Citation: C.S. v. Travelers Insurance, 2023 ONLAT 20-014495/AABS

Licence Appeal Tribunal File Number: 20-014495/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:

C.S.

Applicant

and

Travelers Insurance

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake, Vice-Chair

APPEARANCES:

For the Applicant:

C.S. Brent Meadows, Counsel Sherry Teo, Legal Assistant

For the Respondent:

James Tonin, Claims Professional Linda Matthews, Counsel Saro Setrakian, Counsel

Court Reporter:

Maureen Biscak

Heard: Via videoconference on December 13-17 and 20, 2021, and February 1, 2022 followed by written closing submissions

OVERVIEW

1The applicant, C.S., was injured in an automobile accident on October 29, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule) from Travelers, the respondent.

2The applicant submitted an Application for Determination of Catastrophic Impairment Form (OCF-19) dated November 30, 2018 because she alleged that she sustained a catastrophic impairment (CAT) as a result of the accident. The respondent disagreed.

3As a result of the dispute between the parties, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal). A case conference was held, and the matter proceeded to a videoconference hearing followed by written closing submissions.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Has the applicant sustained a catastrophic impairment as defined by the Schedule?

(ii) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

PRELIMINARY ISSUE: Confidentiality order – initializing the decision

5On the Tribunal’s own motion, and on consent of both parties, I order that the applicant’s name be initialized in this decision.

6Normally, the Tribunal’s decisions include the full names of the parties to the proceeding, in accordance with the open court principle set out in the decision of Toronto Star v. AG Ontario (Toronto Star), 2018 ONSC 2586.

7As public access to tribunal proceedings is protected by s. 2(b) of the Canadian Charter of Rights and Freedoms, the Tribunal will only exceptionally restrict public access to the identity of parties by anonymizing or initializing their names in its decisions. To do so, the Tribunal must be satisfied that it is in the interest in safeguarding personal privacy in a particular case outweighs the public interest in including that information in the publicly accessible decision.

8Pursuant to s. 2(2) of the Tribunal Adjudicative Records Act, 2019 (TARA), the Tribunal may order that all or part of an adjudicative record be treated as confidential and not disclosed to the public if the tribunal determines that:

(i) Matters involving public security may be disclosed; or

(ii) Intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

9Rule 13.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (Rules), is consistent with TARA and permits the Tribunal to restrict public access to the adjudicative record on the same grounds.

10The test established by the Supreme Court of Canada for ordering publication bans provides further guidance when considering whether to override the principle that tribunal hearings should be open to the public. The test was recently recast by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25. In this decision, the Court held that a person seeking to limit the open court presumption must establish that:

(i) Court openness poses a serious risk to an important public interest;

(ii) The order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and

(iii) As a matter of proportionality, the benefits of the order outweigh its negative effects.

11In this matter, the issue of causation regarding the applicant’s psychological impairments arose for several reasons including being a survivor of adult intimate partner violence which included her attempted murder. I find that there is no less restrictive way of protecting the identity of the applicant as this decision contains identifiable information about the applicant, including where she resides and her former workplace. Given that the applicant continues to require protection from the person that committed intimate partner violence against her, full openness would pose a serious risk to the applicant’s safety. The benefits of initializing the decision to protect the applicant’s safety therefore outweighs the public interest in the openness of this proceeding, I order the applicant’s name be initialized in this decision.

RESULT

12I find that the applicant has failed to prove on a balance of probabilities that she sustained a catastrophic impairment as a result of the accident. As there are no benefits or costs owing in this matter, there is no basis upon which to grant an award under Regulation 664.

ANALYSIS

The applicant has failed to prove that she sustained a catastrophic impairment

13The applicant bears the onus of establishing, on the balance of probabilities, that she sustained a catastrophic impairment as a result of the accident as defined by the Schedule prior to the 2016 amendments.

14Section 2(1.1)2 of the current Schedule states that, for accidents that occurred between September 1, 2010 and June 1, 2016, the catastrophic impairment provisions of the relevant, historical version of the Schedule apply. Section 3(2)(f) of the relevant version of the Schedule defined a “catastrophic impairment” as an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (Guides), results in a class 4 (marked impairment) or class 5 (extreme impairment) due to a mental or behavioural disorder.

15At chapter 14, the Guides classify impairments according to how seriously they affect a person’s useful daily functioning in the following four functional domains: activities of daily living (ADLs); social functioning (SF); concentration, pace, and persistence (CPP); and adaptation (AD).¹ Further, impairments are also classified using the word descriptors on a five-category scale that ranges from no impairment to extreme impairment. These word descriptors are important because they assign meaning to each category.

16The following table from the Guides describes the four functional domains, the classes of impairment, and the verbal rating criteria for each class:

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

ADLs

No Impairment is noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some, but not all, useful functioning

Impairments levels significantly impede useful functioning

Impairment levels preclude useful functioning

SF

CPP

AD

17Pursuant to section 3(2)(f) of the Schedule prior to the 2016 amendments and Pastore v. Aviva Canada Inc., 2012 ONCA 642, a person is CAT if they are found to have one class 4 “marked” impairment or one class 5 “extreme” impairment that affects useful functioning in any one of the four functional domains due to mental or behavioural issues. Collectively, this is referred to as “Criterion 8,” which is the criterion that the applicant is relying upon for a designation of CAT.

18The parties agree that the applicant has sustained a moderate or class 3 impairment in all of the domains except in the domain of adaptation. It is the appellant’s position that she sustained a class 4, or a “marked,” impairment in the area of AD. The respondent disagrees. It submitted that the applicant’s psychological impairments were pre-existing and not caused by the accident. Alternatively, the respondent submitted that the applicant only sustained a class 3 “moderate” impairment in the AD domain.

19The AD domain refers to repeated failure to adapt to stressful circumstances and, in the face of such circumstances, individuals may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder. That is, the individual would decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.

20The Guides explain that stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers. Impairment in adaptation affects the ability to function across all activity domains, not only in work-like settings. Here, while there is no dispute that the applicant did not successfully return to her pre-accident employment with the [Employer] after the accident, a failure to return to one’s pre-accident employment is not on its own evidence of a “marked” impairment in the AD domain. Indeed, the Guides at page 295 state:

Adaptation is the ability to respond appropriately to changes in the work setting; to be aware of normal hazards and take appropriate precautions; to use public transportation and travel to and within unfamiliar places; to set realistic goals; and to make plans independently of others [emphasis in original].

21For the reasons that follow, I find that the applicant has failed to prove on a balance of probabilities that she suffered a class 4 “marked” impairment in the AD domain such that she suffered a catastrophic impairment under criterion 8 as a result of the accident.

The applicant’s CAT assessment reports are afforded limited weight

22To support her position, the applicant relied upon two Psychiatric Assessments completed by Dr. Zohar Waisman, psychiatrist. In Dr. Waisman’s first report dated November 30, 2018, Dr. Waisman diagnosed the applicant with a Somatic Symptom Disorder and a Major Depressive Disorder, and opined that the applicant had a class 4 (marked) impairment under the AD domain. In Dr. Waisman’s second report dated November 15, 2021, Dr. Waisman diagnosed the applicant with Somatic Symptom Disorder with Predominant Pain and Major Depressive Disorder, and maintained his impairment rating of a class 4 “marked” impairment under the AD domain.

23Dr. Waisman’s reports rely heavily upon the Occupational Therapy Assessment Reports by Sherry Mosher-Taillefer, occupational therapist, dated November 30, 2018 and November 15, 2021.

24As part of her November 30, 2018 report, Mosher-Taillefer conducted both a functional and situational assessment of the applicant which included a community outing of grocery shopping to complete specific tasks. Mosher-Taillefer observed that after 45 minutes of the outing, the applicant was “visibly fatigued and had trouble focusing on the questions.” Further, Mosher-Taillefer observed the applicant to be verbose, having tangential thoughts, and difficulty making simple decisions despite scoring well on all of the formal cognitive tests. The applicant also reported to Mosher-Taillefer that aside from seeing a friend once a month, she otherwise does not go out often but that she did volunteer for one month at her step-daughter’s school for 45 minutes, twice per week (which was later reduced to once per week due to pain, fatigue, and her hands seizing). The applicant also reported that she was able to drive at that time and was attempting to increase her driving time despite feeling anxious.

25As part of her November 15, 2021 assessment and report, Mosher-Taillefer did not observe the applicant in public. Nevertheless, the applicant reported to Mosher-Taillefer that she:

(i) May do errands if she feels up to it in the local area. She requires a list, and the place cannot be too crowded or have too much activity;

(ii) Frequently loses her train of thought and has some word-finding issues (although Mosher-Taillefer did not observe this complaint during the assessment);

(iii) Is able to operate a motor vehicle and feels safe to do so provided that the drive is local, the weather is good, and she is not too fatigued;

(iv) Has an inability to deal with confrontation or when someone disagrees with her opinion when at work or in public; and

(v) Naps in the afternoons due to poor sleep at night.

26Ultimately, Mosher-Taillefer reported that the applicant had a reduced capacity to sustain engagement in tasks, had a poor energy level, required many rest breaks and structure to activities, and that the applicant has “difficulty with multiple choices and easily becomes overwhelmed with simple tasks such as making her stepdaughter’s lunch.”

27I place limited weight on Dr. Waisman’s and Mosher-Taillefer’s reports and opinions for several reasons. First, I find that the applicant failed to report her actual level of function to all of the catastrophic impairment assessors including Dr. Waisman and Mosher-Taillefer. For example, the applicant testified that she prefers to “just drive in the neighbourhood” and that she was working on her driving with her treating psychologist, Dr. Stewart Madon, through exposure therapy beginning with an easy driving route. This testimony was consistent with her self-reporting in Dr. Waisman’s and Mosher-Taillefer’s reports.

28On cross-examination, however, the applicant confirmed that she drove independently from her home in Ottawa to Nova Scotia since the accident. The applicant confirmed that this was an approximately 20-hour drive that took her three days to complete, which included making multiple pre-planned stops and completing exercises at those stops provided to her by her occupational therapist. She stayed over at two hotels along the way. The applicant also confirmed that her level of function was such that she was able to drive herself half-way across the country.

29The applicant’s common-law spouse also testified at the hearing and confirmed that the applicant drove herself to Nova Scotia in 2019 or 2020, and that the trip took a lot of preparation. The applicant’s common-law spouse further confirmed that while her niece was supposed to drive with the applicant back home to Ottawa, this did not happen and, as a result, the applicant made the drive back to Ottawa by herself.

30Dr. Waisman testified that the applicant did not report her drive to Nova Scotia to him and Mosher-Taillefer also confirmed that she was unaware of this trip.

31The applicant additionally failed to report her involvement in a wedding ceremony to Dr. Waisman and to Mosher-Taillefer. The applicant’s common-law spouse testified that a wedding celebration was held in August 2016 in Nova Scotia for him and the applicant. However, due to the applicant’s common-law spouse inadvertently forgetting his divorce certificate, the two were never legally married. Nonetheless, the applicant’s common-law spouse testified that he and the applicant planned the wedding celebration together, which included a dinner and a dance attended by 30 to 50 family members.

32Second, I place little weight on Dr. Waisman’s and Mosher-Taillefer’s reports and opinions because Dr. Waisman strayed from his role as an expert and became an advocate for the applicant.

33When Dr. Waisman was asked about what he made of the wedding and the applicant’s drive to Nova Scotia, he said he could not reach a conclusion about those activities without discussing them with the applicant and having more context. Dr. Waisman further testified that it is not one behaviour or one trip that determines a certain level of impairment; however, it would have been helpful to him in arriving at his opinion on the applicant’s impairment level to have had a “full picture” from the applicant, which would include the drive to Nova Scotia and details of the wedding celebration. Further, Dr. Waisman was asked in cross-examination that if there is information missing from what was provided to him, whether such missing information could have changed his opinion. Dr. Waisman’s response was that, “it could have, or it could not have,” and that it depended on the facts or circumstances of what happened.

34In contrast, when Dr. Waisman was asked about references to the applicant’s interaction with the male other driver at the accident scene that were contained in Dr. Madon’s CNRs, Dr. Waisman testified that there was a mention that the applicant felt shaken by the actions of the male other driver at the accident and that this, “seemed to have rekindled some of her pre-accident post-traumatic experiences,” which may have caused her anxiety symptoms. Dr. Waisman provided this opinion despite confirming in his testimony that the applicant did not tell him about her experience with the male other driver at the accident scene. There is also no mention in Dr. Waisman’s reports about the applicant’s interaction with the male other driver at the accident scene either.

35Therefore, I find Dr. Waisman provided a subjective and unsupported opinion on the applicant’s interaction with the other driver at the accident despite this information not being included in his reports. In my view, this undermines his overall opinion because he refused to provide an objective opinion on the applicant’s function given her ability to drive to Nova Scotia and her ability to plan and participate in a wedding ceremony, both of which were also not included in his reports. Accordingly, I find that Dr. Waisman very much became an advocate for the applicant during the hearing and strayed from his duty to provide fair, objective, and non-partisan expert testimony to the Tribunal.

36Third, Dr. Waisman’s and Mosher-Taillefer’s reports are inconsistent with the totality of the evidence before me and are internally inconsistent. For example, the applicant’s common-law spouse testified that the applicant now travels by airplane to Nova Scotia to visit her family and has done so twice since the accident. According to the applicant’s common-law spouse, one trip was approximately five years ago and the other he described as “recent,” noting that it was just the applicant and her 12-year old step-daughter that made this trip. The level of the applicant’s function described in Dr. Waisman’s and Mosher-Taillefer’s reports—such as being overwhelmed with simple tasks like making her stepdaughter’s lunch—is not consistent with a person that is able to drive and fly from Ottawa to Nova Scotia or is able to co-plan and participate in a wedding.

37I find the applicant’s level of impairment as set out in Dr. Waisman’s and Mosher-Taillefer’s reports also conflicts with surveillance evidence of the applicant. Surveillance of the applicant was conducted on October 5, 8, 9, and 10, 2021. The surveillance showed the applicant driving a car multiple times, walking her dog multiple times per day, picking up dog waste, being out of the house on three of the four days and up to 3.5 hours at a time without any rest breaks, shopping at a Walmart Supercentre and Bath and Body Works (which included pushing a shopping cart, holding bags, and using a self-check out), conversing with other people including males, and using her cell phone. In cross-examination, the applicant confirmed that she was able to do the activities that she was observed doing in the surveillance, which all demonstrate a higher level of function than what was set out in Mosher-Taillefer’s reports, as discussed above in paragraphs [24] to [26].

38Dr. Waisman’s 2021 Assessment Report also has many copy-paste errors,² is internally inconsistent, and is inconsistent with portions of his testimony. Dr. Waisman reported in his 2021 Assessment Report that the applicant’s symptoms have caused “a severe deterioration and impairment in social, occupational and other important areas of functioning,” yet he only opines that the applicant has a class 3, or moderate, impairments in three of the four domains, indicating an impairment level of some, but not all, useful functioning. These assigned impairment levels are inconsistent with his opinion that the applicant has a “severe deterioration” in functioning. Further, despite opining that the applicant has a marked impairment in the AD domain, Dr. Waisman also confirmed in his testimony that:

(i) One of the factors reviewed under the domain of adaptation was whether a person can use public transportation and travel to unfamiliar places; and

(ii) The applicant demonstrated the ability to fly back and forth to Nova Scotia.

39The applicant was also assessed by Dr. Kehinde Aladetoyinbo, psychiatrist, and Janelle MacKinnon, occupational therapist, as part of the insurer’s examination assessments on the issue of CAT. Both Dr. Aladetoyinbo and MacKinnon testified that the applicant did not report her drive from Ottawa to Nova Scotia to them. However, MacKinnon agreed in her testimony that there was a discrepancy between the applicant being able to drive to Nova Scotia independently and the level of impairment she reported to her. Dr. Aladetoyinbo also testified that although he was not aware of the applicant’s drive to Nova Scotia, the applicant’s ability to undertake the drive informed him that:

(i) The applicant’s scheduled stops during her drive showed a degree of planning and executive functioning;

(ii) Driving was a good example of a “work-like” task as it required concentration, judgement, and functioning; and

(iii) From a CAT perspective, the applicant’s ability to make the drive to Nova Scotia and back showed no marked decomposition in a stressful situation.

40On the evidence before me, I place more weight on Dr. Aladetoyinbo’s and MacKinnon’s testimony regarding the level of function displayed by the applicant’s drive to Nova Scotia than on Dr. Waisman’s and Mosher-Taillefer’s reports. The applicant’s independent drive was not a “one-off” trip or behaviour, as described by Dr. Waisman, as the trip took three days to travel to Nova Scotia and an undisclosed number of days to travel home. There was no indication that the trip took longer than expected, or that the applicant did not adhere to the planned trip schedule, which is consistent with Dr. Aladetoyinbo’s testimony that the applicant’s drive to Nova Scotia showed the applicant’s ability to plan and execute her plans independently. Further, when the plans changed from having her niece travel with the applicant back home to the applicant having to make the return trip home alone, the applicant did not withdraw from the situation but rather adapted and completed the drive home alone.

41I also agree with Dr. Aladetoyinbo’s testimony that driving was a good example of a “work-like” task as this evidence is consistent with testimony given by Mosher-Taillefer before she was aware of the applicant’s independent drive to and from Nova Scotia. Mosher-Taillefer testified that driving a car is “a complex task,” and confirmed that the trip to Nova Scotia would take a lot of stamina, concentration, persistence, and pace. Mosher-Taillefer also agreed that such a drive is a difficult activity requiring organization for activities, such as booking hotel rooms, and that this multi-day trip would have been exhausting even for a person without functional limitations.

42For these reasons, I find that the applicant failed to demonstrate that she sustained a marked impairment in the AD Domain, as she clearly was able to independently complete the very complex task of driving from Ottawa to Halifax, she is able to fly to Nova Scotia while independently supervising her minor daughter, and participated, at some level, in planning her wedding ceremony which would involve making decisions, scheduling, completing tasks, and interacting with service providers and her family. I find that the applicant has not met her burden of proving on a balance of probabilities that she is significantly impeded from useful functioning in the AD domain.

Causation

43Although the respondent raised the issue of causation regarding the applicant’s psychological impairments, I do not need to decide on this issue as I have found that the applicant has failed to prove on a balance of probabilities that she suffered a catastrophic impairment as a result of the accident.

The applicant is not entitled to an Award

44Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

45As there are no payments of benefits or costs owing in dispute in this matter, there is no basis upon which to consider an award.

CONCLUSION

46For the reasons outlined above:

(i) I find that the applicant has failed to prove on a balance of probabilities that she suffered a catastrophic impairment pursuant to criterion 8 as a result of the accident;

(ii) There is no basis upon which to consider an award under Regulation 664 in this matter; and

(iii) This application is dismissed.

Footnotes

1. 1The full name for “Adaptation” is actually, “Deterioration or decomposition in work or work life setting.”
2. 2As an example, Dr. Waisman reported in the 2018 Assessment report that the applicant, “has been hospitalized twice for miscarriages, the most recent being one year prior,” which is correct based on the evidence before me. However, the same statement appears in Dr. Waisman’s second 2021 Assessment Report, that the applicant, “has been hospitalized twice for miscarriages, the most recent being one year prior,” which is incorrect and, rather, appears to have been a copy paste error from the first report.