Franche v. Wawanesa Mutual Insurance Company, 2022 CanLII 98067

Citation: Franche v. Wawanesa Mutual Insurance Company, 2022 ONLAT 21-000723/AABS

Licence Appeal Tribunal File Number: 21-000723/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:

Alexandra Franche

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Jeffrey Shapiro

APPEARANCES:

For the Applicant: Michael Switzer, Counsel

For the Respondent: Darrell March, Counsel

Court Reporters: Anthony Ng, Thomas Delinger, Bruce Porter, Nicholas Shad, Victory Verbatim

HEARD: By videoconference January 10-14, April 4-8, and June 17 and 20, 2022

BACKGROUND

1The applicant (“A.F.”) was injured in a July 25, 2017 automobile accident (“the accident”). She submits that the accident aggravated her concussion symptoms from a May 25, 2014 prior work-related incident and caused new impairments. She received benefits from the respondent (“Wawanesa”) under the Schedule.¹ When Wawanesa denied A.F.’s request to be designated catastrophically impaired, certain medical benefits, and an attendant care benefit (“ACB”), A.F. appealed to this Tribunal. A hearing was held before me. I find that A.F.’s impairments are significant but are not catastrophic under the Schedule’s current definition. Given Wawanesa’s hearing conduct, A.F. is entitled to some costs.

ISSUES

2The benefits at issue are (1) catastrophic impairment, (2) ACB, (3) medical treatment, and (4) out-of-pocket expenses. The precise issues are:

1. Has A.F. sustained a catastrophic impairment under the Schedule?

2. Is A.F. entitled to $3,588.66 for a sleep system (mattress) proposed by FunctionAbility Rehabilitation Services (“FunctionAbility”) in a treatment plan/OCF-18 (“plan”) dated January 7, 2019?

3. Is A.F. entitled to $1,179.76 ($1,337.28 less $157.52 approved) for devices proposed by Invicta Works in a plan dated August 31, 2020?

4. Is A.F. entitled to $3,569.32 ($5,022.74 less $1,453.42) for devices proposed by FunctionAbility in a plan dated September 1, 2020?

5. Is A.F. entitled to $598.50 ($1,576.87 less $978.37) for physiotherapy treatment proposed by Lifemark in a plan dated November 11, 2020?

6. Is A.F. entitled to $1,128.00 for chiropractic treatment proposed by Back in Balance Chiropractic in a plan dated November 2, 2020?

7. Is A.F. entitled to $623.34 ($1,243.88 less $620.54) for devices proposed by FunctionAbility in a plan dated November 5, 2020?

8. Is A.F. entitled to $1,278.08 for massage therapy treatment proposed by Healthy Choice Massage in a plan dated November 23, 2020?

9. Is A.F. entitled to $2,200.00 for vision therapy treatment proposed by Dr. Jonathan Wareham in a plan dated March 2, 2020?

10. Is A.F. entitled to $1,873.00 for chiropractic and physiotherapy treatment proposed by Back in Balance in a plan dated March 10, 2020?

11. Is A.F. entitled to $1,445.00 for chiropractic treatment proposed by Lawrence Chiropractic in a plan dated April 6, 2020?

12. Is A.F. entitled to $2,829.48 ($5,030.45 less $2,200.97) for devices proposed by FunctionAbility in a plan dated February 25, 2021?

13. Is A.F. entitled to $564.00 for chiropractic treatment, proposed by Back in Balance in a plan dated March 9, 2021?

14. Is A.F. entitled to $469.97 for various devices, listed on an expense claim form (OCF-6) dated August 23, 2020?

15. Is A.F. entitled to $620.72 for CBD oil, yoga pass, earplugs and glasses, listed on an expense claim form (OCF-6) dated February 7, 2020?

16. Is A.F. entitled to an attendant care benefit of $844.30 a month from November 17, 2020 to date and ongoing?

17. Is A.F. entitled to $564.00 for chiropractic treatment proposed by Back in Balance in a plan dated March 16, 2021?

18. Is A.F. entitled to $2,160.07 for devices proposed by FunctionAbility in a plan dated April 28, 2021?

19. Is A.F. entitled to $18.26 for Personal Protective Equipment (“PPE”) proposed by FunctionAbility in a plan dated April 28, 2021?

20. Is A.F. entitled to $1,696.26 for an occupational therapy assessment FunctionAbility in a plan dated September 3, 2021?

21. Is A.F. entitled to interest on any overdue payment of benefits?

22. Is Wawanesa liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to A.F.?

RESULT

3A.F. is not catastrophically impaired as defined by the Schedule (Issue 1). As the parties advised that A.F. has exhausted her policy’s treatment limits, given my finding on the CAT issue, I have not addressed issues 2-22.

MOTIONS

4The parties asserted various motions which I ruled on during the hearing.² I will mention a few, here. First, A.F. sought to add issues 16-20 per a motion dated October 12, 2021. I granted the motion given that Wawanesa acknowledged that it had agreed to add the issues at a prior motion hearing. While some confusion was created by the Tribunal not issuing a written order immediately following that hearing confirming that agreement and that the issues were added, that consent was not disclosed to the Tribunal in Wawanesa’s motion materials, but should have been.

5Second, A.F. requested accommodations under the Human Rights Code. Without a formal finding on disability, the parties agreed that A.F. would testify as best she could and we would take breaks as needed. In fact, consistent with many of the assessments, A.F. advised that she needed many breaks.

6Third, A.F. sought to exclude the testimony and reports of ten witnesses per her December 10, 2021 Motion arguing that the witnesses did not provide expert duty forms, and in the case of Dr. Chandrasena, also did not comply with a prior order to provide raw testing data. I ordered that Dr. Chandrasena’s report and testimony be excluded for the reasons cited by A.F. and particularly that his raw data is necessary for proper cross-examination and is violative of prior orders to produce it. As for the other assessors, rather than excluding their testimony, I considered their lack of expert duty form when weighing their testimony.

7After making my ruling excluding Dr. Chandrasena, I noted to the parties that the Occupational Therapist on his assessment team, Ms. Anstey, mentioned Dr. Chandrasena’s scores. Thus, I’ve viewed Ms. Anstey’s report with caution to ferret out her observations from his.

8During closings, the parties each requested that I make various inferences on the evidence. In general, I have not accepted them, but again mention several.

a. A.F. requested that I exclude reports for a specific benefit as evidence when considering a different benefit. I disagree. As Wawanesa pointed out, A.F. asked that I consider her catastrophic reports in support of her claims for other benefits. From my perspective, any report about A.F. is potentially relevant, but the weight afforded must be considered. For example, history provided by A.F. regarding one benefit may have importance to other benefits, while an opinion on employment might have less significance to whether treatment is necessary.

b. During closings, A.F. requested Dr. Ko’s reports be excluded. However, those were admitted, at A.F.’s request, at the outset of the hearing.³

c. A.F. requested that I find all treatment plans as “deemed incurred” per s. 3(8) of the Schedule. I do not see evidence to do so.

BACKGROUND

9A.F. is currently 38 years old. While she received occasional massage treatment in 2010-2013, she appears to have been a healthy and motivated young teacher, with some hints of anxiety and occasional minor back pains.

10Thus, the key events are A.F.’s May 25, 2014 work-related injury (i.e., “the football incident”) and the subject July 25, 2017 accident. With those events in mind, the evidence focused on her general condition after the football incident and just before the subject accident, the accident itself, and her subsequent impairments.

11On May 25, 2014, while working, A.F. was struck in the head by a football causing a concussion and multiple post-concussive difficulties, including persistent headaches, dizziness, cognitive difficulties, photophobia, and visual disturbance. A.F. submits her symptoms came on after that incident, and she was out for a short period, but returned and managed to finish the school year.

12Wawanesa submits that her recovery from the football incident took an unusual pattern. While A.F. did manage to return and complete the 2013-2014 school year, in the ensuing summer of 2014, A.F. took a physically active trip to Peru, albeit with some restrictions. Yet, at the end of summer, when she commenced teaching in the 2014-2015 school year, her symptoms significantly worsened. By September 2014 she complained of aggravated residual post-concussive symptoms that resulted in ongoing medical follow-up and an inability to work. After an extended work absence, she improved to the point that in the Summer of 2016, she vacationed in Thailand and Cambodia and was ready to attempt a return to work after the summer for the 2016-2017 school year. Again, however, on starting the new school year at summer’s end in 2016, her symptoms returned. By September 2016, A.F. needed her workload to be decreased, and by January 2017 she completely stopped working. She planned but had not returned to the classroom when the subject accident occurred in July of 2017.

13As a result of the football incident, A.F. received CPPD, IRB, LTD from her union and underwent a host of assessments. For instance, in the Spring of 2015, A.F. underwent a brain MRI (reported as normal) and was assessed by a multidisciplinary team at the WSIB Clinic of UHN. According to a May 2015 report by Dr. C. Masanic, physiatrist, A.F.'s collective diagnoses included possible mild traumatic brain injury (concussion), cervical strain, chronic headaches, rule out Adjustment Disorder, Unspecified, with depressed mood, irritability, and anxiety; and rule out Somatic Symptom Disorder, Moderate.

14A.F.’s current assessors summarized that A.F. had developed psychological distress, and was diagnosed with Major Depressive Disorder, single episode, moderate, by Dr. Sabourin, psychologist, in January 2015.⁴ A November 20, 2014 neuro-optometric assessment notes she complained of headaches, blurred vision, eye strain and fatigue when looking near, difficulty reading and light sensitivity, and diagnosed with “Accommodative Insufficiency & Infacility, Binocular Vision Dysfunction, and Photophobia.”

15A.F. contends that while her condition from the football incident required her to leave work in January 2017, soon after her symptoms dramatically improved to the point that by July of 2017 she was basically symptom free, and ready to return to work in the fall. There is some evidence to that effect, but distinctly not to that degree that A.F. testified or submits. In fact, her family doctor records show a referral to a rehabilitation clinic in mid-April 2017, a May 16, 2017 note records that A.F. woke experiencing splitting headaches, and a June 13, 2017 note records that A.F. is sleeping well and started some vision exercises, but last week had two bad days with “huge” headaches.

16The June 13, 2017 note does mention A.F. is switching schools, implying an anticipated return to work in the fall of 2017⁵ and a July 21, 2017 note records that A.F. reports doing a lot better at the beginning of July and Dr. Yau and A.F. were expecting to return in September with two large French classes and one drama class, which somewhat corroborates A.F.’s testimony. However, the July 21, 2017 visit hardly sounds symptom free as A.F. still had neck tension that causes headaches, and other symptoms, such as only being able watch T.V. up to 20 minutes, scan pictures on the computer for 60 minutes, and could not even do 10 minutes of reading.

17Several days later, A.F. was involved in the July 25, 2017 subject accident, as she pulled off the highway in Prescott, Ontario on a weekend trip to Kingston. While accounts vary, I find it was a low speed collision.⁶ A.F. remembers the accident, did not lose consciousness, and contemporaneous accounts show she did not strike her head, although she later claims she hit the head-rest. She felt some low back pain, was checked by the paramedics, declined to go to a hospital, and told to follow-up with a hospital if needed. Instead, her friend drove them to Kingston and the next day, as originally planned, they visited a museum to complete the trip, but A.F. started to notice increased pre-accident symptoms.

18The following day - July 27, 2017 - she saw Dr. Yau,⁷ who records complaints of dizziness and trouble reading that began on the day following the accident, as well as headaches and pain affecting her neck, back, shoulders, and upper arms. Dr. Yau diagnosed a whiplash injury (“likely mild") and advised A.F. to attend massage and physiotherapy and to use Tylenol and Advil for pain. A.F. testified that many of her injuries were the same as from the football incident, but some were new such as vertigo and dizziness.

19Interestingly, on July 29, 2017, Dr. Yau faxed a form regarding the coming return to work, which also shows certain accommodations being requested as necessary. While dated post-accident, I understood from the testimony that it was based on the pre-accident status.⁸

20A.F.’s work history following the subject accident also followed a similar unusual course. A.F. started the school year in August 2017 as scheduled, but reduced her hours in October of 2017, and stopped working in December 2017 and never returned. A.F. partook in a back-to-work program in the 2018-19 school year, but never progressed beyond 60 minutes.

21On January 24, 2020, A.F. requested to be designated CAT. She relies on the assessments by the Omega team; Wawanesa relies on the Vista team. The parties also submitted a multidisciplinary IRB assessment led by Dr. Ko, on behalf of A.F., and a host of assessments and medical records arising out of the 2014 football incident (both before and after the 2017 accident) and related to the various treatment plans and benefits related to the 2017 accident.

22During testimony, A.F. asked for frequent breaks and generally kept her computer screen covered, with my permission, as she explained that light and other factors cause her symptoms to spike. She appeared to decompensate as time went on – consistent with descriptions in many assessments. She explained that she suffered headaches, dizzy spells, balance impairments, right knee, neck and shoulder pain, light sensitivity, and some sleep issues in the accident, and that many triggering events cause her symptoms to “spike” requiring her to close her eyes and rest.

ANALYSIS

23A.F. has the onus to establish catastrophic status and entitlement to the requested benefits by a preponderance of the evidence, rather than Wawanesa having to disprove it.

24The parties agree that in Schedule matters causation is a factual determination made on a balance of probabilities using the "but for" test. The Divisional Court⁹ explained that a person alleging impairments from personal injuries must demonstrate that they would not have suffered the loss “but for” the accident. 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.

25A.F. submits she was basically symptom free and the accident aggravated her symptoms and caused new ones. Wawanesa asserts several positions - A.F. was off work since April 2016 with no reliable evidence that she could return to work and thus symptomatic from the football incident, the accident had negligible effect on her,¹⁰ and regardless of the cause, she has functional abilities not consistent with CAT, and her testimony is not reliable and may not be credible.

Issue 1: Is A.F. catastrophically impaired?

26No. A.F. is seeking to be designated “CAT”, which would increase the amount of benefits available to her and remove the five-year limit in which she can claim benefits. The Schedule provides several definitions of CAT. A.F. 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. (Underline added.)

27In 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).

28The 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 include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual functions, sleep and social and recreational activities.

29In term of severity ratings, 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.

30The Schedule then deems a person “catastrophically impaired” if the person is rated a class 4 in three or more domain areas or a class 5 in any one domain.¹¹

31In this case, Dr. Dory Becker opined that A.F. suffered class 4 (marked) impairments in three of the four domains, and a class 3 (moderate) impairment in the fourth domain – social functioning. Thus, putting issues of causation aside, if A.F. only suffers a class 3 in ADLs, she is not CAT. I find that to be the case.

A. Theories Explaining A.F.’s impairments

32As a threshold point, while A.F. is clear about her symptoms, the numerous assessments struggle with what is causing them – with four explanations. All generally agree that her soft-tissue injuries and concussion symptoms have not followed a typical course, and many comment that they greatly exceed typical healing times and severity.

33First, it’s possible that A.F. is faking, yet there is limited evidence to that effect. For instance, while some assessors believe A.F. was exaggerating some symptoms¹², no assessor opined such exaggeration to be intentional. In fact, even assessors that found no objective explanation for her physical, visual or concussive symptoms, still found her sincere. A.F. also has passed numerous validity tests across many assessments.

34Second, A.F. may be experiencing concussion induced vision related issues and A.F. believes that therapy based on such concussion-vision issues have been helping her. However, Drs. Ranalli¹³ and Halle strongly argue that such concussion-vision issues and therapy is not accepted medicine, the examinations do not support vision issues, and the Omega team did not subscribe to this theory.¹⁴ Thus, while it’s possible A.F.’s issues are driven by a concussion-vision connection, the evidence supports Dr. Ranalli. Also, even if I’m incorrect, vision assessments occurred in November 2014, May 2017, and February 2019, yet the last one records complaints and diagnosis similar to May 2017, which is just before the accident, casting further doubt that vision issues are accident related.¹⁵

35Third, Dr. Ko’s approach is that A.F. developed a chronic pain syndrome or similar, i.e., his report also diagnoses fibromyalgia. He believes education such as the difference between hurt and harm is an important part of A.F.’s recovery. To a degree, Omega incorporates this chronic pain approach.

36The fourth approach, advanced by Omega, strikes me as the most accurate. In short, Dr. Becker’s January 6, 2020 Mental/Behavioural Evaluation¹⁶ report does not focus on concussion issues, but rather her emotional reaction to it, diagnosing somatic, depressive and anxiety issues. Dr. Becker explained:

In summary, [A.F.] currently meets DSM-5 criteria for diagnoses including Somatic Symptom Disorder, Persistent, Severe and Major Depressive Disorder with Anxious Distress, in partial remission. The synergistic effect of her pain and postconcussive symptomatology, worry about an exacerbation of pain and postconcussive symptomatology, fear of sustaining further harm, poor pain coping, fear avoidance behaviours, depressive symptomatology (including diminished interest, anhedonia, reduced motivation), disturbed sleep, fatigue, low energy, worry, anxiety, irritability, a tendency to feel easily overstimulated and overwhelmed, and cognitive difficulties contribute to three Marked impairments. That is, she is evidencing impairments that significantly impede useful functioning with regard to her ability and willingness to engage in a variety of her pre-accident activities of daily living (including self-care, household chores, work-like activities, social and recreational activities, sleep, travel, ambulation, and communication), sustain focused attention and persist with tasks, and cope with and adapt to perceived stress. As such, it appears that the subject accident has contributed to a multitude of psychological symptoms and impairments that preclude useful functioning for this young woman who is not only unable to manage what she did pre-accident, but also what would be expected of a young teacher of 35.

37I find the approach fits the evidence and is strengthened by directly addressing causation with a plausible explanation. Dr. Becker opined it is reasonable to conclude that the accident materially contributed to A.F.’s current psychological symptoms and associated impairments in functioning, and but-for the subject accident, A.F. “would not be experiencing the breadth and severity of current psychological symptomatology and associated impairments in functioning.” She notes A.F.’s pre-accident history of post-concussive symptoms, somatic focus, depressive symptomatology, and worry “could have” made her more vulnerable to the deleterious effects of the accident. Dr. Becker notes that A.F.’s condition is not stable and may improve, but still warrants a catastrophic rating.

38Dr. Hastings, neuro-physiatrist with the Omega team similarly opined that he “suspects” A.F. suffered an adverse emotional response to the accident that is contributing to her functional impairments, and that she may suffer from a chronic pain syndrome.¹⁷ Regarding Mental Status Impairment, he notes that despite her ongoing headache and concentration complaints, “given the lack of direct head trauma, the non-suggestive mechanism, and the lack of documented neuro- trauma features such as LOC, and PTA, there is uncertainty as to whether the cognitive complaints are a result of a brain injury or whether they are secondary to psychological factors. However, she has been diagnosed by her treating physician with concussion…I will advance a small rating for up to a first-tier impairment under Table 2 in the lower end of the available range…”¹⁸

39I note that Dr. D. Halle’s Independent Neurological Medico-Legal Assessment finds no objective finding to support A.F.’s claims and greatly disputes the concussion and vision issues and even believes that A.F. has been victimized by “unscrupulous physicians” supporting that claim. Yet, he concludes that A.F. is fully honest in her beliefs and that she is actually experiencing the symptoms to which she describes – further supporting a somatic approach.¹⁹

B. Impairment Ratings

40I accept Omega’s ratings in three of the four domains – i.e., its two class 4 ratings and one class 3 rating. Ample evidence support the class 4 ratings in adaptation and also in concentration, persistence & pace as A.F. has not functioned well in those areas. In the social functioning domain, evidence established that she has had a decline, albeit not as severe. Since the assessment, she has a live-in boyfriend and improved, so Omega’s class 3 rating may be high, but I accept it.

41However, in the fourth domain, ADLs, Omega’s class 4 impairment strikes me as high for several reasons.

42First, the assessments overwhelming establish that A.F. is independent in her self-care.²⁰ Most so conclude based on her own self-reports, while some, such as OT assessments, include the assessors’ observations.²¹ Many other reports provide a more general expression that she is independent in her ADLs.²²

43A.F. put a different spin on her ADLs, but her testimony does not change the result. For instance, she submits an inability to do involved cleaning because of exertion or dizziness with bending, but still does the cleaning and most house tasks. While certain haircare is difficult, she takes care of her hygiene. She may have difficulty driving in the rain, but still drives – even longer day trips. Beyond self-care, she communicates well, has been in extended intimate relationships, and although she had sleep issues, since her new sleep system (albeit not her preferred one), numerous medical records record her sleeping.

44Second, there appears to be a mild discernible gap between her perception and description of her impairments, and her actual performance. For instance, A.F. seems to be taking more and more day trips, is involved in an intimate relationship with a live-in partner and at least before Covid socialized with friends, and engages in some physical activities, such as biking and cross-country skiing. These activities may be reduced from before the football incident, and possibly the accident, but the abilities include “some but not all” functioning.²³

45Third, there were many contradictions in the testimony which cause me to assign less weight to A.F.’s testimony and self-reporting and, in-turn, Dr. Becker’s scores which are heavily influenced on her reliability.

46For instance, Shahla Kara’s OT Assessment notes A.F. stated that she “no longer partakes in any sports activities due to her fatigue and lack of energy” and “she has not traveled since the accident due to her post-concussive symptoms”²⁴, yet she clearly does both – albeit not to the extent as before.

47Dr. Simon’s April 6, 2020 Orthopaedic IRB Evaluation for an IRB notes that A.F. claimed that the football incident symptoms had resolved and that in the six months prior to the accident she did not have any musculoskeletal symptoms requiring medical attention. However, A.F. testified that in July 2017, a couple of weeks prior to the accident, she was attending all activities, but still going to physiotherapy for her neck.

48A.F. testified that she hit the headrest, but earlier and some current accounts say otherwise. Dr. Becker’s report says she did not hit her head, although A.F. claims that is in terms of the steering wheel or door, but she did hit the head rest.

49A.F. testified that the accident was quite forceful and Dr. MacDonald’s March 15, 2018 Neuropsychological Assessment records A.F. saying the other vehicle was going 40-50 km/h,²⁵ yet Dr. Yau’s July 27, 2017 notes two days after the accident state that A.F. advised both cars were going “quite slowly.” The police collision report states the vehicles were going 5km and 20km. A.F. says she called the police department 2-3 times to correct it.

50Dr. J. Farewell’s April 2015 IE Psychiatric Consultation Report for the WSIB noted A.F.’s sudden rapid breathing which subsided within 10 minutes of taking Advil, although that was not the typical response. She also displayed certain pain behaviors only during formal testing. He believed she had pre-morbid anxiety issues. He noted the “atypicality of her overall presentation.”²⁶

51Fourth, the Guides provide one example of a Class 4 rating in ADLs, and it is instructive. It spoke of a patient with a 9-year history of chronic paranoid schizophrenia, who has not worked more than 2 months at a time since dropping out of business college at 19, and who had only some ability to care for herself while living at home and being cared for and supported financially by her parents. She constantly needed be to reminded to bathe, take her medication, and complete the household chores. A.F.’s situation is much different.

52Fifth, Dr. Becker also rated A.F. under a Whole Person Impairment analysis and only offered a 15% rating for mental and behavioral impairments. That rating is much lower than the marked impairment being offered for ADLs under this criterion.

53Based on all the evidence, I accept that A.F. has functional limitations, but the evidence does not establish that her limitations in the area of ADLs rise to the level of a class 4 impairment.

Issues 2-22

54As A.F. is not designated CAT, I have not addressed the remaining issues. Neither interest nor an award under Section 10 of Regulation 664 are applicable.

Request for Costs

55Each side requested its costs in this matter. Under Rule 19 of this Tribunal’s Rules²⁷, the Tribunal may award costs if it determines that a party acted “unreasonably, frivolously, vexatiously or in bad faith” during the proceedings. Costs shall not exceed $1,000 for each full day of attendance at a motion, case conference or hearing.

56Wawanesa’s request lacked specifics. I find no basis for an award as a mere finding on the merits against a party does not trigger the Rule, and although A.F.’s counsel was not flawless (see below), it was a negligible event in context.

57A.F. was specific in her request. She is seeking $500.00 for each day arguing that constant and lengthy objections and interruptions by Wawanesa’s counsel delayed the matter. I find substantial merit in her submission and award $500 per day generally corresponding to the 1st, 2nd, 6th and 7th days of the hearing as follows, for total costs of $2,000.

58The two full weeks followed a general pattern of beginning days of each week marked with excessive, unnecessary and/or lengthy objections – and at times all three – which largely decreased as the week progressed, in part due to admonitions by me. For example, by the third day of the hearing, I was admonishing the parties about the tone, to sticking to the evidence, and that objections, in general, should be short, “objection, leading,” and that if I needed further explanation, I’d ask for it.

59To give a flavor, the first day involved substantial amount of time dealing with three motions, two of which the delay falls on Wawanesa and one of which both parties contributed. First, was the applicant’s pre-hearing request to add issues which Wawanesa argued against. After a significant amount of time had been expended on it, it was disclosed that Wawanesa agreed to this relief during a motion hearing several weeks prior. Wawanesa submitted that since it had not yet received a written order, it was not sure that that was still the case. I find that argument troubling as a key factor – a prior agreement – was not disclosed to the Tribunal in the written materials or at the outset of discussion of it at the hearing.

60Time was also spent on A.F.’s request to the exclude the reports of Wawanesa’s experts, which I addressed above and on the record. As for costs, A.F. flagged this issue ahead of the hearing in a written motion.

61I do not award costs for time spent on paring down the witness lists, and so I will only briefly address it. A.F. submits she advised at the case conference that her testimony would take excessive time. That may explain the 10-days given for a criterion 8 file. Regardless, it should have been clear to both parties that there was not ample time to call all the witnesses on their witness lists. Both parties should have contacted each other prior to the start to work out a practical hearing schedule of witnesses to be called by videoconference and those to be called by medical reports only without testimony, rather than just sending positional letters.

62In terms of the objections, I realize that there are many different styles of the degree to which counsel assert objections, but at many points this was significantly over the line and delayed the hearing with unnecessary time spent on objections, which heavily generated from Wawanesa. The main delay was that routine objections were often followed by long speeches, or following a ruling, Wawanesa’s counsel would keep arguing the objection. At times, some of Wawanesa’s counsel’s objections during A.F.’s testimony extended improperly into testifying (e.g., stating her testimony conflicts with documentary evidence), which should be reserved for cross-examination and submissions.

63Other points were unnecessary. For instance, Wawanesa’s counsel provided a dialogue that the opening statements are not evidence, asserted that my observations of the witness were irrelevant, apparently contending that only the doctors’ reports mattered, and objected to my asking question during direct examination unless he was permitted to ask questions at that point rather than having to wait until cross-examination. On a housekeeping issue, I mentioned the agreement to accommodate A.F.’s disability, while noting that the parties dispute the severity and causation. Counsel objected, and even after I asked for clarification, the nature of the object remains unclear. My comment was clearly not intended as a finding of fact, but contextual statement to reflect the reality of the delays in the testimony based on the A.F.’s requests during the hearing.

64During closings, A.F.’s counsel commented that Omega’s reports are the best and always accepted. Prior to an objection, I interjected, struck those comments, and advised closings should be limited to evidence in the record or caselaw.²⁸ Rather than accepting that the Tribunal was alive to the issue and addressed it, Wawanesa’s counsel used that as another opportunity to object beyond just saying it agrees and wants its own objection noted.

65While Wawanesa’s counsel submits that he was sustained on some objections, those were typically on points of little consequence. Still, to be clear, Wawanesa’s counsel did not raise his voice. His tone was professional. After a few admonitions, he did curtail the volume of objections and also tried to give A.F. more time to complete her answers, which must be noted. While less time could have been spent on it, counsel did agree to accommodate the witness.

66While A.F.’s counsel’s responses to the objections and requests to the Tribunal were generally appropriate, at two different points, he leveled inappropriate comments at Wawanesa’s counsel. The comments were inappropriate, should not have happened, and were rebuked during the hearing. However, they struck me as made out of frustration, were limited outbursts, and minor, and responsive to the incessant and unnecessary objections.

ORDER

67A.F. is not catastrophically impaired as defined by the Schedule (Issue 1). As A.F. advised that non-CAT limits have been exhausted, issues 2-22 are not addressed as moot. If I am incorrect that policy limits were not reached, the parties shall advise the Tribunal within 14 business days. A.F. is entitled to costs of $2,000.00 total, as set forth above.

Footnotes

1. 1Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10.
2. 2The parties’ motions about making witnesses available for cross-examination were rendered moot when they agreed to submit medical records in lieu of examination.
3. 3At the start of the hearing, the parties agreed that I mark the documents books rather than each exhibit. I did so on agreement that my decision would focus on the evidence the parties drew my attention to in the hearing, and that while I could look at the other evidence, I would generally only use it for context. The parties also agreed that as they choose not to call medical witnesses, they could direct me to relevant portions of the record during closing, which they did.
4. 4Omega Catastrophic Impairment Summary & Analysis Report, Ex. 1, Vol. 1, page 322.
5. 5Ex. 2, Tab 21, page 370 (PDF 398) and page 443 (PDF 472).
6. 6This finding relates more to reliability, as Dr. Ko notes that collision speed cannot always predict impairment.
7. 7Dr. Dory Becker records this visit as attending her physiotherapist. A.F. Hearing Brief, Vol. 1, page 354.
8. 8Ex. 2, pages 619-20 and 3658.
9. 9Sabadash v. State Farm et al., 2019 ONSC 1121 at paras. 31-40. The Court of Appeal refused leave to appeal. See also A.C. v Aviva Ins. CA, 2020 CanLII 103675 (ON LAT), at para 38.
10. 10For instance, Dr. Perry’s May 15, 2015 IE Neurology Report two years pre-accident, describes her current symptoms. (Ex, 2, Tab 48, page 5598, at 5602-03.); A March 15, 2018 Neuropsychological Assessment found an overall intact cognitive profile, but notes depression and her symptomatic headache and light and noise sensitivity, positing that A.F. is part of the 10-15% of patients that experience protracted recovery periods from a TBI. This report minimally mentions the July 2017 accident noting no loss of consciousness. It notes that functionally she is able to do the household cooking and shopping but tires easily. She manages her finances (Ex. 2, Tab 21, p. 303 (PDF 333)).
11. 11Prior to April 2016, the Schedule deemed a person CAT if they were a class 4 in any one of the domain areas. In other words, the standard became more difficult; A.F. falls between those standards.
12. 12For instance, Drs. Budisin and Wiseman’s May 14, 2015 IE Neuropsychology Report in the WSIB matter notes various concerns such as cognitive testing did not support an ongoing concussion issue, A.F. may not have responded accurately and may be exaggerating symptoms, and that she was almost completely better at summer’s end in 2014 but had symptoms immediately worsen when starting work. Still the report did not opine malingering, noting A.F. passed validity testing and likely suffers from somatization and emotional sequelae. (Ex. 2, Tab 48, pages 5573, 5580, 5589, 5591.)
13. 13Dr. Ranalli’s May 14, 2015 IE Neuro-Ophthalmology Report in the WSIB matter found the examination entirely normal, with “subjective photosensitivity, visual fatigue, unusually prolonged duration, improving over time.” He disagreed with Dr. Wareham’s analysis. (Ex. 2, Tab 48, pages 5593, 5595)
14. 14Ex. 1.1., 321-326 and 352.
15. 15See Dr. Wareham’s narrative to the March 2, 2020 OCF-18 for vision therapy (Issue 9), found at Ex. 1.2, page 424, 432. She notes that A.F. was involved in the July 25, 2017 accident, which “increased concussion symptoms again,” but other than those conclusory words, there is no factual support tying that increase to the accident, especially as the symptoms were worsening in April of 2017 almost three years after the football incident, but only two months before the subject accident.
16. 16Ex.1.1, p. 354.
17. 17Catastrophic Impairment Summary & Analysis Report, Ex. 1.1, p. 322, at page 323; The same quote appears in Dr. Hastings Physical Impairment Evaluation, Ex. 1.1, p. 352.
18. 18Physical Impairment Evaluation-OCF-19, Ex. 1.1. 346, at 351; Dr. Simon in this April 2020 Orthopaedic IE evaluation for an IRB similar opined that he didn’t find any objective findings, but A.F.’s non-orthopaedic concurrent diagnoses are influencing her musculoskeletal symptoms. Ex. 2, page 250.
19. 19Ex. 2, Tab 33, pages 2710-12.
20. 20See Shahla Kara OT Evaluation on December 12 & 13, 2019 notes self-reports of independence with all self-care activities, but diminished motivation, and sole responsibly for housekeeping (Ex. 1.1 at 384, 395); Dr. Becker reports independence with selfcare, but some limitations in other areas and records A.F.’s mother’s view that A.F. is independent and does not need any supervision for chores and ADLs, but pain and symptoms interfere. (Ex. 1.1. page 358 at p. 5 of the report and appendix); Dr. Simon’s April 6, 2020 IRB Evaluation notes A.F. reported that she is independent with respect to her personal care and basic activities and instrumental activities of daily living. She drives but sticks to short distance and avoids driving in bad weather. She bikes less and does not engage in “swimming, dance, skating and skiing.” (Ex. 2, p. 241 at 246.)
21. 21Scott Blad, Kinesiologist’s, June 5, 2019 Functional Abilities Evaluation notes A.F. reports being independent with personal care chores, and he opines on testing that she can perform all her personal care duties, but has some limitations with housekeeping. (Ex 1.1 p. 203, 206 and 211). Ms. Burton’s November 23, 2018 Report opines A.F. mobilizes well and does not generally struggle with transfers, mobility or access, but back and neck pain make carrying large objects for distances difficult and her neck pain makes repetitive turning motions challenging. (Ex. 2, page 361, 363); Dr. Gordon Ko, in a Physiatry IME at her request, opines A.F. does not require attendant care or help with personal care but has some limitations with home maintenance and recreational activities (Ex. 1.1, p. 142). See Marin Burton March 12, 2018 OT Functional Abilities Report noting independence in ADLs (Ex. 1.2, page 152).
22. 22Dr. Marshall’s Dec. 12, 2017 Amended Report, notes independence with ADLs. (Ex. 2, pages 311-316)
23. 23Dr. Miners’s May 29, 2019 Chiropractic IME Report notes that A.F. engages in recreational hobbies and pursuit, but with reduced tolerance. He notes she reports reduced physical and cognitive functional tolerance in relation to her activities of daily living. (Ex. 1.1, p. 184, at 193, 200)
24. 24Ex. 1.1, page 384, 397. It’s possible that Ms. Kara misunderstood A.F.
25. 25Ex. 2, Tab 21, page 303, 306.
26. 26Ex. 2, Tab 48, page 5489, 5492-94.
27. 27Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017)
28. 28I also permitted the parties to point out relevant reports or passages from reports in the document books, as the parties choose to not to call medical witnesses.