker³² who reported that the applicant had told Dr. Bricker that he did a DJ gig and he really enjoyed it and he wanted more. The applicant denied he stated this to Dr. Bricker. The respondent maintains the applicant DJ’d at least five times after the accident including at the end of 2018.

71Dr. Steven Baker, physiatrist also assessed the applicant’s ability to return to work in his Physiatry Assessment Report dated February 4, 2020.³³ In his opinion,

"... From a musculoskeletal perspective, Mr. Tanner does not suffer a complete inability to engage in any employment as a result of the subject accident. He has already returned to work in a modified capacity."

72The applicant was also assessed by Dr. Amena Syed, psychologist in his Psychological Assessment Report, dated February 4, 2020³⁴ who stated based on the records, relevant literature and his clinical judgment, that he was satisfied with a reasonable degree of psychological certainty that the applicant is suffering from an Adjustment Disorder. Diagnostically, he meets the criteria for a DSM-V impairment; however, while he was currently dealing with some psychological distress, this impairment is not of a sufficient incapacitating degree, and therefore, from a purely psychological perspective, there are no resultant functional limitations. Dr. Syed concluded that the applicant is not considered to be suffering from a complete inability to engage in any employment he is reasonably suited for.

73The respondent maintains that as the applicant had returned to part-time work, this is a strong indication he does not meet the complete inability test. I agree. In February 2019, he had returned to work. He was able to do some designs, use computer equipment and had returned to at least three days a week.³⁵ He indicated that when new management came into place, changes were made requiring him to return to the office. New management was forcing all employees to go into the office. He stated the company wanted him back to a schedule of 40 hours a week and were taking the ability to work from home away. He testified there was a change in the management which he ended up with the new manager. The new manager assigned new and bigger projects. The applicant testified he could not complete the work due to his impairments. On February 11, 2021, he saw Dr. Omar Alahi, family doctor, whose notes³⁶ indicate that he told the doctor that he was nearing burnout and he needed a break from work.

74I find based on the totality of the evidence that the applicant is not, as a result of the accident, suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

Medical Benefits

Is the treatment plan for catastrophic assessments reasonable and necessary?

75For the following reasons, I find that the unapproved balance of the treatment plan is not reasonable and necessary. The burden is on the applicant to prove on a balance of probabilities his entitlement on the basis that the plan is reasonable and necessary.

76The treatment plan³⁷ proposed numerous assessments for the purposes of determining whether the applicant has a CAT impairment. The treatment plans for 7 CAT assessments (they are not identified in the OCF-18 or the Explanation of Benefits) and the document preparation fee were partially approved in the amount of $14,200, leaving the amount in dispute of $9820. The respondent approved $200 of the $400 for the orthopaedic surgery assessment and $1300 for taxes. It did not approve the $2000 each for a catastrophic assessment and a neurology assessment, the $2000 charge and a second charge for $1000 for coordination planning service (described as file review) and the $600 charge for transportation charges.³⁸ The respondent stated in response that pursuant to section 25(5) (a) of the Schedule, the insurer was liable to payment of a maximum of $2000 for expenses to conduct any one assessment or examination and for preparing reports in connection with it.

77The proposed assessments, valued at $24,020, are identified in the additional comments section of the OCF-18 as follows:

• Line 1 OT In Home Assessment ($2000 cost)
• Line 2 OT Situational for CAT Determination ($2000 cost)
• Line 3 CAT Psychiatry ($2000 cost)
• Line 4 CAT Psychiatry testing (described as “Assessment (examination) total body” in part 12 for cost of $2000)
• Line 5 CAT ORTHO (cost of $4000)
• Line 6 CAT Neuro Testing (described in part 12 as “Assessment (examination total body”) for cost of $2000
• Line 7 CAT Neurological Assessment ($2000 cost)
• Line 8 CAT file review ($2000 cost)
• Line 9 CAT Executive Summary (described as a CAT assessment in part 12 for cost of $2000)
• Line 10 OCF-18 claim form (cost of $200)
• Line 11 OCF-19 CAT determination (cost of $400)
• Line 12 File review (cost of $1000)
• Line 13 Transportation (cost of $600)

78I find the applicant has not advanced evidence to indicate why the proposed unpaid amounts are reasonable and necessary. I agree with the respondent that section 25 (5)(a) limits its liability to payment of a maximum of $2000 for expenses to conduct any one assessment or examination and for preparing reports in connection with it. Moreover, the OCF-18 seeks payment of transportation charges which is not related to the CAT determination assessment and refers to two different charges for a coordination planning service which is not explained in any detail. The respondent states it did not approve the CAT assessment and neurological assessment as there may be more than one proposed examination. I note the information above at lines 4 and 6 refer to psychiatry testing and neuro testing but this was not clarified by the applicant. I find that on a balance of probabilities the unpaid balance is not reasonable and necessary. The applicant has not demonstrated why the unpaid portions are reasonable and necessary.

Is the applicant entitled to the OCF-6 for the cost of assistive devises?

79The OCF-6 expense claim³⁹ seeks payment for three assistive devices for a total cost of $2473.55. The first device is dated November 13, 2020 for $1919.87. The device is not described. A receipt from a retailer is attached to the OCF-6 showing the purchase of a cub cadet. This item is not described nor is any evidence submitted as to why the device is a reasonable and necessary expense. The second device is dated October 28, 2020 for $259.89. The order summary attached identifies the device as a motorized sit to stand desk riser. There is no evidence of why this device is reasonable and necessary. The third device is dated October 31, 2020 for an office chair for $293.79. The invoice attached describes several chairs. The device is not clearly identified and no evidence was led as to why it is reasonable and necessary. The respondent denied payment on December 8, 2020 on the basis that the policy limits had been reached and any expenses greater than $250, must be submitted with an OCF-18 along with supporting medical documentation that the requested devices are required due to the injuries sustained in the accident. The respondent did not identify in its denial letter the section in the Schedule that requires an OCF-18 to be submitted. The respondent submits that these expenses must also have first been sent to the employer for payment as one device appears to be for a chair and a second device for a desk which it states is for the applicant’s workplace. The respondent states that it requested the applicant to submit the expenses to the employer. It received no response from the applicant.

80The applicant submits he did not submit an OCF-18 as the non-CAT limits had been reached. The applicant states further that the respondent has discretion to waive the requirement for an OCF-18 under section 39 of the Schedule. The respondent denies any waiver. In my view, a plain reading of section 39’s waiver is that it is the respondent’s choice; in other words, if the respondent does not waive an OCF-18 normally required by section 38, then the respondent must, by necessary implication, require an OCF-18 from the applicant. Further, I find that the assistive device other than the riser desk were not properly identified. The OCF-6 is not payable as there is no evidence presented by the applicant that the assisted devices are reasonable and necessary.

An Award Under Regulation 664

81The applicant claims he is entitled to an award for unreasonably withheld or delayed payments.

82Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments.

83I find there is no basis on which to make an award as no benefits were unreasonably withheld or delayed. The applicant’s award request is dismissed.

INTEREST

84As no payments for benefits are overdue, the claim for interest is dismissed.

CONCLUSION AND ORDER

85For the above-noted reasons, I find that the applicant has not sustained a catastrophic impairment as defined in the Schedule. The applicant is not entitled to an IRB. The applicant is not entitled to the OCF-18 nor the OCF-6 in dispute. The claims for an award and interest are dismissed.

Released: May 26, 2022

Thérèse Reilly

Adjudicator

Footnotes

1. 1Regulation 34/10.
2. 2Exhibits 19 and 26, Video Surveillance and Investigator Report, August 27, 2018 and August 4 to 7, 2021, respondent document brief, tabs F1 and F2.
3. 3OCF-19 , exhibit 37, tab 102 of the respondent brief, dated February 27, 2020.
4. 4Section 3.1 (1) 6 of the Schedule (“Criterion 6”) and the American Medical Association Guide to the Evaluation of Permanent Impairment, 4th Edition, 1993 at Chapter 14.
5. 5Section 3.1 (1) 7 of the Schedule (Criterion 7) and the American Medical Association Guide to the Evaluation of Permanent Impairment, 6th Edition, 2008, Chapter 14, Section 14.6.
6. 6See Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paragraphs 29.
7. 7See page 322 of the Guides and the Combined Values Chart.
8. 8Dr. Getahun’s Catastrophic Impairment Executive Summary dated July 28, 2020, exhibit 24, tab A1 of the applicant’s document brief and Dr. Getahun’s Orthopaedic Catastrophic Assessment dated February 5, 2020, exhibit 23, applicant document brief, tab 1.
9. 9Dr. David Mula, Executive Summary, exhibit 27, respondent document brief, tab C16.
10. 10Dr. Taromi, exhibit 30, CAT Impairment Determination Orthopaedic Assessment report dated March 19, 2021, respondent document brief, tab C18.
11. 11Ibid, Dr. Taromi’s report pages 18 to 20.
12. 12Susan Javasky, occupational therapist, OT CAT Impairment Determination report dated March 19, 2021, exhibit 18, respondent document brief, tab C17, page 22.
13. 13Functional abilities evaluation (FAE) of Dawn Rodie report dated February 4, 2020, exhibit 15, respondent document brief, tab C11.
14. 14Julian Amchislavsky, occupational therapist, Occupational Therapy Catastrophic Report dated February 7, 2020, tab 5, applicant condensed medical brief.
15. 15Sunnybrook Health Science Centre records, exhibit 2, applicant document brief, tabs C1 to 4.
16. 16Neurologic Evaluation by Dr. Santo Basile, neurologist dated February 12, 2020, exhibit 1, tab A3, applicant document brief, page 13.
17. 17Vertigo, Station Gait, Urinary Dysfunction of the bladder and sexual dysfunction are not included in the chart and each had a WPI of 0%.
18. 18CAT Neurological Assessment Report, by Dr. Dubravka Dodig, March 21, 2021 report, exhibit 21, tab C20, respondent document brief.
19. 19MRI scan dated January 7, 2020, exhibit 22.
20. 20Dr. Waisman in his CAT Psychiatry report dated July 25, 2020 describes the legislative changes and description of how the mental and disorder impairment is calculated at pages 22 to 25.
21. 21Dr. Waisman, psychiatrist, CAT Psychiatry report dated July 25, 2020, Tab A4, applicant document brief.
22. 22CAT Psychiatry Assessment, Dr. L. Reznek, dated March 19, 2021 exhibit 28, tab C19, respondent document brief.
23. 23Ibid, exhibit 28, tab C19, respondent document brief.
24. 24According to this, a person with a GAF of greater than 70 has a 0% WPI, a person with a GAF of 60-69 has a WPI = 2-15%, a person with a GAF of 55-59 has a WPI= 17-23%, a person with a GAF of 51-55 has a WPI= 29-33%, and a person with a GAF of 45-48 has a WPI= 40-44%.
25. 25Dr. Anthony Feinstein, in his neuropsychiatry report noted on January 23, 2018 that the applicant had suffered a complicated mild traumatic brain injury in the accident.
26. 26CAT Psychiatry Assessment, Dr. L. Reznek, dated March 19, 2021 exhibit 28, tab C19, respondent document brief. Each area has five classes of functioning, from Class I: No deficit, to Class 5: Totally Impaired. The median class score is calculated by removing the top two and bottom two scores. Class 1 = 0-3% WPI, Class 2: 4-10% WPI, Class 3: 11-30% WPI, Class 4: 31-60%, and Class 5: 61-100% WPI, pages 23 and 24.
27. 27Ibid, page 24.
28. 28Guides at pages 322-323.
29. 29Termination letter dated March 11, 2021, exhibit 13, tab D11.
30. 30Exhibit Vocational Assessment, Mr. Winch, August 25, 2021, exhibit 25, tab 6A.
31. 31Ibid, footnote 14, at page 16.
32. 32Clinical Notes of Dr. Bricker, dated October 19, 2020, exhibit 11, tab C25, applicant document brief.
33. 33Physiatry Assessment Report by Dr. Steven Baker dated February 4, 2020, exhibit 31, tab C-12, respondent document brief.
34. 34Dr. Amena Syed, psychologist, Psychological Assessment Report, February 4, 2020, exhibit 16, respondent document brief, tab C14.
35. 35The OCF-2 dated December 2, 2019, exhibit 29 with attached pay stubs, Tab D3, applicant document brief.
36. 36February 11, 2021 clinical notes of Dr. Omar Alahi, family doctor, tab c-14, exhibit 17.
37. 37OCF-18, dated December 2, 2019, exhibit 35, tab A93, respondent document brief, page 440.
38. 38Response to medical recommendations dated December 4, 2019, respondent document brief, tab A95.
39. 39Exhibit 36, OCF-6, tab E16 of the applicant document brief dated December 4, 2020 denied December 8, 2020.