Licence Appeal Tribunal File Number: 20-001934/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:
Ms. Ka Yee Chu
Applicant
and
Unica Insurance Inc.
Respondent
DECISION
ADJUDICATOR: Clive Forbes
APPEARANCES:
For the Applicant: Ms. Ka Yee Chu, Applicant Ashu Ismail, Counsel Joseph Campisi, Counsel
For the Respondent: Mary Ramkissoon, Adjuster Amanda Lennox, Counsel Nicole Dowling, Counsel
Court Reporter: Alyssa Scott
Heard by Videoconference: January 16 to 20; 23-24, 2023
BACKGROUND
1The applicant was involved in an automobile accident on November 25, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).
2The issues in dispute are a catastrophic impairment designation, cost of a functional ability evaluation, case management services, occupational therapy services, the cost of an attendant care assessment, a s.10 award pursuant to Reg. 664, and interest.
3The applicant’s position is that she is catastrophically impaired as a result of the accident and is entitled to the benefits claimed. The respondent’s position is that the applicant mischaracterized her true mental and physical state to the medical assessors and therefore she is not catastrophically impaired and not entitled to the issues in dispute. The respondent also submits that the maximum amount for medical and rehabilitation benefits for non-catastrophic impairment according to the Schedule have been exhausted.
ISSUES
4The following issues are in dispute:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to $1,750 for functional abilities evaluation/functional capacity evolution recommended by Scarborough Physio and Rehab Clinic in a treatment plan (OCF-18) denied on September 12, 2019?
iii. Is the applicant entitled to $11,088.93 for case management services recommended by Ann Krause and Associates in a treatment plan denied on October 28, 2019?
iv. Is the applicant entitled to $3,701.50 for occupational therapy services provided by Innovative Occupational Therapy in a treatment plan denied on March 17, 2021?
v. Is the applicant entitled to $2,200.00 for an attendant care assessment provided by Innovative Occupational Therapy in a treatment plan denied on Aril 17, 2021?
vi. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
5Issue [4] ii. above was withdrawn by the applicant at the hearing.
result
6The applicant does not meet the definition of a catastrophic impairment. As I found the applicant is not catastrophically impaired and the maximum amounts for medical and rehabilitation benefits for non-catastrophic impairments have been exhausted, no benefits are payable, no interest is payable, and an award is not appropriate.
PRELIMINARY PROCEDURAL ISSUES
Quashing of Summons to a Third-Party
7Mr. Brian LeDrew, a third-party in this proceeding, is the President and Co-Owner of HVE Healthcare Assessments Inc. (“HVE”). HVE is the company responsible for facilitating the s. 44 independent insurer’s examination (“IE”) catastrophic impairment (“CAT”) assessments. During the hearing, Mr. LeDrew submitted that the summons that was served on him on December 27, 2022, by the applicant should be quashed. Mr. LeDrew argued that the purported evidence sought is not necessary, appropriate, relevant, or proportional to the proceeding and it is an abuse of process.
8The applicant submitted that the respondent did not object to Mr. LeDrew being called as a witness and that the evidence sought on how the CAT reports were done and how the editing process works at HVE is necessary, appropriate, and relevant, and as such, the summons should not be quashed. The applicant also argued that there are draft CAT reports from HVE with edits that were submitted as part of its production request from the respondent and clarification is being sought about these edits.
9I agree with the applicant that the evidence sought about how the CAT reports were done and how the editing process works at HVE are necessary and relevant to the proceeding. In addition, there is no prejudice to Mr. LeDrew to provide evidence on how HVE’s CAT reports editing process works. Mr. LeDrew’s request to quash the summons was denied.
ANALYSIS
10I find that the applicant is not catastrophically impaired as defined in the Schedule for the following reasons.
11The applicant bears the onus to prove on a balance of probabilities that she is catastrophically impaired. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one. The criteria to establish CAT are found under s.3.1 of the Schedule. In this case the applicant claims, and must prove, that she has a “Marked” or Class 4 impairment in at least three of the four domains as outlined in the American Medical Association’s Guide to the Evaluation of Permanent Impairment 4th Edition, 1993 (“Guides”), at Chapter 14, due to a mental or behavioural disorder (“Criterion 8”). The four functional domains are: (1) activities of daily living; (2) social functioning; (3) concentration, persistence and pace and (4) deterioration or decomposition in work or work like settings (also referred to as adaptation).
12There is no dispute, and it is clear to me, that the applicant has suffered impairments as a result of the accident. However, the evidence suggests that some of the applicant’s impairments existed before the accident. The applicant was a pedestrian who was hit by a car and fractured her back and required surgery for her fractured lumbar spine. She had bruising and contusions to the scalp at the time of the accident. After the accident she was diagnosed with PTSD, major depression and anxiety. Her family physician testified that after the accident she was more anxious, on edge, had flashbacks, nightmares from the accident, was scared to fall asleep, and appeared to be socially withdrawn.
13The applicant submits that she has a Marked or Class 4 impairment in three of the four domains and therefore meets the CAT test pursuant to Criterion 8. The applicant submits she has a Marked impairment in domains 1, 3 and 4. I find that based on the testimony of the applicant, the testimony of her mother, and the medical and documentary evidence, that the applicant does not meet the test as set out in the Schedule.
14While the applicant may no longer be the same person she was prior to the accident and has some limitations and restrictions to her daily life that she did not previously have, the Guides provides that showing that you are restricted and limited in only some of the things you can do is not sufficient to meet the Schedule’s catastrophic impairment test. Rather, the Guides provides that in order to be CAT, one must demonstrate that their impairments significantly impede useful functioning. It is also important to accurately capture the applicant’s pre- and post-accident functions based on the totality of the medical and documentary evidence provided to determine the level of impairments for each of the four domains and whether these impairments, “significantly impede useful functioning.”
Activities of Daily Living (ADL)
15The Guides specify what needs to be considered for this domain. For example: Activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities. These activities must be judged by their independence, appropriateness, effectiveness and sustainability. The individual’s capability of initiating and participating in these activities independent of supervision or direction must be clearly defined and understood in the context of pre- and post-accident functional abilities. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
16With regard to her specific ADLs, the applicant testified that pre-accident she did not do the cooking, she helped out with washing the rice, put on the rice cooker and washed vegetables. She also mentioned that she rarely used the stove, was not very familiar with the stove and she had limited involvement in cleaning. She did lighter tasks such as cleaning her room and sweeping, she helped with shoveling light snow and she did not do her own laundry but helped sort the laundry. She also testified that she was not responsible for managing her own finances due to lots of mistakes, but, that she had a bank card which she could use. She shared that some of her leisure activities are swimming, going to the gym, library, reading and going on the computer, and identified three friends who were her classmates at Seneca who she saw while in class, approximately five years before the accident.
17In her s. 25 CAT assessment report dated February 11, 2019, Dr. Giselle Braganza, clinical psychologist, concluded that in consideration of the psychological contribution to the impairments within the activities of daily living domain, the applicant presents with a Class 4 Marked impairment. Dr. Braganza stated that the applicant was independent in personal care tasks prior to the accident and post-accident, she remains independent in grooming and feeding. However, she is dependent on others for hygiene, toileting, dressing and undressing. Dr. Braganza also highlighted that when the applicant was asked to prepare a frozen pizza, it turned out to be dangerous because she put it in the oven with the plastic wrap.
18In a s. 44 CAT report dated December 17, 2019, Dr. Velan Sivasubramanian, psychiatrist, stated that, during his assessment and from reviewing the available documents, in the area of activities of daily living, the applicant’s ability to engage in former chores at home appears to be primarily limited by her perception of pain. He also indicated that certainly the applicant appears to be socializing less than in the past, but it appears her friends were all students at Seneca college, where she attended before the accident, and she has historically had little contact with people outside of her immediate family otherwise. The applicant remains independent with her personal care and Dr. Sivasubramanian believes there is no more than a Class 2 mild impairment based on mental and behavioural disorders directly attributable to the accident.
19I agree with Dr. Sivasubramanian’s assessment because not much appears to have changed with the applicant’s pre- and post-accident ADLs. In my view the totality of the evidence doesn’t support Dr. Braganza’s position that the applicant presents with a Class 4 Marked impairment under this domain because of the psychological contribution to the impairments. My review of the medical and documentary evidence and the applicant’s own testimony does not support this claim.
20For example, the clinical notes and records of the applicant’s family physician Dr. Chao-Wen Xiao, include a visit dated February 23, 2017, indicating that according to the applicant’s mother, the applicant has been going to school all her life just to pass time, has no friends and has never had a job. During a visit dated April 3, 2017, it was noted by Dr. Xiao that the applicant has always been withdrawn. Also, a visit dated September 20, 2017, indicated that the applicant was independent with all ADLs and was walking in the park and going to the library. Another visit dated February 13, 2018, shows that she was swimming twice weekly and going to the gym once or twice per week.
21Dr. Xiao referred the applicant to Dr. Ashok Bhagat, general physician, for psychiatric assessment, and in Dr. Bhagat’s notes, dated April 11, 2017, he rendered the diagnoses of chronic post-traumatic stress disorder; major depressive disorder, severe; and social anxiety disorder. A follow-up note on May 23, 2017, indicates that the applicant was taking Wellbutrin and was feeling "better." Her sleep and eating habits had also improved.
22Dr. Bhagat, also noted on June 21, 2017, that the applicant reportedly felt good, denied having any nightmares anymore, was getting five to six hours of sleep, and wakes up from sleep and feels good. She also reported not having any issues with her appetite or energy level, she denied any problems with concentration or memory and did not have any crying spells. On August 23, 2017, Dr. Bhagat also noted that the applicant has some form of learning disorder. He also indicated that the applicant reported sleeping about four hours during the night, has interrupted sleep, she takes a daytime nap and generally she does not feel that tired. She also reported playing video games. Dr. Bhagat also noted that the applicant was pleasant and cheerful with no undue agitation of restlessness, and she was told to continue taking Wellbutrin XL 150 mg. I find Dr. Bhagat’s reports and notes persuasive because they show that with the appropriate medical treatment and intervention the applicant’s psychological impairment improved and her functional abilities were not significantly impeded.
23Also, given the absence of pre-accident clinical notes for the applicant, I assign more weight to the reports and notes of Dr. Hannah Rockman, clinical psychologist and neuropsychologist, because her clinical findings and diagnoses provide a more wholistic and accurate picture of the applicant’s pre-accident and post-accident conditions. The applicant was also seen for individual counselling by Dr. Rockman. In a psychological assessment report dated June 15, 2017, the applicant was diagnosed by Dr. Rockman with generalized anxiety disorder and a specific phobia (passenger anxiety). In her psychoeducational assessment report dated August 15, 2017, Dr. Rockman identified pre-accident difficulties with anxiety, avoidant behaviour, and social withdrawal. The report also indicated that the applicant had reportedly "always" been "withdrawn" and had had difficulties "making friends."
24For example, after high school, it was noted that the applicant attended Seneca College for ten years taking general business classes, as well as other various courses but never received a diploma or degree before the accident. It was also noted that post-accident, there was reportedly an increase in her withdrawal and a lack of motivation. Dr. Rockman indicated that a specific learning disability in reading and writing appears to be associated with the applicant’s verbal comprehension weakness. Dr. Rockman also noted that the clinical threshold on a screening measure for a diagnosis of autism spectrum disorder (“ASD”) for the applicant has been met and further testing is warranted.
25In addition, Dr. Rockman’s psychological treatment discharge report dated February 8, 2018, noted that the applicant completed twelve sessions of psychological counseling. Also, at that time of the discharge report the applicant was reportedly sleeping seven hours and there were no nightmares or flashbacks associated with the accident. Dr. Rockman also indicated that the applicant’s traffic-related anxiety (crossing the street or being a passenger in a car) was minimal and her score on the Beck Anxiety Index was minimal and subclinical on the Beck Depression Index. Dr. Rockman also noted that self-care strategies for pain management should continue to be strongly encouraged.
26The applicant also relies on the neuropsychological reports of Dr. Irina Valentin dated Sept 6, 2020, and Dr. Deborah Tang dated September 15, 2022, where they both diagnosed the applicant with PTSD and cognitive disorder NOS (not otherwise specified). Cognitive Disorder NOS as defined in the Mild Neurocognitive Disorder appendix of the DSM-IV-TR is cognitive dysfunction presumed to be due to the direct effect of a general medical condition like Parkinson Disease that does not meet criteria for dementia or delirium, affects at least two cognitive domains, and has a mild impact on functioning.
27Dr. Valentin also opined that it is likely that the applicant sustained a traumatic brain injury because of the accident and has sustained a permanent impairment of mental or psychological function as a result of the accident. However, there is no mention in Dr. Xiao’s records, (up to Jan 11, 2022, when the applicant was last seen) that the applicant has a cognitive disorder, traumatic brain injury or permanent impairment of mental or psychological function because of the accident. I assign less weight to the report of Dr. Valentin because in my view, the totality of the evidence does not support the position that the applicant suffered a traumatic brain injury or sustained a permanent impairment of mental or psychological function as a result of the accident, resulting in a Marked impairment in ADL.
28However, contrary to the applicant’s position, post-accident, it would appear little has changed, as the applicant testified that she is able to engage in some housekeeping activities including sorting laundry and light cleaning. She no longer helps with shoveling the snow. She has reported that she is independent in managing her personal care activities with less speed and still assists her parents with washing vegetables and using the rice cooker. She remains engaged in her leisure pursuits, including reading, watching tv, using the computer for up to four hours per day, going to the food court or to eat at restaurants with her parents. I am not convinced that the evidence supports the applicant’s position that she is significantly impeded in her ADLs because of the accident.
29Given all of the above, I am not persuaded that the applicant has shown a Class 4 Marked impairment under this domain to such a degree that her impairment levels “significantly impede useful functioning”. I assign more weight to Dr. Rockman’s findings and conclusions in her reports as it relates to the psychological contribution to the applicant’s impairments within the activities of daily living domain. These reports indicated that the applicant made significant improvements after treatment in her post-accident psychological impairment.
Social Functioning
30The factors to consider under this domain are: An individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others such as family members, friends, neighbours, grocery clerks, lenders, etc. Impaired social functioning may be demonstrated by history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. An individual’s ability to initiate social contact with others, communicate clearly with others and interact and actively participate in group activities are seen as strengths in social functioning.
31Taking into account the above, in her report dated February 11, 2019, Dr. Braganza finds the applicant to have a Class 3 level of impairment under social functioning. Also, in his report dated December 17, 2019, Dr. Sivasubramanian finds the applicant to have a Class 1 level of impairment under this domain. According to the Schedule, a Class 1 or Class 3 is not a Marked impairment. The testimony of the applicant does not support a Marked impairment either under this domain and it is consistent with the findings of both Dr. Braganza and Dr. Sivasubramanian.
32It is clear from the applicant and the applicant’s mother’s testimonies that the applicant had difficulties with socialization pre-accident and not much appears to have changed since the accident. For example, the applicant’s mother shared with Dr. Xiao and Dr. Rockman that pre-accident the applicant had always been withdrawn and had had difficulties making friend. The applicant also testified that she only had three friends as classmates from Seneca College, approximately five years before the accident. The applicant’s mother also testified that pre-accident the applicant was only close to a cousin who went back to Hong Kong after getting married.
33I also agree with Dr. Sivasubramanian and Dr. Rockman that the applicant’s pre-existing difficulties in socialization could be linked to her suspected premorbid pervasive development disorder, and that screening for autism spectrum disorder is warranted. Given the applicant’s and her mother’s testimonies and the evidence, I find that the applicant is not significantly impeded in her social functioning as a result of the accident, because these issues pre-dated the accident.
34Having found that the applicant does not have a class 4 impairment in at least two of the four domains, this is enough to find her not to be catastrophically impaired under criterion 8. However, for completeness, I shall continue with the last two domains.
Concentration, Persistence and Pace (CPP)
35The factors to consider under this domain are: Concentration, persistence and pace (“CPP”) are “task completion” and refer to the ability to sustain focussed attention long enough to permit the timely completion of tasks commonly found in activities of daily living or work settings. Deficiencies in CPP are best noted from previous work attempts or from observations in work like settings. Strengths and weaknesses in mental concentration may be described in terms of frequency of errors, the time it takes to complete the task and the extent to which assistance is required to complete the task.
36In her report, Dr. Braganza noted that, in consideration of the psychological contribution to impairment, she finds the applicant to have a Class 4 or a Marked impairment under this domain. Dr. Braganza also indicated that the applicant described difficulties focusing, sustaining attention and slower information processing speed. The applicant also reported having difficulty watching television programs or movies due to distraction as a result of pain, but reports there has been no change in reading. Dr. Braganza reported that she was also observed to take breaks and appeared fatigued 60-90 minutes into assigned tasks, she had difficulties with task initiation and tasks that required her to shift attention, and she worked at a slower pace.
37Dr. Sivasubramanian finds the applicant to have a Class 2 impairment under this domain. He noted that during his interview with the applicant she was somewhat simplistic in her testimony, but he did not believe she suffered from a gross thought disorder. He also indicated that the applicant reported that she enjoys reading books and watching the news on television. The applicant also acknowledged being somewhat more forgetful than she had been in the past.
38In my view, the evidence does not support Dr. Braganza’s opinion that the applicant has an impairment under this domain that significantly impedes useful functioning. The evidence is clear that before the accident the applicant spent 13 years at Seneca College for a two-year diploma and failed the majority of the classes attempted; was first suspected to have a learning disability by Dr. Xiao and was later diagnosed by Dr. Rockman with a specific learning disability in reading and writing associated with verbal comprehension weakness. Dr. Rockman also believe that a diagnosis of ASD is warranted. Against these facts, I find it unlikely that any of applicant’s deficit in CPP is attributable to the accident since her pre-accident history reveals a similar struggle.
39Therefore, any assessment of the applicant under this domain must be done in the context of the applicant’s pre- and post-accident functional abilities. I am not convinced based on the evidence and the testimonies of the applicant and her mother that there has been a significant change between the applicant’s pre- and post-accident ability to sustain focussed attention long enough to permit the timely completion of common tasks and that this change is a result of the accident. She may be slower in completing certain tasks like reading or making a sandwich for herself, but I am not persuaded that she has an impairment level that significantly impedes useful functioning as a result of the accident.
Adaptation
40The factors to consider under this domain are: Deterioration or decompensation in work or work like settings (also referred to as adaptation) refers to repeated failure to adapt to stressful circumstances. Under stressful circumstances an individual may withdraw from the situation or experience exacerbation signs and symptoms of a mental disorder. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks and interacting with supervisors and peers.
41Dr. Braganza opines that the applicant has a Class 4 or a Marked impairment under this domain because the applicant was observed to display a deteriorated adaptability when asked to obtain information with respect to products and operating hours of various stores in the concourse of a building. She was observed to avoid talking to others and prematurely withdrew her engagement in the task. The applicant disclosed that she was overwhelmed by the task and appeared frustrated. The applicant’s treating psychologist Dr. Rockman had identified that prior to the accident she had difficulties with anxiety, avoidant behaviour and was socially withdrawn. Therefore, I am not surprised that the applicant’s response to the adaptability task is consistent with Dr. Rockman’s findings.
42Dr. Sivasubramanian finds the applicant to have a Class 1 impairment under this domain and noted that she was somewhat simplistic during his interview; had poor eye contact and was somewhat disheveled in appearance. However, he mentioned that many of these difficulties were pre-existing as a function of her suspected premorbid pervasive developmental disorder.
43I am not persuaded by Dr. Braganza’s opinion under this domain. The applicant’s own testimony is that she remains relatively independent with her personal care but needs assistance from her mother when bathing and that she continues to attend to a number of household chores and responsibility. I am not convinced that the applicant’s response when faced with stressful circumstances is substantially different post-accident than it was pre-accident given the pre-existing medical findings of Dr. Rockman and Dr. Sivasubramanian.
44As a result of the above, I find that the applicant has not met the test under criterion 8 that she has three Class 4 or Marked impairments and therefore I find that the applicant is not catastrophically impaired as defined under the Schedule.
45Given my finding, as the maximum amount for medical and rehabilitation benefits for non-catastrophic impairments have been exhausted, it follows that the applicant is not entitled to the remaining benefits in dispute. Since there are no benefits payable, there is no interest payable either.
Award
46The applicant also sought an award under s. 10 of Regulation 664, submitting that the respondent has deliberately ignored the medical evidence supporting the determination of a catastrophic impairment. Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits.
47I find an award is not appropriate. As the applicant has not demonstrated that she is catastrophically impaired under Criterion 8, and no benefits are overdue, it follows that the Tribunal cannot award up to 50% of zero. In any event, catastrophic impairment is a designation and not a benefit and the respondent has provided the applicant with the $65,000.00 maximum limit for medical and rehabilitation benefits for non-catastrophic impairments.
CONCLUSION
48The applicant does not meet the definition of a catastrophic impairment.
49As the applicant is not deemed to be catastrophically impaired and the maximum amount for medical and rehabilitation benefits for non-catastrophic impairment have been exhausted, no benefits are payable.
50It follows that the respondent cannot be found to have unreasonably withheld or delayed payment of the benefits pursuant to section 10 of Regulation 664. Thus, no award is payable in that regard.
51Finally, given that there is no overdue payment of benefits, the applicant is not entitled to any interest pursuant to s. 51 of the Schedule.
52The application is dismissed.
Released: February 28, 2023
Clive Forbes
Adjudicator