Licence Appeal Tribunal File Number: 20-000264/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:
Hamad Khalaf
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Hamad Khalaf, Applicant
Mark Stoiko, Counsel
Purva Vaidya, Counsel
For the Respondent:
Wayne Williams, Adjuster
Linda Matthews, Counsel
Interpreter:
Yasir Mahagoub, Arabic Language
Court Reporter:
Maureen Biscak Nimigan Mihailovich, Reporting Inc.
HEARD: by Videoconference:
December 6, 7, 8, 9, 12, 13 and 14, 2022
BACKGROUND
1Kalaf Hamad (the “applicant”) was involved in an automobile accident on October 19, 2016, and sought benefits from Aviva General Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied certain benefits by the respondent and applied for dispute resolution to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). Specifically, it denied that the applicant’s accident-related impairments met the definition of catastrophic (“CAT”) impairment based on a mental and behavioural disorder under the Schedule. The respondent conducted insurer examinations (“IEs”) and determined that the applicant’s accident-related impairments did not meet the definition of CAT.
2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to a seven-day videoconference hearing. On behalf of the applicant, I heard the testimony of the applicant, the applicant’s daughter, Dr. Stephenson, family doctor, Dr. Liu, psychiatrist, Dr. Pilowsky, psychologist, Nazila Isgandarova, social worker, Guyedin Aydin, psychotherapist and Dr. Paton, chiropractor. On behalf of the respondent, I heard the testimony of three investigators from Larek Investigation: Maja Dubroja, Ryan Siewart and Jason Williams and CAT IE assessor Dr. Sivasubramanian, psychiatrist.
ISSUES IN DISPUTE[^1]
3I have been asked to decide the following issues:
Has the applicant sustained a CAT impairment as defined by the Schedule?
Is the respondent entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, (Effective February 7, 2019 (“Rules”)?
RESULT
4After considering both parties submissions and all of the evidence I find:
The applicant did not sustain a CAT impairment as a result of the accident.
The respondent is not entitled to costs pursuant to Rule 19.
Has the applicant sustained a CAT impairment as defined by the Schedule?
5On October 19, 2016, the applicant was involved in an automobile accident, when his was driving through an intersection and was hit head on by a car making a left-hand turn. The air bags deployed. The applicant was then involved in a physical altercation with the other driver. Police and ambulance attended the scene and the applicant was taken to the hospital. He was later charged with assault. The outcome of those charges is unknown. He followed up with his family doctor who referred him to physiotherapy and counselling.
6On December 13, 2021, the applicant submitted an application for a CAT determination under section 3(1)(8) of the Schedule (“Criterion 8”) based on a mental and behavioural impairment. These impairments are assessed under Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, Ch.14.7: Mental and Behavioural Disorders. (“Guides”). Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides sets out the four spheres of functioning and the levels of impairment as represented in the chart below.
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
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
Social Functioning
Concentration, Persistence and Pace
Adaptation (Deterioration in a work-like setting)
7In order to meet the threshold for a CAT impairment under Criterion 8, an individual must have sustained a marked (class 4) or extreme (class 5) impairment as a result of the accident in three of the four spheres of functioning due to a mental and behavioural disorder.
8The applicant relies on the CAT reports of Julian Amchislavsky, occupational therapist (“OT”) and Dr. Liu who determined that he suffers a marked impairment under all four spheres of functioning. Dr. Liu diagnosed him with Somatic Symptom Disorder, with predominant pain; Major Depressive Disorder, recurrent, severe; Post-Traumatic Stress Disorder; Generalized Anxiety Disorder; Panic Disorder without Agoraphobia and Insomnia Disorder.
9The respondent relies on the CAT reports of Shirley Szilvasy, OT and Dr. Sivasubramanian. This psychiatrist diagnosed the applicant with Major Depressive Disorder; Somatic Symptom Disorder; and Post Traumatic Stress Disorder and opined that these were likely pre-existing but were exacerbated by the subject accident. In Dr. Sivasubramanian’s initial assessment he determined that the applicant had a marked impairment in activities of daily living and concentration persistence and pace and a moderate impairment in social functioning and adaptation. He authored an addendum report after reviewing surveillance and additional medical records and recanted his initial opinion. In the addendum report Dr. Sivasubramanian opined that, at most, the applicant has a mild impairment under all spheres as a result of any accident-related impairments.
10This matter is complicated by the fact that the applicant had a significant pre-accident medical history. The respondent argues that the accident did not cause the applicant’s physical or the psychological impairments that form the basis for his application for a CAT determination. It maintains that pre-accident he was completely disabled from both a physical and psychological perspective and was very functionally limited as a result. Further, it contends that since he was involved in a physical altercation immediately following the accident that it was the fight that caused his injuries – not the accident. Further, it posits that the applicant was involved in a second automobile accident on April 27, 2021, and that the applicant reported to assessors that he was fully functioning and in good health prior to this accident. Finally, it argues that the applicant is not credible and his self-reports about his pre- and post-accident health and functional limitations cannot be relied upon.
11The applicant argues that the accident was the cause of his physical and psychological impairments. Further, if he had any pre-existing health issues the accident made them worse and resulted in a decrease in function. Therefore, before I determine whether or not the applicant meets the threshold for CAT under Criterion 8, I will first address the issue of causation.
ANALYSIS
Did the accident cause the applicant’s impairments?
12I do not find that the accident caused the applicant’s psychological impairment or resulted in the functional limitations which form the basis for his application for a CAT determination.
13It is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident he would not have suffered the impairments which form the basis for his application for CAT status. The Court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment but a necessary cause. The Court further instructs the decision maker to conduct a robust analysis given the unique circumstances of the case at hand.
14In analyzing causation, it is necessary to compare the applicant’s pre- and post-accident life to determine to what extent any accident-related impairment affected his ability to function. The applicant testified that prior to the accident, he was in reasonably good health with the exception that he had high cholesterol, hypertension, and prostate issues. Dr. Stephenson also testified that the applicant’s health issues were average for a person of his age. The applicant provided the following testimony regarding his pre-accident life and activities:
a) He and his family came to Canada in 2015 as refugees from Iraq and he was unemployed.
b) In Iraq, he was a judge for over 30 years and was in the process of taking English as a Second Language (“ESL”) classes and wanted to get his legal credentials to practice law in Canada.
c) He was physically active and enjoyed playing soccer, swimming, and going to the gym.
d) He enjoyed travelling and going on trips to Niagara Falls and Montreal.
e) He was social and would regularly meet friends for coffee and had a positive relationship with his wife and children.
f) He was independent in carrying out his housekeeping and home maintenance task such as cleaning the house, cooking and barbequing, snow removal, gardening, and lawn care.
g) He was independent with personal care tasks.
h) He was independent with driving and did not have any issues with mobility or accessing the community.
15The applicant testified that post-accident he has not been able to participate in any of the above activities because of his accident-related impairments. He no longer takes ESL classes, is unable to carry out his housekeeping and home maintenance tasks or personal care. Further, he is socially withdrawn, irritable and angry which has resulted in the breakdown of his marriage and relationships with his children.
16I find the applicant’s testimony about his pre-accident health and function was completely undermined by the medical record before me. The clinical notes and records (“CNRs”) of Dr. Stephenson and Asmaa Cober, social worker from one -year pre- accident support that he had very significant physical and psychological impairments and limited function. The CNRs reflect that prior to coming to Canada, he had experienced significant trauma while in Iraq as the records refer to him being kidnapped and tortured by a militia group for an eleven-month period. Further, he had lost various family members to the tragedies of war while a refugee in Syria and had not worked for several years prior to coming to Canada.
17Of importance, two-months prior to the accident, the applicant applied for benefits through the Ontario Disability Support Program (“ODSP”), which were approved two-weeks prior to the accident. The ODSP application supports that he had been diagnosed with PTSD, depression and anxiety and was taking medication for same. He also suffered from nightmares, insomnia, and flashbacks. His pre-accident physical issues included urinary incontinence, hyperthyroidism, chest pain, recurrent joint pain, hypertension, chronic back pain radiating to his legs, tinnitus, problems with dizziness resulting in frequent falls and plantar fasciitis.
18I do not agree with Dr. Stephenson’s opinion that the applicant’s pre-accident health was average for a person of his age. Dr. Stephenson authored a letter dated September 17, 2017, in which he opined that the applicant suffered from back pain, jaw pain, left wrist pain, fractured ribs, right finger pain and chronic tinnitus as a result of the accident. Further, the accident exacerbated the applicant’s depression and anxiety, tinnitus and increased his dizziness resulting in more falls. During cross-examination, Dr. Stephenson was not able to distinguish between the injuries sustained in the accident from the physical altercation which happened afterwards. I find Dr. Stephenson’s opinion regarding causation and accident-related diagnosis little weight. Further, the doctor agreed that the applicant’s reports about his pre-accident function were not accurate as he was not capable of playing soccer. For these reasons, I give Dr. Stephenson’s opinion regarding causation and accident-related diagnosis little weight. Further, the ODSP application supports that the applicant had the following pre-accident functional limitations.
a) He could not participate in normal social interactions or tolerate normal stress of the workplace.
b) He could not attend to a schedule because of issues with memory.
c) He could not participate in sustained physical exertion.
d) He could not walk up two flights of stairs or two blocks without rest.
e) He had moderate and severe restrictions in his ability to sleep, concentrate, behavioural control, language processing, and issues with memory due to PTSD and depression.
f) He required assistance from his wife and daughter regarding self-care including bathing and dressing, administering medication, feeding and finances.
19The above functional limitations contradict the applicant’s testimony and self-reports to assessors regarding his pre-accident function. Overall, I did not find the applicant or his daughter to be credible witnesses, which I will address now.
20During cross-examination when the applicant was questioned about his pre-accident health issues or questions about the inconsistencies in the records he answered “I don’t know” or “I don’t remember” to almost every question. I find the applicant’s lack of recall selective as he was able to answer in-chief questions and detail the many pre-accident activities he engaged in before the accident such as playing soccer, going swimming, and travelling. While I understand a person’s memory is not perfect, I find the timing and selection of the applicant’s lack of recall disconcerting. This was his opportunity to provide an explanation for the numerous inconsistencies in the evidentiary record which was important where causation is at the crux of the dispute. I also did not find his daughter’s testimony helpful as it was vague and inconsistent with the medical record.
21The applicant and his daughter’s credibility was also diminished with their response to the surveillance evidence. The applicant was showed a surveillance video which depicted him washing a vehicle owned by him and driving to a barber shop for a hair cut. He denied that it was him in the video and claimed that it was his brother. According to various reports and information in the CNRs throughout this claim the applicant reported having three brothers: two brothers were killed in the Iraq war and one passed away from cancer prior to the date the surveillance was taken. Further, he reported to all assessors that all of his family members lived in the Middle East. His daughter was also asked who was in the video and she said it was not her father – “maybe it was her uncle”. I do not find either of their responses convincing. After viewing the surveillance and considering the many other inconsistencies in the evidence, I am convinced on a balance of probabilities that the person in the video is the applicant.
22It is important to acknowledge that out of the six days of surveillance minimal video footage was actually taken. However, the applicant and his daughter’s dishonesty in response to it calls into question the reliability of all of the applicant’s self-reports about his accident-related impairments and resulting functional limitations. The surveillance also contradicts the applicant’s self-reports to assessors about his post-accident functional limitations as it shows him being mobile, squatting and independently driving and accessing the community. It also contradicted his testimony about the fact that he is no longer able to go to the barber – the barber now does home visits. I do not find that likely.
23In addition, also problematic to the applicant’s case is the fact that Dr. Liu did not review important pre- and post-accident CNRs and reports in conducting his CAT assessment. Dr. Liu acknowledged during cross-examination that he did not review all of Dr. Stephenson’s CNRs, the ODSP file, IE assessments or any records related to the April 2021 accident (which occurred 8 months prior to his assessment). Furthermore, Dr. Liu heavily relied on the OT report of Mr. Amchislavsky which was done two years prior. When asked about the relevance of these records Dr. Liu agreed that they would impact his opinion regarding the applicant’s impairment ratings under the four spheres of functioning. Dr. Liu conceded that the fact that he did not review these records renders his opinion inaccurate.
24Dr. Liu also accepted that the applicant’s self-reports to Dr. Pilowksy and Dr. Dessouki regarding his function prior to the 2021 accident would preclude a marked impairment rating as a result of the subject accident. The applicant reported to Dr. Pilowsky and Dr. Dessouki that he was going grocery shopping, picking his kids up from school and meeting friends for coffee prior to the 2021 accident. Dr. Sivasubramanian also authored a report for the 2021 accident and the applicant reported being fully functional in his personal care and housekeeping prior to that accident. Since Dr. Liu recanted his opinion, I conclude that the applicant did not sustain a marked impairment under any of the four spheres of function as a result of the accident.
25In addition, I do not find the testimony or reports of Dr. Pilowsky or Ms. Isgandarova helpful as they did not review the ODSP file and were not fully aware of the applicant’s pre-accident health or function. Dr. Pilowsky acknowledged during cross-examination that the applicant’s self-reports to her were inconsistent with the medical records. Furthermore, the applicant did not call Dr. Pilowsky as an expert witness. I am perplexed about what weight the applicant expected to be given to Dr. Pilowsky’s opinion. Consequently, I have given little weight to Dr. Pilowsky’s opinion.
26The applicant submitted various statements of law which noted case law in support of his position on causation which I do not find persuasive. The decision makers in those decisions do make the same findings on credibility as I have in this case. Further, the medical experts in those decisions did not recant their opinions regarding the insured person’s disability and function.
27For all of the above-noted reasons, the applicant has not met his onus in proving on a balance of probabilities that “but for” the accident he would have sustained a psychological impairment and resulting functional limitations. Therefore, the test for causation has not been met. Nor do I find that the applicant’s CAT report supports he sustained a CAT impairment. As a result, I do not find it necessary to address the findings of the respondent’s assessors.
Is the respondent entitled to costs pursuant to Rule 19?
28The respondent is not entitled to costs.
29Rule 19.1 provides that a party may request costs of the proceeding, if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.
30The respondent argues that costs are appropriate in this case as the applicant a) brought a weak case to a hearing resulting in significant expense; b) he did not call many of the witnesses on his witness list and called witnesses that were not relevant to the issues in dispute resulting in unnecessary costs and c) he and his daughter deliberately mislead the Tribunal by lying about it not being him in the surveillance video.
31The purpose of Rule 19.1 is to deter conduct by parties that is unreasonable, frivolous, vexatious, or in bad faith. This is a high bar for conduct to attract a cost award and is an exceptional remedy. For the following reasons, I find the threshold has not been met.
32Rule 19.5 sets out the powers of the Tribunal in deciding whether to order costs and the amount of costs. The Tribunal shall consider all relevant factors including:
(i) The seriousness of the misconduct;
(ii) Whether the conduct was in breach of a direction or order issued by the Tribunal;
(iii) Whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process;
(iv) Prejudice to other parties; and
(v) The potential impact an order for costs would have on individuals accessing the Tribunal system.
33In considering the grounds brought forth for costs I do not find the fact that the applicant brought a weak case to a hearing meets the threshold for costs. Costs are not meant to be punitive. The case law establishes that an order for costs is not meant to punish the unsuccessful party as to do so would be a barrier to other individuals accessing the Tribunal’s system. However, at the same time individuals accessing the Tribunal’s system need to be reassured that the Tribunal can maintain its own process and that that process will be respected.
34In addition, the respondent has failed to convince me that the fact that the applicant did not call many of the witnesses listed in the Tribunal’s case conference report and order warrants costs. Although I agree that a few of the witnesses called by the applicant were not helpful I do not find this is a reason to award costs.
35Finally, I am not convinced that the fact that I did not find the applicant and his daughter’s testimony regarding the surveillance evidence persuasive meets the high threshold for costs. The Tribunal routinely makes findings regarding credibility and costs are not awarded for this conduct. As highlighted above, the threshold for costs is a high one. Overall, I find the respondent’s submissions on the cost issue insufficient as it did not submit any case law in support of its position or make any submissions regarding the quantum of costs being sought. For the above-noted reasons, the respondent did not meet its onus in proving that an award of costs is appropriate in this case.
ORDER
[36] For all of the above-noted reasons, I find:
The applicant has not established that but for the accident he would not have the psychological impairments he puts forth as the basis for his application for a CAT determination. I do not find the applicant sustained a CAT impairment as a result of the accident.
The application is dismissed.
The respondent is not entitled to costs pursuant to Rule 19.
Released: February 27, 2023
Rebecca Hines
Adjudicator