Licence Appeal Tribunal File Number: 19-014590/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:
Nicholas Crecoukias
Applicant
and
Toronto Transit Commission
Respondent
DECISION
ADJUDICATOR:
Deborah Neilson
APPEARANCES:
For the Applicant:
Nicholas Crecoukias, Applicant
Mr. Daniel Lee, Counsel
Nicole Walker, Counsel
For the Respondent:
Rowin Gocheco, TTC Manager
Chad Townsend, Counsel
Rhema Kang, Counsel
Nicole Mahadeo, Articling Student
Court Reporters:
Fiona Castillo and Leigh Masse
HEARD: by Videoconference:
December 6 to 15 and 20, 2021
REASONS FOR DECISION
BACKGROUND
1The applicant, Nicholas Crecoukias, was involved in an automobile accident on July 18, 2017, when he witnessed a woman who was killed by a bus. He sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The respondent, the Toronto Transit Commission, has paid the applicant the maximum allowed for medical, rehabilitation and attendant care benefits under the policy limits for non-catastrophic impairments. The applicant is claiming that he sustained a catastrophic impairment as a result of witnessing the accident. He is also claiming entitlement to attendant care benefits and medical and rehabilitation benefits consisting of occupational therapy services, rehabilitation support worker services and cost of living expenses.
3The respondent denies that the applicant sustained a catastrophic impairment as a result of the accident. The applicant was diagnosed with schizophrenia after the accident. The parties disagree on whether the accident caused the schizophrenia, whether the accident is the cause of his present functional impairments, and on the extent of his functional impairments.
4I have determined that the applicant has not established that he sustained a catastrophic impairment as a result of the accident.
PROCEDURAL ISSUES
5The following procedural issues arose at the hearing:
a. Whether the respondent’s psychiatric expert, Dr. Ali, should be excluded from any order excluding witnesses;
b. Whether the applicant may file a report by the respondent’s tort defence expert, Dr. Gnam, as an exhibit;
c. Whether Dr. Ali could testify on s.3.1(1)8 of the Schedule when she did not provide a report with her opinion on that matter; and
d. Whether a chiropractor, Dr. Persi, should be excluded from testifying on the basis he is not an expert.
A. Scope of the Order Excluding Witnesses
6At the outset of the hearing, the parties sought an order excluding witnesses, except for the respondent’s psychiatric expert, Dr. Sherose Ali. The respondent sought to have Dr. Ali present only during the testimony of the applicant’s expert psychiatrist, Dr. Pallandi, and offered for the exemption to apply to Dr. Pallandi during Dr. Ali’s testimony. The applicant objected on the basis of the risk that Dr. Ali will tailor her evidence. The applicant submitted that if I was inclined to allow Dr. Ali to be present for Dr. Pallandi’s evidence, that I require Dr. Ali to provide her evidence first in order to preclude her from tailoring her evidence. I excluded Dr. Ali from the order excluding witnesses for the following reasons.
7The respondent relied on Hurst v. Munch, 2012 ONSC 6592. The Court, in that case, held that experts are typically exempt from exclusion orders because there is little risk that they will tailor their evidence, since experts are not the ones providing facts and therefore their credibility is not usually at issue. The Court in that case had difficulty with the argument presented by plaintiff regarding credibility. The Court found that the defendant’s expert was well aware of the content of the plaintiff’s experts’ reports, and he anticipated a rigorous cross-examination challenging his assumptions, findings and conclusions.
8I am not bound by decisions from the Superior Court of Justice. However, I find the reasoning in the that decision is persuasive. Dr. Ali signed a form acknowledging that her duty as an expert in psychiatry is to the Tribunal. The fact that she provided an acknowledgement of expert duty is proof that she falls into the category of witnesses who have a different ethical duty than the regular fact witness.
9The applicant provided no reason or evidence to indicate there was a risk that Dr. Ali would tailor her evidence. He submitted that there was no authority requiring him to show that there is a risk of tailoring. However, given Dr. Ali’s acknowledgement of expert’s duty, there is an evidentiary shift that requires something from the applicant to refute that there is no risk of her tailoring her evidence.
10The applicant relied on the Rules of Civil Procedure, RRO 1990, Reg 194 by analogy in submitting that Dr. Ali should testify before Dr. Pallandi if she was not excluded from the hearing. Rule 52.06 (2) of the Rules of Civil Procedure states that an order may not be made excluding a witness whose presence is essential to instruct the lawyer for the party, but that the trial judge may require such a witness to give evidence before any other witness. The Rule is discretionary, and the applicant was unable to provide any case law where the court or trier of fact ordered a defending party’s expert witness who was essential to instructing counsel to testify before the moving party had concluded their case.
11Dr. Ali is exempt from the order excluding witnesses only for the purpose of attending for Dr. Pallandi’s evidence. For the reasons given I find that any risk that Dr. Ali would tailor her evidence is negligible. Accordingly, she was not required to testify before any of the applicant’s witnesses testify.
B. Admission of Dr. Gnam’s Report
12The parties filed a joint book of documents. The applicant also filed an additional brief containing documents that were not in the joint book of documents. Neither brief contained the report of Dr. Gnam, psychiatrist. The applicant sought to make it an exhibit while cross-examining Dr. Woodall, the respondent’s toxicologist. The respondent objected on the basis it had no notice that the applicant intended to rely on the report and that it was a defence medical report obtained by the respondent pursuant to Rule 33 of the Rules of Civil Procedure in the tort action. The parties in the proceeding before the Tribunal are the same parties and counsel as in the tort action. Dr. Gnam’s report was referred to in Dr. Woodall’s report and provided to her by the respondent. The respondent advised that Dr. Woodall was under a joint retainer for both the accident benefit application and the tort action.
13The applicant submitted that because Dr. Gnam’s report came from the respondent, it was well aware of the contents. Therefore, there was no requirement for the applicant to notify the respondent of the “existence” of the document under LAT Rule 9.2(a)1 or serve a copy on the respondent under LAT Rule 9.2(c) because it was the respondent who produced it.
14The respondent submitted that the document is covered under the deemed undertaking rule, which was codified as Rule 30.1.01(3) of the Rules of Civil Procedure, and that the respondent did not consent to its use in the Tribunal hearing. It relied on David v. Tangri, 2017 ONSC 5361, a Superior Court of Justice decision that held that the Court retains jurisdiction for determining whether the deemed undertaking rule should apply to a document produced as part of the court discovery process. The respondent submitted that the method for a party to deal with tort discovery documents to be used at the Tribunal is to first seek the respondent’s consent and, if that is not given, to then bring a motion before the Court for an order that the deemed undertaking rule does not apply. The respondent submitted that the applicant did neither.
15The respondent also relied on 17-007909 v Chieftain Insurance2, 2017 CanLII 147726 (ON LAT). In that case a tort defence medical was admitted as evidence before the Tribunal. The insured in that case obtained consent from the tort counsel.
16The applicant submitted that the deemed undertaking rule is not part of the Tribunal’s Rules and that the Tribunal is not bound by the Rules of Civil Procedure. I agree with the applicant that the Tribunal is not bound by the Rules of Civil Procedure. However, I am not persuaded that the deemed undertaking rule does not apply to the Tribunal. Lac Minerals Ltd. v. New Cinch Uranium Ltd. et al., 1985 CanLII 2251 (ON SC)3 held that the deemed undertaking rule applied in Ontario, even though it was not codified at that time. I take it to mean that it applies regardless of the forum. The deemed undertaking rule was subsequently codified under Rule 30.1.01(3) of the Rules of Civil Procedure. Section15(1) of the SPPA4 allows any document relevant to the proceeding to be admitted as evidence. Under s.15(3) of the SPPA, the admissibility of a document is subject to the provisions of any Act expressly limiting the extent or purposes for which the document may be used in any proceeding. The Rules of Civil Procedure are not an Act, but are a regulation made under an Act, the Courts of Justice Act, RSO 1990, c C.43. I find that the intent of the SPPA is clear that if the deemed undertaking rule that is applicable to court matters prohibits the production of documents, then the SPPA does not overrule the Rules of Civil Procedure. However, s.15.1 of the SPPA, allows previously admitted evidence from another proceeding if the parties to the present proceeding consent.
17I agree with the respondent that if the applicant intended to rely on Dr. Gnam’s report, the preferred method for addressing that would have been to contact the TTC to see if they waived the deemed undertaking rule or to bring a motion before the Court. I am not satisfied by the applicant’s submission that, due to litigation tactics, he was not required to notify the respondent of his intention to rely on Dr. Gnam’s report. The LAT Rules are very clear that a party intending to rely on an expert’s report is required to serve an Acknowledgement of Expert’s Duty form in the requisite form under LAT Rule 10.2(b). However, Dr. Woodall’s report listing Dr. Gnam’s report was not served on the applicant until October 13 or 14, 2021 and the hearing was scheduled to proceed on November 14, 2021 or a mere month away. It is highly doubtful that the Toronto Court would have heard a motion in that time. Further, by producing Dr. Gnam’s report to Dr. Woodall where she was preparing a report for use in the LAT proceedings, I find that the respondent by its actions consented to Dr. Gnam’s report being used for the LAT hearing. In fact, Dr. Gnam’s report and the transcript from the applicant’s examination for discovery in the tort action were the only documents listed in Dr. Woodall’s report. 5 To be clear, I am not usurping the Court’s jurisdiction on the deemed undertaking rule. I find that the respondent consented to using Dr. Gnam’s report in the accident benefit matter under s. 15.1 of the SPPA by providing it to Dr. Woodall for her opinion. My decision on the issue turns solely on the particular facts of this case and nothing in this decision should be taken to establish a precedent.
18The respondent submitted that it was prejudiced by not having notice ahead of time that the applicant was going to rely on Dr. Gnam’s report. I find that the probative value of Dr. Gnam’s report outweighs any potential prejudice to the respondent that cannot be addressed by a short adjournment. I ordered that it may be made an exhibit. Since it was the applicant who was relying on Dr. Gnam’s report, the respondent was entitled to cross-examine Dr. Gnam on his report. Accordingly, a short adjournment was granted to allow the respondent time to prepare for Dr. Gnam’s cross-examination.
C. The Scope of Dr. Ali’s Testimony
19The applicant submitted two applications to the respondent for catastrophic impairment. The first one by Dr. Sun dated January 2, 20196 and the second one by Dr. Pallandi dated November 3, 2019. Dr. Sun’s application was based on criteria 7, a mental or behavioural impairment combined with a physical impairment resulting in a 55% or more whole person impairment (“WPI”) Dr. Pallandi’s application was based on criteria 8, a class 4 marked or class 5 extreme impairment due to a mental or behavioural disorder. Dr. Ali is a psychiatrist who was retained by the respondent to conduct an insurer’s examination of the applicant under ss. 44 and 45 of the Schedule (“IE”). She prepared a report in response to Dr. Sun’s application. The respondent asked Dr. Ali for her opinion on criteria 8 under the fourth edition of the American Medical Association Guides to Permanent Impairment7 on the four spheres of function when she was testifying. She did not address this in her opinion. The applicant objected on the basis he was prejudiced. The applicant submitted that a determination of criteria 8 is an opinion and, therefore, it should have been addressed as an addendum report. I agreed.
20However, I am also persuaded by Howe vs. The Commonwell Mutual Insurance Group, 8 in which the Tribunal ruled on the scope of direct examination of a witness. In that case, the respondent sought to introduce the testimony of the applicant’s expert that was not set out in a report served within the timelines. In that case, the Tribunal stated that as a starting point, under subsection 15(1) of the SPPA, the Tribunal is permitted to admit as evidence at a hearing, any oral testimony and any other document or other thing relevant to the subject-matter of the proceeding and may act on such evidence, but the Tribunal may exclude anything unduly repetitious. Subsection 15(2) of the SPPA provides that nothing is admissible in evidence at a hearing, (a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or (b) that is inadmissible by statute under which the proceeding arises or any other statute.
21I agree with the Tribunal’s reasoning in Howe vs. The Commonwell Mutual Insurance Group that the SPPA applies and that the language in s. 15 of the SPPA is permissive: the Tribunal may admit the oral testimony. It is not compelled by s.15 to admit the oral evidence, it merely has the discretion to do so. I also agree that the Tribunal’s practice is to allow a wider scope of admissibility, and routinely admit evidence that would otherwise be inadmissible in the courts (i.e., hearsay evidence) and determining whether such evidence is reliable and how much weight should be attached to what would otherwise be inadmissible.
22I found that the relevance of Dr. Ali’s testimony outweighed any potential prejudice suffered by the applicant and allowed her to testify to anything reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding. Given the nature of her evidence on the six spheres of function in the 6th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment,9 I found that there should be no surprise to the applicant about Dr. Ali’s testimony. The following chart shows that the six spheres of function in the AMA Guides 6th edition are essentially the same as the four spheres under the AMA Guides:
(1)
(2) AMA Guides 6th edition
AMA Guides
(3) 1
(4) Self-care, personal hygiene, and activities of daily living
Activities of daily living
(5) 2
(6) Role functioning, social and recreational activities
Social functioning
(7) 3
(8) Concentration, persistence, and pace
Concentration, pace and persistence
(9) 4
(10) Resilience and employability
(11) Adaption in the workplace
5
Travel
6
Interpersonal relationships
23The AMA Guides 6th edition added travel and interpersonal relations that were assessed under activities of daily living and social functioning. Those spheres of function are assessed as activities of daily living and social functioning under the AMA Guides.
24Although Dr. Ali did not prepare a report, she drafted notes that she relied upon in her testimony. Those notes were produced to the applicant and, accordingly, the applicant had the opportunity to review Dr. Ali’s notes on her opinion about criteria 8 of the AMA Guides before cross-examining her. Further, I anticipated that there may be a short adjournment for the respondent to prepare for Dr. Gnam’s cross-examination, which would also allow the applicant to prepare for Dr. Ali’s cross-examination. The short adjournment would have alleviated any prejudice to the applicant from Dr. Ali testifying on s.3.1(8) of the Schedule. The applicant advised he did not require an adjournment to prepare for her cross-examination. Any other prejudice to the applicant was cured by allowing the applicant to call reply evidence from his expert witnesses and additional expert witnesses that were not contemplated.
25The applicant advised that it needed a report from its expert to provide reply evidence rather than calling the expert to testify in reply within the time allowed for the hearing. The Tribunal was unable to accommodate further hearing dates. Accordingly, I allowed the applicant to file a reply report from Dr. Pallandi, his expert psychiatrist, or any other witness in reply to Dr. Ali’s testimony. The parties were provided with an opportunity to file submissions on the reply report in writing. The applicant ultimately chose not to file any reply evidence or submissions.
D. Exclusion of Dr. Persi from Testifying
26The respondent submitted that Dr. Adriano Persi, chiropractor, should be excluded from testifying. Dr. Persi prepared a report rating the applicant under four spheres of function for a mental and behavioural impairment as set out in chapter 14 of the AMA Guides. Chapter 14 pertains to mental and behavioural disorders. I agreed with the respondent’s submissions that Dr. Persi is not qualified to provide ratings under chapter 14 of the AMA Guides but did not exclude him from testifying for the following reasons.
27As a chiropractor, Dr. Persi’s practice is limited to providing opinions on the spine and musculoskeletal system, not on the severity of functional impairment caused by mental or behavioural impairments.10 The assessment of mental or behavioural impairments is not within the scope of practice of a chiropractor. It is within the scope of practice of a psychologist and a physician.11 Dr. Persi testified that he has been trained in the use of the Guides. His CV states that he has been certified in the 5th and 6th editions of the American Medical Association Guides to Permanent Impairment by the American Board of Huntington. The applicant submitted that based on his training, Dr. Persi is an expert in the application of the Guides. However, his CV states that he received training on the 4th edition at the Canadian Memorial Chiropractic College. There was no evidence to indicate that the Canadian Chiropractic College training extended beyond the spine and musculoskeletal system.
28The applicant submitted that by applying the Guides to the findings and opinions of Dr. Pallandi and Ms. Franic, the occupational therapist, Dr. Persi was not providing a medical opinion. The applicant later admitted that rating the severity of a mental or behavioural impairment is the operation of providing opinion evidence. If I am wrong in finding that an expert who provides a rating under chapter 14 is providing a medical opinion, then such an expert is only giving a fact opinion. If that is the case, then Dr. Persi’s testimony on the rating was an attempt to usurp my position as the finder of fact and is therefore duplicative. In fact, when asked how Dr. Persi’s testimony as an expert in the Guides would assist me in making my determination, Dr. Persi answered that he has experience as an adjudicator on various tribunals. His answer supports my determination that any testimony he gave with respect to chapter 14 would be as a fact finder.
29Dr. Persi testified that he was the one who decided what disciplines were required to assess the applicant and determined who would do the assessments. Dr. Pallandi testified that he did not make the determination about the severity of the applicant’s impairments under chapter 14 of the AMA Guides. This was done by Dr. Persi. Dr. Pallandi testified that he was very familiar with the AMA Guides after having utilized them in hundreds of cases. He signed off on Dr. Persi’s opinion. I find that this effectively precluded cross-examination on the severity of the applicant’s functional impairments of the expert retained by the applicant who is most qualified to make such a determination, Dr. Pallandi. He just deferred to Dr. Persi’s opinion upon cross-examination.
30I am not convinced that the format of the assessments and the reports are in keeping with s.45 of the Schedule, which requires the assessment be conducted by a physician. Having said that, I allowed Dr. Persi to testify for the following reasons.
31I would have excluded Dr. Persi as a witness as he was not qualified to testify on psychological impairments and any testimony he gave on the Guides was duplicative of my function as the trier of fact. However, the applicant filed a motion in September 2021 to add Dr. Persi as a witness at the hearing. I found that the time for the respondent to oppose Dr. Persi as a witness at the hearing was at the motion and not during the hearing. By not opposing the applicant’s motion, the respondent essentially consented to Dr. Persi testifying. Accordingly, I qualified him as an expert in the AMA Guides with respect to the spine and musculoskeletal system only.
ISSUES
32The issues before me were as follows:12
(1) Has the applicant sustained a catastrophic impairment as defined by the Schedule?
(2) Is the applicant entitled to an attendant care benefit in the amount of $6,000.00 per month from June 20, 2018 to date and whether any of the attendant care claimed was incurred?
(3) Is the applicant entitled to a medical benefit in the amount of $4,429.76 ($10,490.36 less $6,060.60 approved) for rehabilitation support worker services13 recommended by Erin Mathison, occupational therapist of Genesis Community Rehabilitation Inc., in a treatment plan dated September 27, 2018 submitted on October 30, 2018 and denied by the respondent on November 2, 2018?
(4) Is the applicant entitled to a medical benefit in the amount of $4,208.80 ($12,587.80 less $8,379 approved) for rehabilitation support worker services recommended by Erin Mathison in a treatment plan dated November 22, 2018.14
(5) Is the applicant entitled to a medical benefit in the amount of $12,587.80 for rehabilitation support worker services recommended by Erin Mathison in a treatment plan dated February 1, 2019 and denied by the respondent on April 3, 2019?
(6) Is the applicant entitled to a medical benefit in the amount of $12,587.80 for rehabilitation support worker services recommended by Erin Matheson in a treatment plan dated February 25, 2019 and denied by the respondent on February 27, 2019?
(7) Is the applicant entitled to a medical benefit in the amount of $12,587.80 for rehabilitation support worker services recommended by Erin Matheson in a treatment plan dated June 13, 2019 and denied by the respondent on June 19, 2019?
(8) Is the applicant entitled to a payment in the amount of $21,983.19 for parking, prescription, medical and living expenses submitted on an OCF-6 expense claim form dated October 25, 2018 and denied by the respondent on October 29, 2018?
(9) Is the applicant entitled to interest on overdue payment of benefits?
33The respondent advised that the applicant has used up his policy limits for medical, rehabilitation and attendant care coverage for non-catastrophic impairment. Therefore, unless the applicant sustained a catastrophic impairment, he is not entitled to any of the benefits claimed.
Analysis
34The applicant saw the remains of an elderly woman who was struck and killed when she got off of the TTC bus that the applicant was riding on July 18, 2017. A few days later the applicant started experiencing auditory hallucinations. As a result, his mother, who lived in Greece, came to Canada to be with the applicant. The applicant stopped staying in his basement apartment because he could hear the voices of his cousin, who lived in the apartment in the floor above him, and her boyfriend. He believed that people were out to kill him. By July 30, 2017, he was staying next door to his apartment at his aunt’s house with his mother. He cut himself superficially in the neck, left wrist, and abdomen on July 30, 2017 in an attempt to pre-empt the people who were coming to kill him. He since has had two other audio hallucinations, about four other hospital attendances and believes that he is being neuro-monitored. He has more recently been diagnosed with schizophrenia.
35Before addressing whether the applicant sustained a catastrophic impairment, I must address whether the applicant’s psychosis and/or schizophrenia is the natural progression of a pre-existing psychiatric illness or whether there is a substantial connection between his present psychological condition and the accident.
36The psychiatrists all agreed that psychosis or a psychotic disorder is a symptom that can be triggered by a mental illness and consists of symptoms such as delusions or hallucinations or both. For a diagnosis of schizophrenia, a person must have two or more of the following symptoms; delusions, hallucinations, disorganized speech, grossly disorganized or catatonic behaviour, or diminished emotional expression, during a one month period or less if successfully treated.15 Hallucinations can be auditory, such as hearing voices, tactile or visual. Delusions are a belief in something that is not true, such as paranoid delusions that a person’s safety is at risk, persecutory delusions that someone or some authority is out to blame and/or imprison, or delusions of grandeur such as a belief that the person is a god or a ruler. A psychotic episode is when a person shows two symptoms of delusion, one of which is hallucinations.
37The psychiatrists all testified that the risk factors for psychosis include the use of cannabis at a young age, family history of psychosis, or experiencing a traumatic event. Cannabis use disorder is where there is some functional impairment such as social or work because of cannabis use.
38The consensus among the psychiatrists is that prior to a person being diagnosed with schizophrenia, he may undergo a prodromal stage. In the prodromal stage, there is not usually any psychosis. The prodromal stage may be long, for years, and may include social isolation, lack of motivation, blunt effect, marked lack of interest and energy and academic or employment failure.16 The respondent submits that the applicant’s pre-accident history is consistent with being prodromal.
A. Cause of Schizophrenia
39Based on the overwhelming consensus of evidence, I find that the applicant’s pre-accident history is as follows:
a. The applicant’s parents split up when he was 10 or 11 months old, and he was raised by his mother in his grandparents’ house until the age of 13;
b. He was close to his grandfather, who died a few weeks after the applicant’s mother remarried and the applicant moved out with her to live with his stepfather in Toronto;
c. They moved to Montreal about a year later where the applicant was enrolled in a French speaking school when he knew no French;
d. The applicant moved to Greece to be with his biological father and two stepbrothers about 6 months after he moved to Montreal and was still upset with his mother and stepfather;
e. After living in Greece for about 3 to 4 months, the applicant moved to Vancouver to live with his mother and stepfather;
f. He quit high school when he was in grade 11 having failed some grade 10 and grade 11 courses;
g. The applicant started smoking marijuana at age 13;
h. For a number of years he was consuming up to 12 grams of cannabis per day;
i. He has only had one romantic relationship that occurred when he was an adolescent;
j. He was last employed in 2007 and since then has been supported by his stepfather and his mother;
k. The applicant’s mother moved to Greece when the applicant was about 27 years old;
l. He only had two friends from high school that he would see not too regularly, about once per month;17 and
m. His maternal cousin, Stephen, was diagnosed with schizophrenia.
40Some of my findings are contrary to the applicant’s and his mother’s testimony. The applicant was very sure about dates pertaining to events that he alleged were accident related. Some of the medical evidence, including the evidence of Dr. Sum, the applicant’s treating psychiatrist, and Dr. Pallandi, was that the applicant was a good historian. However, I found that he was a poor historian. His testimony often contradicted the medical records and the evidence he gave under oath. He had a poor memory for certain events and, in other cases, completely denied events occurred despite being written contemporaneously in the medical records. Where his testimony conflicted with what he told various health practitioners, the applicant could not recall the circumstances surrounding his disclosure or recall anything about the history he gave to the practitioners. He admitted that his memory is very bad. However, when asked for an explanation as to why his memory was very clear for some events and poor for others, the applicant could give no answer. Nor was any reason provided for why the medical records would inaccurately record events. On the contrary, the evidence was overwhelming that a physician taking records of a psychiatric patient must be even more careful with taking a medical history and making notes given the importance that the medical history has on narrowing down a diagnosis.
41I found that where there were discrepancies between the records and the testimony of Effie Prototapas, the applicant’s mother, I prefer the records. The reason is because Ms. Prototapas’ memory appeared to be selective and serving only her son’s accident benefit claim. For example, Dr. Sum testified that the applicant and his mother were very resistant to the diagnosis of schizophrenia. I heard testimony from the experts that denial or lack of insight is common in people with schizophrenia. While this accounts for the applicant’s refusal to accept the diagnosis, it did not explain his mother’s refusal. There was no reason given for Ms. Prototapas’ to distrust the diagnosis of a medical expert. The only reason offered was from the respondent who submitted that Ms. Prototapas believed a schizophrenia diagnosis would harm her son’s case against the respondent. This is especially so given that her nephew was diagnosed with schizophrenia and, therefore, she knew that schizophrenia ran in the family.
42The applicant and his mother, Effie Prototapas, both testified that the applicant has been unable to work since 2008 because of a genetic abnormality with his back and that this has bothered him since the age of 13. The applicant started living on his own at the age of 25 or in and around 2001. He stopped working at his last job, which was part-time at Maria’s Taverna in Vancouver as kitchen help, because he did not like working there. He was supported by his mother through 2004 to 2005 when the applicant was self-employed as an art distributor. He testified that he did not earn any income during that period of time. He and his mother testified that he earned no income from his self-employment as a furniture designer.
43Ms. Prototapas testified that when she lived in Vancouver and after the applicant moved out, she saw him three to four times per week for dinner. He spent his time skate boarding, riding a bicycle and being with friends. He could not work because of a congenital back problem. I find that it is illogical that back complaints prevented the applicant from working, but not from skateboarding or riding a bicycle.
44Effie Prototapas testified that the applicant had a good relationship with his stepfather. She usually came to Canada once a year from Greece on her own to visit the applicant. She did not do so in the two years before the accident because her husband’s health was poor. He was diagnosed with cancer in 2004 and died in December 2016. Ms. Prototapas visited the applicant from May to June 2017. During that time, they saw each other every day. They went for lunch together, to the mall, and the applicant spent a lot of time with his grandmother. Ms. Prototapas did not know what activities the applicant normally did in Toronto other than baking bread.
45Ms. Prototapas testified that applicant phoned her on the day of the accident and told her that he started hearing voices that day. She denied telling Dr. Claudia Frankfurter that “about three days after the incident, he ‘snapped’ and started to be paranoid.”18 I find Dr. Frankfurter’s note is more accurate than Ms. Prototapas’ testimony for the reasons already given. Further, it is corroborated by a note Ms. Prototapas wrote to Dr. Sum advising that she asked the applicant when he started hearing voices. Ms. Prototapas told Dr. Sum that he said it was a few days after he witnessed the accident.19 Ms. Prototapas testified that the reason she asked the applicant when he started hearing voices was because he appeared confused. I find that her explanation requires me to accept that Ms. Prototapas’ current memory of events that took place four years ago was excellent and that the psychiatrists who testified, the medical practitioners at the hospitals and CAMH 20were all poor and sloppy record keepers. I am unable to do so given Ms. Prototapas’ poor memory for events that do not support her son’s accident benefit claim.
46I heard testimony from Dr. Sum, the applicant’s treating psychiatrist, Dr. Pallandi, the psychiatrist retained by the applicant to conduct a catastrophic assessment under s.45 of the Schedule, Dr. Sherose Ali, a psychiatrist who was retained to conduct an IE of the applicant, and Dr. Gnam, the psychiatrist who conducted a defence medical examination of the applicant in his tort action. Where they disagree is whether, but for the accident, the applicant would have schizophrenia or a psychotic episode.
47I found Dr. Sum testified in a straightforward manner. She testified that a traumatic event could trigger psychosis where there are risk factors for psychosis or schizophrenia, such as in the applicant’s case. The applicant had denied using up to 12 to 14 grams of cannabis on a daily basis before the accident. Dr. Sum, in addition to a number of other physicians, had recorded the applicant’s daily use as up to 12 to 14 grams per day. The applicant explained the discrepancy on the basis the physicians misunderstood what he said because he had a prescription for that amount, but never consumed that much because he could not afford it. He also grew anywhere from 4 to 10 plants in his apartment. Dr. Sum testified that her notes on the quantum of cannabis the applicant consumed per day was from what the applicant told her. I accept that the applicant was consuming up to 12 grams of cannabis per day since 2010 consisting of 6 grams by smoking and 6 grams of edibles. He told this to Dr. Sum and admitted this level of drug use at his examination for discovery.21
48The testimony and evidence of the majority of the experts was that the applicant’s long history of heavy cannabis consumption increased the risk of him developing an acute psychotic episode. Dr. Gnam’s opinion was that the cannabis use did not cause the psychotic episode but may have been a risk factor. This is consistent with Dr. Sum’s opinion that, because the applicant was still experiencing delusions when he was no longer consuming cannabis, his psychotic episode was not induced by the cannabis. However, she also testified that his psychosis improved with medication and reduced cannabis use. I find that the applicant consumed cannabis just prior to going out the day of the accident based on his testimony. He stated under oath that he did not consume cannabis after the accident. However, the applicant’s mother testified that he continued to consume cannabis after the accident. I find that he continued to consume cannabis up until his admission to CAMH in July 2018. At that time, the applicant advised the staff at CAMH that he last consumed cannabis in January 2018. He also advised he had stopped cannabis a few months prior to his admission.22
49Dr. Sum initially diagnosed the applicant with cannabis induced psychosis, rule out schizophrenia. She later amended her diagnosis to schizophrenia at the point that the applicant was no longer using cannabis but was still experiencing psychosis. She testified that the accident played a significant role in the onset of the applicant’s psychosis. Her opinion was based on the information from the applicant and his mother that the applicant underwent a sudden very distinct change immediately after the accident. According to what the applicant and his mother told Dr. Sum, the applicant did not have any symptoms associated with schizophrenia before the accident. However, Dr. Sum testified that the applicant may have had baseline paranoia for years. This is an underlying or chronic suspiciousness that sometimes is seen in a diagnosis of schizophrenia later in life or could be a prodrome. She added that the paranoia would not go on for years if it was a prodrome. However, I previously rejected her opinion on the length of the prodrome given it is at odds with the opinions of the other psychiatrists.
50Dr. Pallandi was also fairly straightforward with his evidence. He testified that the accident precipitated or triggered the applicant’s schizophrenia. However, he also testified that the studies done on whether witnessing a trauma will trigger a psychosis found the subjects who developed schizophrenia as a result of witnessing a traumatic event also had post traumatic stress disorder {“PTSD”) as a result. There were no studies that found a correlation between a traumatic event and schizophrenia without PTSD. His opinion was that the applicant did not have PTSD.
51I find that the applicant was more probable than not prodromal prior to the accident for the following reasons.
52The psychiatrists all agreed that a person may have psychosis for years without a diagnosis because the person does not see medical professionals. If there is no physician, family or friend seeing the person on a regular basis, then in some cases, there may be an unawareness of the symptoms or the disorder. Both Dr. Pallandi and Dr. Ali testified that an absence of the awareness of the symptoms of schizophrenia through the entire disorder is often a symptom of it. All of the psychiatrists agreed that there is a correlation between childhood trauma and schizophrenia, but no robust link between adult trauma and schizophrenia. However, there is a link between PTSD and adult schizophrenia.
53The other consensus among the psychiatrists is that a person with schizophrenia can have cognitive difficulties, difficulties with executive function and concentration, especially while under stress.
54When asked if any stressful event could have triggered the applicant’s schizophrenia or if he could have gone on for years functioning as he did pre-accident but for the accident, Dr. Sum testified that any stressful event would have precipitated the applicant’s schizophrenia. All of the psychiatrists agreed that stressful life events can trigger schizophrenia.
55Dr. Pallandi testified that the applicant’s paranoia for ten years and the fact that his maternal cousin was diagnosed with schizophrenia were suggestive that the applicant had an increased risk for developing psychopathology.
56Dr. Gnam’s opinion was that, unless the applicant had a psychotic episode or was prodromal prior to the accident, the accident caused his acute psychosis that eventually led to his hospitalisation. Dr. Gnam’s opinion was the accident caused his psychotic disorder. He reported that the broad consensus among most psychosis experts is that stress and adverse life events may precipitate and/or adversely affect the clinical course of psychosis. Despite this, Dr. Gnam’s opinion was that, even if the applicant had a biological predisposition to develop a psychotic disorder, there was no scientific basis to assume or conclude that he would have inevitably developed such a disorder had the subject accident not occurred.
57Dr. Gnam did not comment on the evidence in Dr. Pallandi’s report that the applicant had been aware of neuromonitoring since 2016. I accept Dr. Pallandi’s evidence that the death of a parent, social adversity and isolation are all factors in schizophrenia. Dr. Pallandi found the applicant was a thoughtful historian and did not have a poor memory for events. Dr. Pallandi testified that trauma is associated with schizophrenia but is not a cause of it. This is different from Dr. Gnam’s determination that the accident was the proximate cause of the applicant’s schizophrenia.
58Dr. Ali testified that it was her opinion that the applicant was chronically psychotic prior to the accident, but not acutely psychotic.
59The Sunnybrook Hospital records from the applicant’s admission on July 30, 2017 state that Ms. Prototapas reported to the attending resident, Dr. Claudia Frankfurter, that for the previous few days, the applicant refused to leave the home where he lived and worried that people were trying to kill him. She reported the applicant had paranoid behaviour for 10 years, not wanting to go to specific restaurants and expressing worries. He was angry as an adolescent and was a loner because he did not want to be around people who disapproved of his marijuana use.23
60Ms. Prototapas did not deny stating this and testified that she had no reason to believe she said anything different to the Sunnybrook physicians. However, she denied saying that the applicant was paranoid. She testified that the applicant was always after her to use the internet or her bank card because he was never paranoid. She testified that she must have been talking about an incident in Vancouver where the applicant raised a fuss while waiting in a line up for a particular restaurant, then thought everyone was staring at him. As a result, he always avoided that particular restaurant. She testified that her comment about people watching him was about the applicant after the accident and the incident at the Mexican restaurant. However, she also stated that she does not recall giving the information because she was very stressed after having woken up to her son having cut his wrists, neck and abdomen.
61Dr. Claudia Frankfurter testified that she recorded the July 30, 2017 history in the Sunnybrook records provided by the applicant’s mother. Dr. Frankfurter was at the end of her third year as a medical student so had been taking medical histories for 10 to 11 months when the applicant attended at Sunnybrook. At that point she was very comfortable recording a medical history, even though a psychiatric history was novel to her at that point and taking a psychiatric history is somewhat different from other clinical settings. A psychiatric history delves much deeper into past psychological history, moods, substance use and is more of a narrative history from the patient than a yes/no type of history. Although she did not have an independent recall, usually the history would be obtained by both her and the attending psychiatrist. They would have seen the applicant together and the attending psychiatrist would have reviewed the notes and could override them if there were any errors. Further, her notes would have been supervised by the attending psychiatry resident, Dr. Arfeen. Although she did not have an independent memory of the occasion, I am satisfied that Dr. Frankfurter recorded what the applicant’s mother told her.
62The ten years of paranoia recorded by Dr. Frankfurter is consistent with the applicant’s information to Dr. Pallandi on June 19, 2018. The applicant told Dr. Pallandi of a process called neuromonitoring and that he had been aware of the process for almost two years. Although Dr. Pallandi understood the neuromonitoring to have occurred only since the accident, he confirmed that the comments were made by the applicant. The applicant’s counsel submits that the comments were in reference to the applicant having been aware of neuromonitoring for almost two years before he saw Dr. Pallandi. However, if that were the case, the applicant would have stated he was aware of the process for “more” than two years as he stated that he attended at a hospital about three days after the accident to be checked for a computer in his head. I find it makes more sense that the “almost two years “ reference was to the June 19, 2018 date. In other words, he was aware of the neuromonitoring since late 2016, but was able to confirm it in June 2018 or almost 2 years after he first became aware of it.
63Dr. Gnam testified that if there was evidence that the applicant had a lack of motivation and was socially isolated prior to the accident, it would not prove that he was prodromal, but would raise the probability that he was. Dr. Gnam was not prepared to make that finding of fact. The history of ten years of paranoia that Dr. Frankfurter recorded, and of not going to a restaurant due to paranoia raised the issue of a prior acute psychotic episode or of pre-MVA prodromal. Dr. Gnam could not say whether the references to pre-accident paranoia were because post-accident delusion led the applicant to reinterpret past events or because he had previous prodromal symptoms or past psychosis. His opinion was that if the information Dr. Frankfurter recorded was correct, then the applicant likely had a pre-existing disorder, and the accident caused a relapse or an exacerbation. Dr. Gnam testified that the applicant’s pre-accident lifestyle, which included an absence of labour market participation and relative social isolation, was consistent with a history of prodromal psychosis. He could not say the applicant was prodromal because the history provided by the applicant and his mother was irreconcilably different from the pre-accident history recorded in the applicant’s medical records. Dr. Gnam felt that he would usurp my role by providing an opinion.
64Dr. Sum recorded in her clinical notes that there were reports of baseline paranoia for several years and not from the mother’s account. The notes alluded to the applicant seeing someone for cannabis use and psychosis. However, Ms. Prototapas was consistent in telling Dr. Sum that the applicant did not see anyone. Dr. Sum testified that she was not sure that Ms. Prototapas meant the applicant was paranoid in a psychotic way. It could be the applicant had mild suspicions that did not cross the threshold to mental illness. Dr. Sum was not asked about the applicant advising Dr. Pallandi that he was aware of neuromonitoring since 2016.
65In response to the evidence that the applicant could have been either prodromal or psychotic for years before he was diagnosed with schizophrenia, the applicant suggested that if he had any symptoms of schizophrenia or psychosis he would have sought medical attention long before he did. He disagreed. He attended at two different hospitals three days after the MVA seeking a CT scan and testified that the reason was because he believed a chip or computer was implanted in his brain. However, he told the staff at the hospitals he had been experiencing headaches for four months. Dr. Sum testified that the applicant may minimize psychotic features because of fear of being labelled with schizophrenia.
66I find that the applicant was more probable than not prodromal for years before the accident and that any stressful life event, such as the death of his stepfather who supported the applicant for years or witnessing the accident, could have triggered a psychotic episode.
67I find that given that the applicant was prodromal, regardless of the accident the applicant would have eventually been diagnosed with schizophrenia. However, the accident was a stressful event, and the applicant experienced an acute psychotic episode within days of the accident. Although the death of his stepfather may have been stressful, it occurred in December 2016 or more than six months before the applicant claimed he started hearing voices. For these reasons, I find that the accident triggered an acute psychotic episode. In other words, but for the accident, the applicant would not have had a number of the psychological impairments that he had, such as a fear of the auditory hallucinations recurring.
B. Catastrophic Impairment
68The applicant has the onus of proving he sustained a catastrophic impairment by showing that he sustained an impairment in the accident that resulted in a class 4 marked impairment in three spheres of function or a class 5 extreme impairment in one or more spheres of function due to a mental or behavioural disorder under s.3.1(8) of the Schedule. The impairment must be assessed in accordance with chapter 14 of the AMA Guides. The areas of function are: 1) activities of daily living; 2) social functioning; 3) concentration, persistence and pace; and 4) adaption to or deterioration or decompensation in work or work-like settings. The levels of impairment are as follows:
Area or aspect of functioning
Class 1: No impairment
Class 2: Mild impairment
Class 3: Moderate impairment
Class 4: Marked impairment
Class 5: Extreme impairment
Activities of daily living Social functioning Concentration, pace and persistence Adaption
No impairment is noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some, but not all, useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning
69The applicant relies on the executive report of Dr. Persi, chiropractor, who reported that the applicant developed a number of mental or behavioural impairments that result in an overall extreme level of impairment due to a mental or behavioural disorder, with a Class 5 (extreme impairment) level of function in all four areas of function. Dr. Pallandi testified that the level of impairment was determined by Dr. Persi. Dr. Pallandi signed the report in which Dr. Persi presented his opinion but testified the applicant’s level of impairment was in the middle group of people with schizophrenia in terms of his function.
70I give no weight to Dr. Persi’s determination that the applicant sustained a Class 5 extreme impairment as he is not qualified to assess mental and behavioural impairments under s.45 of the Schedule nor under the Chiropractic Act, 1991. Dr. Pallandi testified that Dr. Persi wrote the portion of the report under the psychiatric section dealing with the ratings of impairment. 24 Although Dr. Pallandi signed Dr. Persi’s report, Dr. Persi’s opinion conflicts with Dr. Pallandi’s testimony and other evidence of the applicant’s level of function.
71Dr. Pallandi reported that he did not ask the applicant about how he spent his average day prior to the accident. Dr. Pallandi agreed that Dr. Persi’s statement about the applicant’s concentration, persistence and pace was an overstatement given the applicant’s ability to drive a car. Dr. Pallandi testified that he did not believe the applicant was incapable of living without his mother, but that he chose to live with her.
72Dr. Ali’s opinion was that if the accident caused the applicant’s schizophrenia, then her opinion was that he had a marked impairment in his activities of daily living and a moderate impairment in the other three spheres of function.
73I find that the applicant has failed to prove on a balance of probabilities that he has a class 4 marked impairment in three out of the four spheres of function or a class 5 extreme impairment in one or more spheres of function due to a mental or behavioural disorder as a result of the accident.
Activities of Daily Living
74Dr. Malik prepared a physician’s report for the applicant’s application to the Ontario Disability Support Program (“ODSP”) dated March 5, 2019.25 He found that the applicant had a moderate impairment in only 2 out of 24 areas of daily living. Otherwise the applicant’s function was within normal limits, or he had mild or slight limitations. The two areas of moderate limitation, meaning he may on some occasions be unable to complete the task with or without accommodations, were financial responsibility and housekeeping. The only limit to his housekeeping abilities was his motivation.26 This is to be contrasted with the reports of Cristyn Franic, an occupational therapist who assessed the applicant at Dr. Persi’s request on September 23, 2019 and the report of Ranya Ghatas, the occupational therapist who participated in the catastrophic IE assessment of the applicant.
75Cristyn Franic reported that the applicant’s ability to perform tasks was compromised by his physical abilities and impaired cognition. I find that any physical disability that affected the applicant’s ability to engage in his daily activities of living would have been the same pre-accident as post-accident given that the applicant did not sustain any physical injury in the accident. Ms. Franic stated that they would affect his ability to engage in housekeeping tasks at a reasonable pace and would take him an unreasonable amount of time to prepare a meal. Her opinion was that the applicant’s cognitive limitations would impede him from completing housekeeping tasks efficiently or effectively. He did not get enough sleep as he was constantly ruminating over the possibility that he would experience auditory hallucinations again due to his unshakable belief that he is being neuromonitored.
76The applicant reported to Ms. Ghatas that he had no issues with being aware of hazards and taking appropriate precautions in his daily tasks.
77Dr. Sum’s evidence was that it was hard to say whether the applicant had the ability to live independently. He was capable of cooking and cleaning but lacked motivation to do so. I am not satisfied that the applicant’s lack of motivation only started after the accident given that he did not pursue any sedentary employment or employment that did not require use of his back for years prior.
78The applicant and his mother saw Dr. Song Yang Yu at CAMH on July 31, 2018. They both reported that in mid-June 2018, the applicant developed a particularly intense episode of auditory hallucinations without any clear stressors or triggers. They endorsed new onset persistent depressed mood, insomnia, fatigue, anhedonia, poor concentration, and hopelessness since mid-June. They said that the applicant has been unable to function since discharge and spent most of his day lying in bed. Prior to June 2018, he was much more physically active. Based on this report, it appears the applicant’s psychological issues fluctuate, depending on when he has auditory hallucinations.
79The opinions of Dr. Pallandi and the occupational therapists are based on the applicant’s and his mother’s report that he showered daily and was able to do his own cooking and cleaning prior to the accident. The applicant’s mother testified that, except for May 2017, she had not seen the applicant for the two year period before the accident. She did not know what he did during the day other than baking bread. The applicant’s cousin, Mariana Miniotis, also testified that the applicant baked bread.
80Ms. Prototapas testified that she saw the applicant’s cannabis plants in his apartment. Otherwise, most of her information on the applicant’s normal routine and his abilities was from information provided by the applicant. For example, she believed the applicant went to the gym every day prior to the accident. However, the applicant testified that he did not go to the gym. His only activities other than skateboarding or going to the mall was to do push-ups at home, bake and grow cannabis. I have already determined that as she is biased, Ms. Prototapas’ assessment of the applicant’s pre-accident abilities was seen through rose-coloured glasses.
81I find the applicant has failed prove that he sustained a class 4 marked or class 5 extreme impairment in his activities of daily living. The applicant moved to a hotel and no longer had the equipment to bake bread. I prefer the psychiatrists’ and the family physician’s assessment of the applicant’s abilities to do his activities of daily living over the occupational therapists’ opinions and in particular, Ms., Franic’s opinion because she included the applicant’s pre-existing physical limitations in her assessment.
Socialization
82Cristyn Franic reported that the applicant’s capacity to interact with others was limited by his difficulties with processing information and with sustaining focused attention during a conversation due to his intrusive thoughts.
83Ranya Ghatas reported that with respect to socialization, the applicant did not easily establish rapport with her and appeared disengaged at most times. He spoke in a low tone and avoided eye contact with her, which is contrary to his demeanor when he testified and his engagement with other health professionals.27 The applicant reported that he continued to interact appropriately with others, however, at a lesser frequency as he has a tendency to isolate himself and does not initiate social interactions. He reported no concerns with respect to his ability to interact appropriately with others and maintain appropriate social behaviors. The applicant cited his preoccupation with neuro-monitoring as limiting his social functioning. However, he also told her that he no concerns with respect to his ability to interact appropriately with others and maintain appropriate social behavior. Despite his report, Ms. Ghatas thought that the applicant’s mental/ behavioral and emotional concerns appeared to inflict a significant impact on his ability to function and engage in his pre-loss social activities and interests. However, the evidence supported that socializing was a good activity for taking the applicant’s mind off of the neuromonitoring.
84The applicant’s aunt and cousin testified. The applicant lived in a basement suite of a house owned by his aunt, Aphrodite Miniotis. Ms. Miniotis lived next door and her daughter, Mariana Miniotis, lived in the suite above the applicant. Both Aphrodite and Mariana testified. Both provided evidence that there was a stark change in the applicant from before the accident to after. Mariana testified that they became close when she was ill in 2016. The applicant would come over and spend time with her by watching television. According to the applicant, he did not really talk to or hang out with Mariana or see much of his aunt prior to the accident except for Christmas or Thanksgiving.28 While the applicant’s Aunt and Mariana testified that the applicant has changed drastically since the accident, most of the information they have is, according to the applicant, from sparse contact with him.
85The opinions of Ms. Ghatas and Ms. Franic appear contrary to the evidence and the testimony I heard. The applicant’s mother testified that the applicant’s days are spent by going out on his own for coffee. This is not very different from what he did pre-accident. The applicant testified that he only stays long enough to get a coffee and return home. However, according to his mother, he stays at the coffee shop and drinks his coffee, then returns home. A couple of times per year he will visit a friend in Peterborough. He visits his cousin Stephen on at least a weekly basis. Stephen lives with his mother, Aphrodite Miniotis. The applicant usually drives his mother to Aphrodite’s house and will pick up Stephen and go out. The applicant testified, corroborated by his mother, that a few times he has driven alone to his cousin Stephen’s house and gone out with him.
86The applicant was involved in the outpatient program at CAMH from which he took part in a range of different day program activities that included basketball, art, group, recovery group, walking group, wellness, social skills, photography, games, relaxation group, medications, and gym group. On occasion he attended the group arriving on time independently or leaving independently.29 He generally participated well in the group without any issues.
87In 2018, the applicant would go to a local mall to walk with his mother for hours, visit his grandmother with his mother, and then return back to the mall with his mother to walk until 7:00 p.m.30 He told Dr. Ali in 2019 that he still goes to the mall on his own, the Scarborough Center, and drives independently. He usually goes to have lunch and "hang out" 31 This not what he told Ranya Ghatas.32
88All of this evidence contradicts Dr. Pallandi’s comments that the applicant does not engage in any outside activities except those with professional encouragement. The evidence and testimony was that the applicant still socialises with his pre-accident friends, albeit less often. He socializes with his family to the same degree or perhaps more as he saw his grandmother more often and has been seeing a cousin weekly since the accident. This contradicts Dr. Pallandi’s reported opinion that the applicant does not engage in any manner socially.
89Given that the applicant still socialises with his friends and family and goes to the mall, I find that the applicant has failed to prove that he has either a class 4 marked impairment or a class 5 extreme impairment in social functioning as a result of the accident.
Concentration Persistence and Pace
90Dr. Malik reported that the applicant had limitations in his financial responsibility. However, according to the testimony of the applicant and his mother, his capacity for financial responsibility did not change from before the accident. The applicant testified that he still did his own banking, but at times his mother would do it for him if she was going out.
91Ms. Ghatas determined that the applicant’s mental and behavioural difficulties and limitations were imposing a significant impact on his ability to sustain attention long enough to support timely completion of his day-to-day tasks. It is not clear what she means by significant given that his attention and concentration was good enough to be able to operate a vehicle. Neither the applicant’s mother nor any of the physicians reported any concern that the applicant’s concentration abilities affect his ability to operate a car.
92Given that the applicant’s concentration, persistence and pace with respect to his financial responsibility has not changed, and that he is able to concentrate well enough to drive a vehicle, I find that applicant has failed to prove on a balance of probabilities that he has either a class 4 marked or class 5 extreme impairment in this sphere of function as a result of the accident.
Adaption in a Work or Work-Like Setting
93I am not satisfied that Dr. Pallandi’s opinion that the applicant is unable to meet the cognitive demands in any work or work-like setting in any protracted manner proves the applicant’s case on a balance of probabilities. The applicant did not work for ten years prior to the accident. I am not convinced it is only because of his back complaints, especially since the applicant was allegedly able to skateboard despite his back complaints. Nor could the applicant’s mother explain why the applicant never got a job that did not involve his back. The applicant no longer bakes bread since the accident. However, until recently, he did not live in a place that had a full kitchen. The applicant has not, therefore, proven that he no longer bakes bread because of an accident related impairment. Accordingly, I am not convinced that on a balance of probabilities the applicant has a deterioration in work or a work-like setting because of the accident.
94The applicant told Ms. Ghatas that he did not think that he would have difficulties remembering or following steps, but then he added that he does not really do anything other than think about the remote neuro-monitoring.
95I accept that the applicant has low motivation to cook and clean. Notably, he had limited resources for cooking while living in the motel. The motel staff did the cleaning. Dr. Gnam testified that someone who is going out every day, such as the applicant has been doing, is not indicative of a person with low motivation. The applicant is able to obtain coffee and purchase food when out at the mall.
96In order to accept the opinions of Ms. Ghatas and Ms. Franic, I would have to accept that the applicant had no difficulty in any of the four spheres of function prior to the accident. However, I am unable to accept the accuracy of the applicant’s report of his pre-accident history and that he had no issues with concentration, socializing, housekeeping or, but for his back, work. For example, when asked by Ms. Ghatas for feedback of how he thought he performed at the end of the activities she administered in her assessment, the applicant reported that he felt he did very well and was not cognizant to the errors he made or the task components he omitted.33 No expert has reported or testified that schizophrenia causes a person to have lack of insight into his abilities, only a lack of insight with respect to the diagnosis. This implies that the applicant may have poor insight into his pre-accident socializing, concentration, and housekeeping. Therefore it is not clear to me that the applicant’s testimony that he had no issues with his self care, his cooking, cleaning and socializing prior to the accident is reliable. Especially in light of his understanding that he performed well on the tasks assigned by Ms. Ghatas.
97For all of these reasons, the applicant has failed to prove on a balance of probabilities that, as a result of the accident, he has a class 4 marked impairment or a class 5 extreme impairment in any of the four spheres of function due to a mental or behavioural disorder.
C. Attendant Care
98The applicant is claiming entitlement to attendant care benefits of $6,000.00 per month from June 20, 2018 to date. The respondent has paid a total of $23,565.17 in attendant care.34 Therefore, the attendant care claimed is $6,000.00 per month less amounts paid from June 20, 2018 to date. The respondent submits that after deducting the attendant care it has paid from the attendant care claimed, the remainder of the attendant care claimed by the applicant has not been incurred by him. As I have determined that the applicant failed to prove he sustained a catastrophic impairment, I need not address the issue because the applicant’s policy limits have been exhausted. However if I am wrong, I find that the applicant has failed to prove he incurred more than what the respondent has paid for attendant care.
99Attendant care benefits pay for all reasonable and necessary expenses that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility. The amount of the attendant care a person is entitled to is determined in accordance with an “Assessment of Attendant Care Needs” form (“Form1”) and multiplying the number of hours for each form of attendant care listed in the Form 1 by the hourly rate set out in the Guidelines. If the applicant did not sustain a catastrophic impairment, he is only entitled to a maximum of $3,000.00 per month up to July 18, 2022 or to a maximum of $65,000.00 combined with the medical and rehabilitation benefits. If he sustained a catastrophic impairment, he is entitled to a maximum of $6,000.00 attendant care per month.35
100The insurer is only required to pay for the attendant care expenses that an insured person has incurred. If the insured person’s attendant care provider did not provide the attendant care services in the course of the employment, occupation or profession in which he or she was ordinarily engaged for remuneration, but for the accident, then the amount of the attendant care benefit payable shall not exceed the amount of the economic loss sustained by the attendant care provider for providing the attendant care during that period.36
101The applicant relies on a Form 1 assessment of attendant care needs prepared by Erin Matheson, occupational therapist and kinesiologist, dated June 12, 2018. Ms. Matheson determined that the applicant required attendant care at the rate of $14,912.30 per month. The parties advised at the conclusion of the hearing that that the respondent agreed to pay attendant care incurred at the maximum rate of $3,000.00 per month under the policy limits for non-catastrophic impairment. The respondent has never disputed the attendant care needs of the applicant and Ms. Matheson’s recommendations. The respondent paid the attendant care invoices submitted by Access Personal Support Ltd. except for the April 2019 invoice for $3,039.43 for 65.25 hours of care including $145.00 for mileage at $.50 per kilometer. The respondent paid for the total hours claimed, but at the maximum amount of $21.11 per hour37 for a total of $1,377.43. The mileage was not paid. Based on the submissions of the parties, the only issue before me is whether the applicant is entitled to the full invoice submitted for April 2019. I find that he is not for the following reasons.
102Based on the documentary evidence,38 I accept that the applicant incurred 65.25 hours of care from Access Personal Support Ltd. from attendant care providers whose usual employment, regardless of the accident, is to provide attendant care. Under the Superintendent’s Guidelines No. 04/16: Transportation Expense Guideline (Bulletin A-14/16), mileage for the insured person is payable at the rate of $.40 per kilometer and the first 50 kilometers is deductible for non-catastrophic claims. The mileage claimed for the attendant care provider after the 50 km deduction is 60 km which, at $.40 per km, amounts to $24.00. If the applicant was determined to have sustained a catastrophic impairment, the maximum payable for 290 km at $.40 per km would total $116.00. If this was mileage for taking the applicant to various medical appointments and activities related to the applicant’s rehabilitation, it is payable to a maximum of $24.00 subject to the policy limits availability. If it was for the attendant care provider’s travel time, I was not pointed to any part of the Schedule, the Form 1, or any Guideline that says the insurer is required to pay for the cost of an attendant care provider to travel to the workplace – namely the applicant’s home. The bill states that the mileage is for community reintegration. However, the mileage is consistently listed a 20 km per day, which is inconsistent with taking the applicant to various medical appointments. Further, the applicant is able to drive himself. I heard no evidence as to why the applicant need to be driven anywhere by an attendant. Accordingly, I find that even if there were further policy limits available, the respondent is not liable for any further payment of attendant care on the invoices that have been submitted.
D. Rehabilitation Support Worker Services
103The treatment plan for $12,587.80 for rehabilitation support worker services recommended by Erin Mathison in a treatment plan dated February 1, 2019 was initially approved.39 There was no denial letter dated April 3, 2019 filed as an exhibit. Accordingly, subject to policy limits, this treatment plan is payable.
104Erin Matheson had recommended the applicant receive rehabilitation support worker (“RSW”) services. I found that she was very much an advocate for the applicant in that she constantly added descriptors of how “profoundly” impaired the applicant was at every opportunity. When asked to testify about her observations, she did not do so, but relayed what Ms. Prototapas told her. She would not answer questions directly but instead provided lengthy explanations that appeared to be intended to bolster the applicant’s case. She was careless in her recommendations given the limited funds the applicant had available for rehabilitation benefits by recommending the RSW treatment plan at the same time that the applicant was receiving similar treatment at no charge through CAMH.40 Further, the applicant was admitted to CAMH right after Ms. Matheson received approval to proceed with an RSW treatment plan. Ms. Matheson’s evidence was misleading as she initially stated that the RSW program was initiated as a result of a team meeting with Dr. Tosca, psychiatrist from CAMH. In fact, she did not put the plan on hold or seek approval from anyone at CAMH on whether the RSWs were appropriate or interfering with the applicant’s treatment at CAMH. She did not speak to anyone at CAMH about starting the RSW program until just before the applicant’s discharge.41 She testified that it was a social worker that she spoke to about the RSW program. Ms. Matheson testified that she did not recall discussing the applicant’s diagnosis with Dr. Tosca. She listed the applicant’s diagnosis as post traumatic stress disorder and recurrent depressive disorder on all of her treatment plans. However, no-one qualified to diagnose PTSD ever diagnosed the applicant with PTSD.
105According to Ms. Matheson’s evidence, the applicant’s attendant care providers could have done the same things the RSW did, but the attendant care providers charged more per hour. I find it difficult to believe her evidence given that the maximum hourly rate payable for an attendant care provider is $21.00 per hour whereas the maximum hourly rate for an unregulated provider such as an RSW is $58.18 for non-catastrophic insured persons and $89.07 for catastrophically impaired insured persons. The RSW’s services were charged at $58.19 per hour on the treatment plans that Ms. Matheson signed off on. She prepared the Form 1 attendant care needs assessment of the applicant and, therefore, I find she knew or ought to have known that the maximum hourly rate for attendant care.
106Ms. Matheson testified that RSWs are similar to personal support workers (PSWs) as they both generally take a college course, A PSW may take some behavioural courses whereas an RSW may have more experience. She stated that the RSW is better equipped at community reintegration than a PSW, but I heard no evidence as to why. Based on her evidence, the only other difference between the Genesis RSW’s and the Access PSW’s is that the Genesis RSW’s worked under the supervision of an OT, Ms. Matheson.
107Ms. Matheson testified that she initiated the RSW program while the applicant was in CAMH because he had such a difficult time in the hospital due to noise, his mother visiting, and the number of people there, which the applicant found overwhelming. As the applicant disclosed this to Ms. Matheson on September 4, 2018 at the team meeting, I question whether part of the problem for the applicant was the presence of the RSWs.
108I also give little weight to her Ms. Matheson’s evidence because she believed that the applicant was diagnosed with PSTD, but he was not. She did not have the applicant’s medical records. She relied only on the information she received from the applicant’s mother and ignored the information provided by the Genesis staff about the applicant’s recreational activities. She failed to update the diagnosis rendered by the applicant’s treating physicians when she reported to the respondent, and her treatment plans do not reflect the improvement that the Genesis staff were reporting. Further, she erroneously believed that the applicant was hospitalised for three suicide attempts when such a hospitalisation occurred only on one occasion, July 30, 2017, to escape the voices. The Scarborough records 42 state that the applicant felt safe in the hospital as the people out to get him would not reach him there. This is contrary to Ms. Matheson’s evidence that the applicant felt constrained in the hospital.
109Dr. Sum testified that in addition to cognitive behavioural therapy and medication, any thing that gets the applicant out of the house and into activities he enjoys is what the applicant needs now, which I accept. However, given the socializing that the applicant does with his cousin Stephen, his ability to go for coffee on his own, and that his attendant care provider can accompany him to the same activities a rehabilitation support worker can, I find that the applicant has failed to prove that the denied portions of the treatment plans for rehabilitation support worker services were both reasonable and necessary.
E. Cost of Living, Parking and Medication Expenses
110The applicant is claiming the cost of hotel rooms that his mother paid for after he moved out of his basement apartment. He submitted that he had to move out because he believed he was being spied on in the apartment and therefore, could not sleep in it. Sometime after the accident, possibly about a month after, he moved into a one room hotel with his mother.43 The applicant and his mother eventually moved to an apartment a few months before the hearing. As the applicant’s policy limits have been exhausted, this expense is not payable. However, if there had been any policy limits remaining, I would have dismissed the claim for the following reasons.
111Ms. Prototapas testified that they stayed in a hotel because the one place she applied to for rent wanted a years worth of rent as a deposit, and she did not have the money. She did not think to ask her sister, who was a realtor, to look for a rental that would accommodate her and the applicant. Nor did she want to take advantage of the assistance offered by the various health practitioners through ODSP because she wanted to be the one to look after the applicant. I do not understand how the desire of the applicant’s mother to look after her son prevented the applicant from receiving the help in looking for suitable accommodations that was offered to him by his health practitioners.
112Ms. Prototapas initially paid $1900 per month for the hotel room, then $1700 per month, then $1500 per month and after February 2020, $1200 per month.
113The expenses were not claimed as a visitor’s expense but as a rehabilitation benefit. Under s.38(2) of the Schedule, the respondent is not liable to pay an expense in respect of a rehabilitation benefit that was incurred before the applicant submits a treatment and assessment plan. I was not pointed to any treatment plan recommending the expense. Nor were any receipts from the hotel provided. There was no evidence that the applicant promised to pay his mother for the cost of the hotel rooms or that he was under any legal obligation to do so. Nor is it clear that there was any economic loss sustained by Ms. Prototapas given that she was already supporting her son’s rent at the rate of $1050 per month and that she planned on renting an apartment in Ontario for herself after the death of her husband.
114Further, if the claim was for a visitor’s expense, nothing would be payable as Ms. Prototapas would have visited it would be limited to the cost of the hotel room after a deduction for the rent of $1050.00 per month that the applicant’s mother normally paid for the applicant’s portion of rent.
115If the claim is for a rehabilitation expense, it is dismissed because no treatment plan was ever submitted to the respondent for the expense. An insurer is not required to pay for a rehabilitation expense that is incurred prior to the submission of a treatment plan recommending the expense.44
116With respect to the remaining expenses for prescriptions and parking, I heard no submissions from the applicant or the respondent. In any event, since the applicant’s policy limits have been exhausted, the respondent is not liable for paying the expenses.
CONCLUSION
117The applicant has failed to prove on a balance of probabilities that he sustained a catastrophic impairment as a result of the accident. As his policy limits have been exhausted, the remainder of his claims are dismissed.
ORDER
118The applicant’s application is dismissed.
Released: July 28, 2022
Deborah Neilson
Adjudicator
Footnotes
- Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017)as amended [the “LAT Rules”].
- 17-007909 v Chieftain Insurance , 2017 CanLII 147726 (ON LAT), overturned on reconsideration for other reasons
- confirmed by the Court of Appeal in Goodman v. Rossi, 1994 CanLII 10551 (ON CA).
- Statutory Powers Procedure Act, RSO 1990, c S.22 (“SPPA”)
- After my determination that Dr. Gnam’s report could be filed as an exhibit, Dr. Woodall testified that she actually received a brief of medical documents but did not list them as she believed that the binder containing separate medical reports and clinical notes and records from various different authors was one document.
- Ex.1 tab72, OCF-19 of Dr. Sum dated January 2, 2019
- American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 ( the “AMA Guides”)
- Howe vs. The Commonwell Mutual Insurance Group, 2021 CanLII 40760 (ON LAT)( Howe vs. The Commonwell Mutual Insurance Group)
- American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008 (“AMA Guides, 6th edition”)
- Chiropractic Act, 1991, SO 1991, c 21, ss.3 and 4
- Psychology Act, 1991, SO 1991, c 38, ss.3 and 4, and Medicine Act, 1991, SO 1991, c 30, ss.3 and 4
- The parties confirmed at the outset of the hearing that they settled the issue listed in the Case Conference Order of entitlement to an examination expense in the amount of $16,905.70.00 for catastrophic impairment assessments recommended in a treatment plan submitted on November 7, 2019.
- The case conference order stated that the treatment in issues numbered 3 to 7 above was for occupational therapy services. However, the treatment plans in issue all recommend rehabilitation support worker services and the testimony involved recommendations for rehabilitation support worker services.
- No treatment plan dated November 22, 2018 was filed as an exhibit. However, a treatment plan for the same amount, prepared by Erin Mathison dated November 9, 2018 and submitted on November 28, 2018 was filed as an exhibit.
- American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, p.99
- Dr. Sum did not agree that the prodromal can last for years. I heard no evidence on why her opinion was out of the ordinary on this matter. Accordingly, I preferred the majority opinion.
- Ex. 2: Transcript from the Examination for Discovery of Nicholas Crecoukias taken on December 3, 2019, p.49, qq.356 to 364
- Ex.1, tab 67 p.514, Sunnybrook Health Sciences Centre clinical note of Dr. Frankfurter dated July 30, 2017
- Ex.1 tab 69 p.1839, Scarborough Hospital clinical notes and records
- Centre for Addiction and Mental Health (“CAMH”)
- Ex.2: Transcript from the Examination for Discovery of Nicholas Crecoukias taken on December 3, 2019, pp.22-23, q.144-145
- Ex.1: clinical notes and records of CAMH, report of Dr. Song Yang Yu dated July 31, 2018, p.792, clinical note dated August 2, 2018, p.819, Dr. Sum testified that he was still using cannabis in June 2018.
- Ex.1. Sunnybrook clinical notes and records dated July 30, 2017 p.514
- Dr. Pallandi testified that he only wrote pages 19 to 25 of the report.
- Ex.1, pp. 3670 to 3680 Dr. Shalrose Malik Health Status report dated March 5, 2019
- Ex.1. tab 79 p.3706: Dr. Shalrose Malik clinical notes and records, Health Status report, Activities of Daily Living Index dated March 5, 2019
- Ex.1, clinical note of CAMH dated August 1, 2018 p.898, August 20, 2018 p.926, and September 6, 2018, p.957 for example.
- Ex.2 Transcript from the Examination for Discovery of Nicholas Crecoukias taken on December 3, 2019, p.79 q.589-594, p.81 q.606 -608
- Ex.1, tab 68, pp. 839, 840, 843, 844CAMH clinical notes and records dated October 22, 29, 2018, November 1, 2018
- Ex.1: tab 68 p.804: CAMH clinical notes and records dated September 17, 2018
- Ex.1, Tab 73, pp.2834 & 2837 IE report of Dr. Ali dated June 5, 2019
- Ex.1 tab 73, pp. report of R. Ghatas dated June 5, 2019,
- Ex.1, tab 73 p.2789, IE report of Rayna Ghatas, occupational therapist
- Ex.1 Tab 27: letter from the respondent to Cariati Law dated December 23, 2019
- Section 19 of the Schedule
- Section 19(3)4 and s. 3(7)(e) of the Schedule
- Superintendent's Guideline No. 03/16: Attendant Care Hourly Rate Guideline
- Ex. 1 Tab 24: June 21, 2019 – Facsimile from Angela McGuire to Edwin Chan
- Ex.1 Tab 63: treatment plan dated February 1, 2019, approved on February 14, 2019. There was no denial letter dated April 3, 2019 filed as an exhibit.
- Ex.1, Tab 75; clinical notes of Genesis Community Rehabilitation Inc. August 19 to 25, 2018, p.3190 and Tab 68; CAMH clinical notes and records July 31, 2018 to September 10, 2018
- Ex. 1,Tab 71: report of E. Matheson dated November 27, 2018, p.2754
- Ex.1 Tab 69, p.1735
- The CAMH staff were advised the applicant started living in a hotel in October 2017. See Ex.1 , clinical notes and records of CAMH, p.794
- Section 38(2) of the Schedule