Citation: Lynch v. Intact Insurance Company, 2022 ONLAT 20-014497/AABS

Licence Appeal Tribunal File Number: 20-014497/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:

Braydon Lynch

Applicant

and

Intact Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Jeffrey Shapiro, Vice-Chair

APPEARANCES:

For the Applicant Respondent:

Yasar Saffie, Tracey Brooks, Maryam Younes, Counsel

For the Respondent Applicant:

David Levy, Counsel

Court Reporter:

Guido Riccioni and Breanna Clancy, Network Reporting

HEARD:

By videoconference on March 21-25 and 28-29, 2022

BACKGROUND

1B.L. was struck by an automobile on April 21, 2018. He received insurance benefits from Intact under the Schedule.¹ Intact paid an Income Replacement Benefit (“IRB”) for two years but denied an ongoing IRB and did not designate him as “catastrophically impaired” (“CAT”) under the Schedule. B.L. appealed those denials to this Tribunal. The parties agreed that B.L. suffered a concussion but dispute the degree of his current impairments and if they are accident related. I find that B.L. is not catastrophically impaired but is entitled to an ongoing IRB.

ISSUES

2The parties agree the issues that I must decide in this hearing are:

1. Is B.L. entitled to an IRB of $400.00 per week from September 21, 2020 to date and ongoing, less applicable deductions?

2. Has B.L. sustained a catastrophic impairment under the Schedule?

3. Is B.L. entitled to interest on any overdue payment of benefits?

ResULT

3B.L. is entitled to the IRB to date and ongoing, less post-accident income as set forth below and any applicable deductions such as CPP disability, with interest. However, B.L. has not sustained a catastrophic impairment as defined by the Schedule.

ANALYSIS

Issue 1: Is B.L. entitled to an IRB?

4Yes. B.L.’s claim for an IRB after the first 104 weeks is governed by s. 6 of the Schedule. Under it, B.L. must show “as a result of the accident, [he] is suffering a complete inability to engage in any employment or self-employment for which [he] is reasonably suited by education, training or experience.” Several factors inform the analysis, including suitable employment, training and education, comparable wages, any attempts to return to work, any disabilities preventing a return and whether a return to work is detrimental to recovery.²

5Caselaw clarifies that section does not require a complete inability to work in any matter, but rather an inability to complete employment that reflects an applicant’s “education, training or experience”, i.e., a comparable pre-accident level of employment. Thus, substantially lower renumeration or part-time work might not disqualify a person from an IRB under the complete inability test.³

6In B.L.’s case, he submits that as result of his concussion symptoms, such as sensitivity to light and corresponding inability to extensively work on computer screens, headaches and the aggravation of his mental health issues, such as depression, mood swings, personality disorder issues, and substance abuse, that he suffers a “complete inability” as a result of the accident. I agree.

7Intact raised two general points of dispute: (1) While B.L.’s issues for the first year or two were accident related, his ongoing inability is not (i.e., causation), and (2) B.L. is actively working in a promising comedy career. On the first point, causation is a factual determination. An applicant must show on a balance of probabilities that the impairments and loss would not have occurred “but for” the accident.⁴ I must take a “robust and pragmatic approach” to determine if the accident caused the loss and “scientific proof of causation is not required.” The Schedule does not provide a “discount for apportionment of causation due to an insured’s pre-existing injuries.” A cause meeting the “but for” test need not be the only cause, or even major cause, but only a necessary cause.⁵

8Intact argues that B.L. had the same issues before the accident, and while B.L. was worse for a period after the accident and is even still struggling, his mental health issues are too attenuated to be as a result of the accident. I disagree. As the Tribunal pointed out in a similar situation, “one overarching fact stands out”, at the time of the accident, the applicant was employed and intended to continue working for the indefinite future, but hasn’t been able to return, with “the accident stand[ing] as bright line in [the applicant’s] life.”⁶

9In the 10 years prior to his move from Saskatchewan to Toronto in 2017, B.L. had a stable work history in the oil and gas industry and started a part-time comedy hobby. Other than a week-long hospitalization in 2016 due to substance abuse, mental health issues, and suicidal ideation, there is no evidence that he missed work. In fact, due to that incident, he began addressing his issues and made plans for the future, including moving to Toronto to pursue his dreams. From that time to his 2017 move to Toronto though the April accident, there is no evidence that he was not functioning effectively.

10Indeed, while working on his fledging comedy career, in February 21, 2018 – two months before the accident – he began successfully working full-time as a telemarketer until the April 21, 2018 accident. It does not appear he missed any work. His life was fairly stable.

11The accident, however, set him on a downward spiral, from which he has not fully recovered.⁷ As a pedestrian struck by a vehicle, he briefly lost consciousness and was diagnosed with a concussion and back injury. B.L. exhibited significant concussion symptoms, such as headaches and light sensitively from computer screens, which prevented him from working. On May 18, 2018, he presented at an ER with severe headaches. An August 7, 2018 psychological Independent Examination (“I.E.”) diagnosed Adjustment Disorder with Depressed Mood, and a September 17, 2018 Neurological IE found B.L. suffered a concussion/mild traumatic brain injury (“mTBI”). Nearly all other assessors, such as IE psychological assessor Dr. Zakzanis and B.L.’s psychological assessor, Dr. Kurzman, agree the B.L. sustained a traumatic brain injury (“TBI”), only disagreeing if it’s classified as “mild” or “complicated”.

12Since the accident, B.L. has not been able to work in any consistent fashion, despite several attempts. For instance, in June 2018, he started back at his pre-accident position, on a part-time basis to due light sensitivity, but was unsuccessful, and was let go in October. He quickly got a new job through a former co-worker, on 6-hour shifts, but that didn’t last long – despite it being similar to his pre-accident position.

13B.L. was not able to effectively deal with instability. By November 2018, he was in a CAMH program and then in and out of several addiction recovery programs. He also needed support regarding suicidal ideation until July of 2019. Dr. Zakzanis notes in his January 29, 2021 CAT IE that a September 12, 2019 Psychiatry IE by D. Tugg opined that B.L. “suffered from a relapse of a pre-existing alcohol and cannabis substance use disorder and adjustment disorder with depressed mood, as a direct result of the subject accident. [B.L’s] prognosis is guarded because of his diagnosis of Substance Use Disorder, which is in only early remission. The relapse rates for substance use disorder are very high…”⁸

14From July of 2019 into 2000, B.L. was relatively stable and attempted to return to work, but in November 2020 he relapsed into alcohol and cannabis use. In 2021 he was overwhelmed by the full schedule and ashamed of “vocational work”. In April 2021, he got a job with a payment processing company working from home 8-hours a day, using his computer, but his mental health suffered – he sought to reduce the hours until 4 hours a day, but was asked to resign. From May to October of 2021, he did a few sporadic moving jobs and a landscaping job, and over 60 part-time comedy shows (discussed below). In September 2021, he applied for Canadian Pension Plan Disability (“CPPD”) but did not disclose his comedy income on that application, although its not clear that his net comedy income was above the disclosure threshold.

15B.L. disclosed to Dr. Zakzanis cognitive issues such as memory and attention problems since the accident, and psychological problems such as irritability and helpless and hopelessness, and depression, and somatic issues of headaches.⁹

16In January 2022, he lost his comedy shows due to the lockdown, and applied to Home Depot for a job which he described as “Not realistic, but I tried”. When he did not get the job, had an attempted suicide, and ended up a St. Joseph’s Hospital.

17While the extent of his back pain is unclear to me – it appears fairly minor – B.L.’s real impediments to his gainful employment are his inability to do extended computer work, his alcoholism, and his mental health, which leaves him prone to depression, outbursts, and suicidal ideation. B.L. is unable to meet reasonable standards of productivity in a competitive marketplace.¹⁰

18While Intact is correct that the 2016 hospitalization documents similar complaints, the evidence established B.L.’s contention that he was stable after that point but then those latent issues were aggravated by the accident. Clearly, all four neuropsychological and psychiatry assessors called to testify in this matter – Dr. Zakzanis being called by report only – struggled with the causation issue as they tried to separate a before and after picture. For example, when asked to describe the accident’s effects on B.L.’s current condition, assessors on each side responded that to the effect "it's complicated." The complicated picture grows out of B.L.'s history. Ultimately, however, from my perspective, all found B.L. sincere and genuinely trying to recover and return to a productive life. None had validity concerns. All, to not-so-varied extents, found that B.L. conditions are worse from the accident.

19For instance, Dr. Zakzanis opined¹¹ that B.L. suffered at least an uncomplicated mild traumatic brain injury, and possibly a “complicated” one. He opined that B.L. is suffering “compromised” cognition, such as disturbed attentional process that effects short-term memory and visual learning and retrieval, leaving his function “below my estimate of his premorbid intellectual and cognitive capabilities in the absence of any evidence of feigning”. Dr. Zakzanis based his conclusions on objective psychometric examination findings, which were consistent with subjective assertions.

20Dr. Zakzanis made those finding despite recognizing B.L.’s pre-existing history is contributory. Still, he opined B.L. demonstrated cognitive impairment that would not have occurred but for the accident and that “it is most probable that [B.L.’s] ongoing reported pain, headache symptomatology, susceptibility to fatigue, and predominately psychological symptomatology (i.e., lack of motivation secondary to his depressed state) coupled with his pre-existing history that shaped a reduce cognitive reserve, contribute to his demonstrated cognitive impairment.” He diagnosed “Mild Neurocognitive Disorder Without Behavioural Disturbance due to Multiple Etiologies”.

21B.L.’s neuropsychological assessor, Dr. Kurzman¹² came to a strikingly similar conclusion, noting, B.L.’s “ongoing attentional impairments are, on the balance of probabilities, multifactorial in origin and likely reflect the combined effects of traumatic brain injury, psychological distress in the form of a Major Depressive Disorder, moderate, with anxious distress, bodily pains, headache symptomatology, poor sleep/fatigue, and possible pre-existing attentional issues. Thus, [B.L.] meets DSM-5 criteria for a diagnosis of Minor Neurocognitive Disorder Due to Multiple Etiologies. It is not possible to tease apart the effects of these factors on [B.L.]’s attentional abilities.” He also concluded B.L. suffers a complete inability and is at an elevated risk of developing future declines in his psychological and emotional functioning given his response to stress.

22B.L.’s psychiatric assessor, Dr. Waisman, also opined that B.L. decompensated after the accident, and while B.L. was diagnosed with mood symptoms similar to borderline personality disorder (“BPD”) before the accident, it was only after the accident – and as a result of the accident – that it had become a full-blown disorder. Thus, there was a qualitative difference before and after the accident, which can be seen, in part, in how it effected his life.

23Intact’s psychiatric assessor, Dr. Sivasubramanian, did not think that the accident could “cause” BPD and that it was pre-existing but undiagnosed. However, he agreed that an accident could make BPD worse, and in B.L.’s case it likely exacerbated it but “I can not predict the duration of the worsening of impairment”¹³. I understood his testimony to be that the accident could have – and probably did – aggravate B.L.’s mood issues, and leaves B.L. with more vulnerabilities in responding to future incidents. While his report attempts to parse out accident related Adjustment Disorder and increased conflict in interpersonal relationships from pre-existing BPD and substance abuse, I find his testimony with the totality of the evidence strongly supports they are intertwined.

24I also note that during an OT examination, B.L. received a call about a domestic crisis which angered him, at which point he was unable to adequately listen to the assessment instructions, which illustrates B.L.’s post-accident issues.

25In short, I find that B.L.’s continued cognitive, mood substance abuse issues prevent him from maintaining steady employment, and the degree of those issues is directly caused by the accident.

26Second, Intact submits regardless of any impairments B.L. may have, B.L. is successfully running a promising business as a stand-up comedy performer and producer – i.e., he’s working. Intact argues those activities disqualify him from an IRB. I agree that if the business was robust and successful it would disqualify him, however, at most, his comedy activities currently are a hobby and not a career that supports Intact’s position. It nets him part-time income that he estimated at $4,000 to $5,000 a year, which I find to be $5,000 a year, but this figure is not nearly commensurate with his pre-accident position. One day, it may grow more substantial, but it is far from that point. Of course, B.L. must regularly and fully account for his earnings, as they constitute a reduction of the IRB.

27I also do not accept that B.L.’s comedy activities establish functional abilities inconsistent with a “complete inability”. While Intact correctly argues that to produce the shows, B.L. exhibits a good amount of initiative, organization, responsibility and even functional abilities, such as securing a line-up of local comics, securing a venue, updating posters, posting them up, running a show, and dealing with the finances, the argument falls short when the activities are viewed in context. The activities are sporadic, conducted as short tasks of up to two hours, spread out over a course of a few days, preformed at B.L.’s will. While B.L. hasn’t missed any shows, they are all in the evening, so B.L.’s depression and inability to get started on some days is covered-up. The activities do not translate into an ability to show-up everyday to work at an employer’s schedule and consistently work and maintain working relationships.

28Similarly, B.L. did a handful of moving jobs and a landscaping job from May to October 2021, but those were much more sporadic.

29Finally, I note that B.L. underwent many validity tests with numerous assessors and all found his results valid. The only exception was on one measure during a Functional Abilities Examination, although even in that assessment, the assessor found the overall results were valid, albeit the low valid range. As for Intact’s vocational assessment, I did not find it persuasive. Intact’s counsel showed the assessor the headline of a news article that purported to highlight B.L.’s comedy success and asked the assessor how it affects her opinion. I found her answer to be too willing to accept the question’s premise based on a headline, rather then considering the underlying article from an objective perspective, which showed some bias. In contrast, when Dr. Kurzman was shown the same article headline, he said he would need to know more, pointing out that it could be a vanity piece.

30In conclusion, while I am optimistic that B.L. will be able to return his life to pre-accident functioning and return to consistent full-time employment or may be able to grow his hobby into a full-time business, I do not find B.L. is at that point. I accept that he sincerely desires to and has attempted to return to work but can not as a result of impairments sustained or aggravated in the accident. Currently, B.L. suffers a complete inability.

Issue 2: Is the B.L. Catastrophically Impaired?

31No. B.L. is seeking to be designated “CAT”, which would increase the amount of benefits available to him and remove the five-year limit following the accident in which he can claim benefits. The Schedule provides several definitions of CAT. B.L. claims CAT status under s. 3.1 (1) 8., known as “criterion 8”. It provides:

Subject to subsections (3) and (5), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder. (Emphasis added.)

32In simple terms, the Schedule uses a rating system from the AMA Guides to the Evaluation of Permanent Impairment, 4th ed. (“Guides”). The Guides provide a method to rate the severity of a person’s mental and behavioral functioning in four areas of function (“domains”) on a scale of 1 to 5 (e.g., none, mild, moderate, marked and extreme impairment, and expressed as classes 1 to 5).

33The four functional areas are: (1) activities of daily living (“ADLs”), (2) social function, (3) concentration, persistence & pace, and (4) adaptation. As the ADL domain is particularly important in this matter, according to the AMA Guides, ADLs includes such activities as self-care, personal hygiene, communication, ambulation, travel, sexual functions, sleep and social and recreational activities.

34The severity of ratings are not as well defined. A “Class 1: No impairment” rating means “no” impairment, a “Class 2: Mild Impairment” means impairment level compatible with “most” useful function, a “Class 3: Moderate Impairment” means “some but not all” functioning, a “Class 4: Marked Impairment” means impairments “significantly impede” useful functioning, and a “Class 5: Extreme Impairment” means no useful functioning.

35The Schedule then deems a person “catastrophically impaired” if the person is rated a four out five severity in three of the four domain areas, or a class 5 in any.

36B.L. submits, based on Dr. Waisman’s CAT Psychiatric Assessment, that he meets the CAT definition with class 4 (marked) impairments in three of the four domains. The three “class 4” ratings are in ADLs, Social Functioning, and Adaptation, while the remaining area – Concentration – B.L. is rated a class 3.

37Intact submits that if B.L. fails to establish a marked impairment in any one of the three domains, then he fails to meet the test. I agree. Thus, Intact focused on ADLs at the hearing and successfully established that, even putting issues of causation aside, B.L. does not have a marked impairment in it. Intact relies, in part, on Dr. Sivasubramanian’s Psychiatry Report dated September 2, 2021, who opines that B.L. suffers a class 2 impairment.¹⁴

38I find B.L. does not meet the class 4 rating in ADLs from two perspectives. First, while I generally accept Dr. Waisman’s testimony and overall analysis – and found his testimony on causation issues particularly helpful – his report reaches that high rating based largely on the description provided by an Occupational Therapy assessor. That description, however, is noticeably overstated compared to the overall evidence presented in the hearing. For instance, it describes a person who is unable to call a taxi and has trouble getting off at the wrong bus stops. While B.L. may experience some difficulties at times in those regards, those types of issues are relatively minor in his day-to-day life.

39Second, and a focus of the hearing, is how to properly rate B.L.’s function in ADLs given the gap in his functional abilities between his regular “good” days and his acute periods when his mental health issues are symptomatic.

40On the one hand, the evidence was overwhelming clear that most of the time, B.L. preforms his ADLs with little or no impairment. For example, he preforms his self-care, personal hygiene, communication, ambulation, travel, and recreational activities completely independently. B.L. acknowledged as much during the hearing and to numerous treatment providers and assessors.¹⁵

41B.L. submits, however, that when his mental health issues are symptomatic, his abilities and performance are substantially decreased, such when he is hospitalized or suffering a depressive episode. For example, during hours that he may lay in bed during a depressive state, arguably he is not preforming any ADLs for that precise period. More typically during a hospitalization he might not shower and brush his teeth and his overall functioning arguably might be property rated a class 4.

42While neither Dr. Sivasubramanian’s or Dr. Waisman’s Reports addressed the issue, both were asked about it during the hearing and described that while Chapter 14 of the AMA Guides does not provide extensive guidance on this issue, it is a qualitative analysis.

43All told based on their reports, the overall evidence, and their expert testimony regarding this issue, I find that combining B.L.’s very mild functional limitations on most days in his ADL with his limitations on his acute periods, produces an overall ADL rating in the high-end of a class 2 impairment or possibly low end of a class 3, but in any event, definitively short of a class 4 marked impairment.

44I come to that conclusion because on most days – 28 out of 30 days a month – he is high functioning in this domain, and the acute days are a relatively short periods of each month. As well, even during the depressive stages, he is still independent in his ADLs, albeit delayed.

45Thus, as Intact argues, B.L. does not suffer marked impairments in at least 2 out of the 4 domains and thus does not meet the Schedule’s definition.

Interest

46Section 51 of the Schedule governs interest on overdue payments. In this case, B.L. is entitled to interest on the IRB.

CONCLUSION

47I find that B.L. suffers ongoing impairments from the accident that cause him a “complete inability” under the IRB test as defined by the Schedule. However, those impairments do not render him catastrophically impaired, as defined by the Schedule. Given that he is earning some income, the insurer is entitled to deduct that amount from the IRB based on the Schedule’s formula, as well as CPPD.

ORDER

48B.L. it is entitled to an IRB of $400 per week from September 21, 2020 to date and ongoing, less post-accident income, and other deductions that may be permitted under the Schedule such as CPPD disability, together with interest under the Schedule. B.L. is not designated catastrophically impaired. The application is allowed, in part.

Footnotes

1. 1Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10.
2. 2A.H. v. Certas Home and Auto Insurance Company, 2019 CanLII 101449 (ON LAT).
3. 316-002000 v Jevco Insurance Co., 2017 CanLII 63617 (ON LAT) at para. 11-13; See also Hensworth v. Statefarm Mutual Automobile Ins. Co., 2013 CarswellOnt 6345 (FSCO March 18, 20130.
4. 4Sabadash v. State Farm et al., 2019 ONSC 1121 at para. 31 to 40 (leave to appeal denied).
5. 5A.C. v Aviva Insurance Canada, 2020 CanLII 103675 (ON LAT), at para 38 (Dec. 17, 2020)
6. 6Pushparajan v. Aviva Insurance Canada, 2021 ONLAT 20-00156/AABS
7. 7I note this situation contrasts with A.C. v Aviva Insurance Canada, 2020 CanLII 103675 (ON LAT) at paras. 31 – 44, which involved similar underlying personality issues. In that case, however, specific documented events in the period prior to accident led the Tribunal to conclude that a downward spiral was occurring before and largely independent of the subsequently automobile accident.
8. 8Ex. 16 (also marked as Ex. 24), Dr. Zakzanis, Neuropsychological CAT Impairment Determination, dated January 29, 2021, at p. 7 of 34, citing Dr. Tugg’s earlier report.
9. 9Ex. 16, Dr. Zakzanis’s CAT report, at 9-10 or 34.
10. 1016-002000 v Jevco Ins. Co., 2017 CanLII 63617 (ON LAT) at para. 31.
11. 11See Ex. 16 and 24, pages 22, 24-26
12. 12Ex. 15a, page 27,
13. 13Ex. 34, page 13.
14. 14Dr. Zakzanis, Neuropsychological CAT Determination, p. 10-12, records B.L as basically saying he’s independent in his ADLs but lacks motivation.
15. 15For example, see Ex. 2 at page 30 (Dr. Unarket, Physiatry Report); Ex. 3 (Zoey Wong, OT); Ex. 9, page 12 (Dr. Dessoki, Physiatrist); Ex. 19a (Melissa Paniccia, OT); and Ex. 34 (Dr. Sivasubramanian).