Citation: Teutloff v. Wawanesa Mutual Insurance Company, 2022 ONLAT 19-010851/AABS

Licence Appeal Tribunal File Number: 19-010851/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:

Carmen Teutloff

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

David Morin, Counsel

For the Respondent:

Darrell March, Counsel

HEARD by Videoconference:

June 28, 29, 30, July 2, 27, 28, and August 5, 2021

OVERVIEW

1The applicant was involved in an automobile accident on June 5, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“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 sole issue in dispute is whether the applicant has sustained a catastrophic impairment as a result of a mental or behavioural impairment.

ISSUES

3The issue to be decided in this hearing is:

a. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

RESULT

4The applicant has sustained a catastrophic impairment as defined by the Schedule.

BACKGROUND

Pre-Accident

5The applicant was born in 1962 in Costa Rica and came to Canada at age 21. Her first language is Spanish. At the time of the hearing, she was 58 years old. She lived with her husband of nearly 40 years in a log home they built in Huntsville. Their 11-year-old granddaughter was also living with them.¹

6The applicant had her own company cleaning homes and cottages where she worked 60 hours a week for 25 years. She also taught Spanish classes and had an Amway business pre-accident. The applicant and her husband also owned a bed & breakfast in Costa Rica. They would travel to Costa Rica for four to six months a year.

7Overall, the applicant’s pre-accident medical history was largely unremarkable. There were no significant pre-accident psychiatric or cognitive issues. She had surgery on both wrists for carpal tunnel syndrome in 2011 that prevented her from working. She also had a history of right knee pain/osteoarthritis and underwent arthroscopic surgery. She also discussed issues with her relationship with her husband. The applicant went to the ER in 2012 for deer fly bites on her hands. In 2014 she reported pain in her right shoulder.²

The Accident

8The applicant’s report of the accident has been somewhat inconsistent. She was driving home on a rural road when she lost control and swerved off the road. Some reports indicate that she hit a deer,³ some indicate that she hit a tree,⁴ others that avoided the deer⁵, hit the ditch and a few trees stopped her⁶. She exited the vehicle and called a friend, and then the police. Police and a tow truck reportedly attended the scene, but she drove home, followed by the police officer. There is no police report.

Post-Accident

9The applicant testified that she attended the hospital after the accident, but this was wholly unsupported by the evidence. The applicant’s first post-accident medical treatment was sought from her family physician, Dr. Mathies, on June 17, 2014.⁷ She reported that she hit a tree at 60km/hour but did not go to hospital. She was having headaches, trouble remembering the accident, trouble thinking and migraines, as well as pain ‘everywhere”. Dr. Mathies diagnosed concussion, musculoskeletal bruises, and prescribed amitriptyline. The applicant returned on June 26, 2014 with reports of pounding head, nausea, inability to focus, read or watch tv. She was unable to balance for more than a few seconds. The doctor thought she should have a CT scan due to her poor balance and severe headache. The CT scan was normal.⁸ The doctor remarked in December 2014 that the applicant continued to suffer symptoms of a minimal brain injury but was improving. He prescribed Zoloft.⁹ In May 2015 the physician referred the applicant to a neurologist and for an MRI of her head, noting that almost a year had elapsed, and she had regressed, not improved.¹⁰

10Dr. Mathies completed another disability certificate in June 2019, noting that she continued to be unable to work, that she walked with a cane, could not tolerate noise or crowds, and required a Personal Support Worker for personal care. He noted that she had poor balance and fell down easily. Further improved was not expected. She was now taking pregabalin, amitriptyline and fluoxetine.¹¹

LAW

11Pursuant to section 3(2)(f) of the Schedule, an impairment is catastrophic if, in accordance with the American Medical Associations Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”), results in a class 4 (marked) impairment or a class 5 (extreme) impairment due to mental or behavioural disorder.

12Per chapter 14 of the Guides, there are four spheres of functioning that are considered in evaluating mental or behavioural impairment. The applicant bears the onus to prove, on a balance of probabilities, that as a result of the accident she sustained a marked or extreme impairment in one of the spheres.

13Impairments are classified according to how seriously they affect a person’s useful daily function in four broad, overlapping, activity categories, or “domains” using word descriptions in a five-category scale that ranges from no impairment to extreme impairment. It is not the category label that has to be assessed, but rather the language in the descriptions. Each of the four domains of functioning, classes of impairment, and rating criteria are set out in the following table from Chapter 14 of the Guides¹²:

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 Adaptation	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

ANALYSIS

14The applicant submits that she sustained a marked impairment in two domains: (1) Concentration, Persistence and Pace; and (2) Adaptation. The applicant submitted an OCF-19 Application for Determination of Catastrophic Impairment completed by her family physician in November 2016. The severity of her mental and behavioural impairments has been assessed by medical specialists for both sides.

15The applicant was first assessed by Direct IME on behalf of the respondent. The occupational therapy report was prepared by Ms. Reich. Dr. Lawson (neuropsychologist) provided a neurocognitive assessment report and a psychological assessment report. He diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depression, and Somatic Symptom Disorder. Dr. Lawson concluded that the applicant’s clinical presentation was due to the accident.

16The applicant underwent catastrophic assessments with Omega Medical. An occupational therapy report was prepared by Ms. Shahla and a neuropsychological assessment report was prepared by Dr. Lara Davidson, both dated August 23, 2018. Dr. Davidson considered causation, and ultimately concluded that, but for the June 5, 2014 accident, the applicant would not present with the psychological diagnosis and related impairments. She also diagnosed an Adjustment Disorder with Depressed Mood, and Somatic Symptom disorder.

17The assessors assigned the following impairment ratings:

	Respondent Direct IME - Dr. Lawson	Applicant Omega Medical - Dr. Davidson
Activities of Daily Living	Mild (Class 2)	Moderate to Marked (Class 3 to 4)
Social Functioning	Mild to Moderate (Class 2 to 3)	Mild to Moderate (Class 2 to 3)
Concentration, Persistence, and Pace	Mild (Class 2)	Marked (Class 4)
Adaptation	Moderate (Class 3)	Marked (Class 4)

18The applicant submits that Dr. Lawson underrepresented his ratings. She relies upon voluminous medical records and reports, her own testimony, that of her husband, a friend, her rehabilitation support worker, and experts who opine that the applicant has impairments that meet the criteria for catastrophic impairment.

19The respondent’s position is that the applicant is not a credible witness, that her impairments are not as a result of the accident but rather other factors such as her medication use, and that her symptoms and impairments are overstated. The respondent also relied on voluminous medical records, surveillance of the applicant in 2017, 2019 and 2020, and medical reports that opine that the applicant does not have a catastrophic impairment.

20The respondent submits that there are inconsistent reports on how the accident occurred and the events around it. The respondent is not arguing that the accident did not occur, but rather that the event rose to a level to cause the issues described by the applicant. While I agree the applicant’s reports surrounding what occurred on June 5, 2014 do vary, I accept that the applicant sustained injuries as a result, which led to her current impairments.

21The respondent also suggests that her presentation is not caused by the injury sustained in the accident, but rather by other post-accident incidents (struck her head with a hammer, additional post-accident falls, and deportation of her son), or her use of medications and alcohol. While I agree that these are complicating factors, I accept that the applicant’s impairments arose as a result of the accident-related injuries – as concluded by the respondent’s own assessor, Dr. Lawson.

22Credibility is not a static or all or nothing situation. A person may be truthful about one subject while being untruthful or mistaken on another. While I agree the applicant’s ability to recall was at times selective and self-serving, I do not find that she was so unreliable that she has failed to discharge her burden of proof.

23Both the respondent’s and the applicant’s experts agree that the applicant suffered a psychological impairment as a result of the accident. Having considered the totality of the evidence before me I am satisfied that the applicant suffered a mental or behavioural disorder as a direct result of the accident.

Impact of Impairments

24The applicant testified that prior to the accident she owned a cleaning business where she worked 13 hours a day and had three or four employees. She was unable to return to work after the accident. She also did not return to teaching Spanish, or the Amway business with her husband. Her husband took over all the financial responsibilities post-accident. They no longer operate a B&B in Costa Rica. However, the applicant did continue to travel to and from Costa Rica for several months a year. This involves several hours of driving from her home to the airport, approximately 5-hour flight, and then a 30 km drive to her home in Costa Rica. Her siblings help with personal care and looking after the home in Costa Rica. She feeds the chickens and collects eggs.

25Prior to the accident the applicant’s her granddaughter was living with them. She testified that within a few months of the accident she was unable to continue caring for the child, because she was unable to tolerate the noise, as she would get a headache and become angry. The child returned to living with her mother. She was able to take her granddaughter to the beach once in 2019, and in March 2020 took her into Toronto to go to the aquarium.

26The applicant used to attend church every Sunday before the accident. She testified that after the accident, she didn’t go to church as often, no longer volunteered, and did not socialize with her friends as she had previously applicant testified that she no longer volunteered at the church for coffee hour, cleaning or taking care of the cemetery. She had lots of friends and frequently hosted BBQ’s and parties. She still has her friends over occasionally and makes chili, but not multiple different dishes.

27The applicant was responsible for all the cooking and cleaning before the accident but was not able to complete most activities post-accident. There are safety issues in the kitchen, as the applicant has forgotten pots on the stove. Her husband does most of the cooking now, but she will help him sometimes. The applicant has been paying out of pocket for assistance from an RSW since 2016.

28The applicant has suffered additional falls since the accident due to her balance issues. After a fall in May 2015 her driver’s licence was suspended at the recommendation of her family physician. Following a neurological assessment, it was reinstated. There was a significant fall that occurred in Costa Rica when she reportedly landed on her face. She had another fall at home in Huntsville getting in the shower. The applicant testified that she uses a cane most of the time due to her balance issues. The surveillance does show her using a cane, albeit not all the time.¹³ She was captured on surveillance losing her balance and almost falling on one occasion when she did not have her cane.

29After getting her licence back, the applicant resumed driving. She has driven to Bracebridge to have lunch with a friend, and she testified that she would drive her son to work on occasion, a half an hour away. Sometimes she would drive home and go back to get him, or sometimes she would just wait in the car for a couple hours. She continued to drive to Bracebridge to meet her friend for coffee or lunch, although less often.

30Significant difficulty understanding written language was reported, as well as nausea associated with reading and writing. The applicant has been observed by multiple assessors and treatment providers to vomit during stressful or demanding tasks. She uses a memory board at home and an agenda book. She is unable to manage her medications effectively, so her husband reminds her and organizes her medications in a pillbox.

31Her son had issues with the law and subsequently with immigration. They invited him to come and live with them when he was having issues with immigration. She was able to hire a lawyer for him, and had a friend take her to visit him in the jail in Milton. She also communicated with a lawyer they hired for him by email. In 2017, the applicant also went to her own family physician to ask him to write a letter to immigration that if he was deported it would cause her “great medical concern”. She got the letter, drove to the library, and faxed it to the lawyer. She also got statements from friends for help with the son’s deportation, which she faxed to the lawyer. He was eventually deported, which the applicant described as devastating.

32Due to her deteriorating mood and increased frustration and stress, the applicant began increasing her alcohol intake. In 2018 she was reportedly consuming alcohol most days. She would drink a 24 oz bottle of whisky in two days, as well as beer and wine.¹⁴

33A psychological assessment report prepared by Dr. Shujan in September 2016 diagnosed PTSD, Depressive Disorder, and Somatic Symptom Disorder. He noted that the applicant was taking morphine that she had obtained in Costa Rica 1-2 times a week. She had not told her family physician. Dr. Shujah expressed concern that her use of morphine may be contributing to her physical sequelae, including nausea, headaches, dizziness, and stomach upset.

Catastrophic Assessments

34The final step in assessing the effect of the mental or behavioural disorder on the applicant’s life is to determine the severity of the impairment in each of the four spheres according to the criteria set out in the Guides. Given that the dispute involves only two spheres, I have limited my analysis to adaptation and concentration.

Concentration, Persistence and Pace

35According to the Guides, the following is to be evaluated under this category:

“…the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings. In activities of daily living, concentration may be reflected in terms of ability to complete everyday household tasks.” ¹⁵

36I find that the Guides’ definition of marked impairment best reflects the applicant’s clinical manifestation. I prefer the ratings of Dr. Davidson over Dr. Lawson in this sphere.

37Of note, at the respondent’s request the applicant attended a neuropsychological assessment in July 2017 with Dr. Watson, however the applicant reportedly experienced cognitive fatigue and visual distress during the assessment resulting in her becoming nauseous. She reportedly attempted to persevere, but the assessment was terminated by the doctor due to her nausea.¹⁶ The assessment was ultimately completed by Dr. Lawson in September 2017; however, he makes no note of the first, terminated assessment.

38Dr. Lawson’s psychological assessment was completed in conjunction with the Occupational Therapy report from Ms. Reich, in which he assigned impairment ratings. Dr. Lawson and Dr. Davidson are in agreement that the applicant did not overreport her psychological symptomatology in the testing administered.

39Dr. Lawson noted that the applicant had problems with her short-term memory, and that she is no longer allowed to cook in the kitchen having burned pots on the stove. The applicant also reported difficulty with working memory, such as walking into a room and forgetting why, or forgetting what she wanted to say. He noted that Ms. Reich had commented that the applicant appeared to fatigue and physically deteriorate during the course of the occupational therapy assessment, as evidenced by her vomiting after physical exertion. She did remain on task, but during the assessment she never engaged in any lengthy or challenging activity for which she needed to persist and put forth a lot of physical or mental effort. Dr. Lawson concluded that the applicant demonstrated a mild degree of impairment (Class 2) for Concentration, Persistence and Pace.

40Ms. Reich attempted to complete situational testing during her in-home assessment. The applicant reported that she had lost the ability to read in English and could not read the instructions. The instructions were read to her, but she could not understand what was being asked. She declined to perform any of the kitchen tasks because of nausea and fear she may vomit again. Ms. Reich noted that the applicant presented with short-term memory problems, difficulties with divided attention, and required questions to be repeated several times. Word finding difficulties and long pauses while communicating was also noted.

41The applicant’s assessors, Ms. Kara (occupational therapist) completed a two-day situational assessment in Toronto on June 7 and 8, 2018, and Dr. Davidson (neuropsychologist) completed her assessments June on June 5, 6, and 11, 2018.

42Ms. Kara noted that, when presented with activities which require prolonged focus and concentration, the applicant was only able to persist for short periods of time secondary to an increase in physical and emotional symptoms. Even when external factors and social interaction are limited, she demonstrated difficulty with persistence. If her symptoms are exacerbated, her attention and concentration levels become impaired to the point where she lost focus and simply withdrew from the task. Ms. Kara felt that it was quite evident why she was no longer able to work or participate in other activities given her presentation. On the first day of the assessment, she was unable to persist with the full interview and asked to complete it the following day. During functional testing, she had difficulty pushing herself and chose to end the first day early. On day two, she struggled with the reading comprehension exercise. Even after taking an extended break during which she lay down, the applicant could not continue and terminated testing four hours early. The applicant vomited twice during functional testing, fell asleep after being left alone during the reading comprehension test.

43Overall, Dr. Davidson’s report contains significantly more information regarding the applicant’s activities, function, and impairments than Dr. Lawson’s. Dr. Davidson’s assessment included collateral input from a friend, which Dr. Lawson’s did not. The applicant required the assistance of a reader to complete the intake questionnaire and the psychometric measures, due to her difficulty comprehending, concentrating, and nausea that occurred upon sustained concentration. The applicant completed the testing slowly, had to return on June 11 because she was unable to complete all of the evaluation over the two days that were scheduled. She had significant difficulty focusing and sustaining her attending on testing.

44Both Dr. Lawson and Dr. Davidson noted poor performance on the validity measures in the cognitive testing administered. Dr. Davidson suggested that the results may actually under-represent the extent and degree of any significant findings due to the applicant’s tendency to avoid negative or unpleasant aspects of herself. Both doctors found no evidence of over-reporting. Dr. Davidson concluded that her poor scores on validity testing likely relate to diminished engagement due to “quite profound somatic focus and somatic distress”, and her related diminished attention to the cognitive measures. The applicant scored in the extremely low range on attention tests and language/fluency, and largely average on memory testing. Dr. Davidson agreed with Dr. Lawson on the diagnosis of Adjustment Disorder with Depressed Mood and Somatic Symptom Disorder. Dr. Davidson attempted to explain the difference in the impairment ratings they assigned: first, it was possible that the applicant’s condition had deteriorated in the time elapsed between the two assessments. Secondly, that the functional component of Ms. Kara’s assessment was more relevant than Ms. Reich’s, considering that the Guides recommend that an assessment setting more like that of the working world. Thirdly, Dr. Davidson suggests that the applicant’s self-reports, are consistent with the records of the treating practitioners, which indicate substantially diminished engagement, which is not addressed by the respondent’s catastrophic assessors. I agree.

45The description of the applicant’s impairments by Dr. Lawson and Ms. Reich suggest much greater than mild impairment in this domain. I find that Dr. Davidson and Ms. Kara’s conclusions more accurately capture the applicant’s level of impairment, as reported by the applicant, and also described in the treating practitioner’s records, and the testimony of Ms. Hartwick, the applicant’s rehabilitation support worker. The applicant’s ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings is significantly impaired. The available information supports a marked impairment in the domain of Concentration, Persistence and Pace, reflecting impairment that significantly impedes useful function.

Adaptation

46Impairment in adaptation is defined by the Guides as the repeated failure to adapt to stressful circumstances, in the face of which “the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate or have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.”¹⁷ Therefore the focus of the analysis in this domain is on the psychological stress tolerance of the individual. Impairment in adaptation affects the ability to function across all activity domains, not only work-like settings.¹⁸ The Guides provide examples of adaptation, such as the ability to use public transportation, travel to and from unfamiliar places, to set realistic goals and make plans independently of others.

47I prefer Dr. Davidson’s ratings to Dr. Lawson’s in this domain. The applicant’s impairments significantly impede useful function.

48The applicant reported to Dr. Lawson that she had not resumed any of her vocational or volunteer activities at that time. The applicant identified her physical restrictions and cognitive dysfunction as factors that limit her from socializing with others and engaging in vocational and avocational duties. The doctor’s analysis is somewhat scant on this area. He simply quotes the applicant’s reported inability to return to work and assigns a moderate degree of impairment (Class 3). He doesn’t appear to have considered the description from the Guides, noted above, or consider the examples provided therein.

49Dr. Davidson notes that the applicant does not appear to cope well with stress, and experiences nausea and vomiting upon exertion, concentration, or stress. Along with her deteriorating mood and increased stress, she increased her alcohol consumption. Dr. Davidson noted that self-medicating with alcohol reflects poor stress adaptation. The applicant was no longer able to organize or plan effectively. She now requires the use of the memory board and agenda. She was unable to independently organize the trip to Toronto for Dr. Davidson’s assessment. Her RSW accompanied her to the assessment. She now defers decisions and tasks to her husband that she would normally complete. She avoids social interaction and was unable to control her temper around her granddaughter. When presented with tasks similar to her previous work during the occupational therapy assessment, she was unable to complete any of the three tasks, even with extended breaks. She withdrew and moved onto the next task. The applicant was unable to control her anxiety and stress during the second day of functional testing with Ms. Kara. She wet herself due to overwhelming stress and vomited. I prefer the conclusions of Dr. Davidson, that the applicant’s psychological and cognitive symptoms would likely interfere substantially with the applicant’s ability to manage stresses common to the work environment such as regular attendance, making decision, completing tasks, interacting with others, and responding appropriately to changes in the environment. The available information supports a marked (Class 4) impairment with respect to Adaptation.

CONCLUSION

50For the reasons above, I conclude on a balance of probabilities that the severity of the applicant’s level of impairment with respect to concentration and adaptation set out in the Guides do meet the threshold for catastrophic impairment pursuant to section 3(2)(f) of the Schedule.

Footnotes

1. 1Exhibit 1 Tab 1.
2. 2Exhibit 1 Tab 18.
3. 3Exhibit 1 page 7, 11, 16, 21, 32
4. 4Exhibit 1 page 570.
5. 5Exhibit 1 Tab 10.
6. 6Applicant’s testimony.
7. 7Exhibit 1 page 570.
8. 8Exhibit 1 page 575.
9. 9Exhibit 1 Tab 3.
10. 10Exhibit 1 Tab 5.
11. 11Exhibit 1 Tab 6.
12. 12Guides page 301.
13. 13Exhibit 2 Tab 36.
14. 14Exhibit 1 Tab 14 page 362.
15. 15AMA Guides, 14/294.
16. 16Exhibit 1 Tab 12 and 13.
17. 17AMA Guides 14/294.
18. 18AMA Guides 14/294.