21-001035/AABS

Licence Appeal Tribunal File Number: 21-001035/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:

Amritpal Kaur

Applicant

and

Northbridge General Insurance Company

Respondent

DECISION

VICE-CHAIR:

Tyler Moore

APPEARANCES:

For the Applicant:

Amritpal Kaur, Applicant

Sandy Williams, Counsel Marco Bellissimo, Articling Student

For the Respondent:

Lianne Birrell, Adjuster

Daniel M Himelfarb, Counsel Nigel Crowe, Associate Counsel

Punjabi Interpreter:

Arshad Hashmi

Court Reporters:

Taylor Boden, Bruce Porter, Daminee Salahuddin, Nikita Ivachtchenko

HEARD: by Videoconference:

October 3, 4, 6, 7, 12, 13, 2022 & January 23, 24, 2023

OVERVIEW

1The applicant was involved in an automobile accident on January 28, 2018, and sought benefits 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, Northbridge General Insurance, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2The applicant submitted an Application for Determination of Catastrophic Impairment Form (“OCF-19”) dated January 14, 2020, alleging that she sustained a catastrophic (“CAT”) impairment under criteria 7 and 8 of the Schedule as a result of the accident. The OCF-19 was completed by Dr. Jihad Abouali, orthopaedic surgeon.

3The respondent denied that the applicant sustained a CAT impairment because of the accident. They also denied certain benefits that the applicant sought, including attendant care benefits, the cost of catastrophic assessments, assistive devices, out-of-pocket expenses, physiotherapy treatment, and psychological treatment.

BACKGROUND

4The applicant was struck by an oncoming vehicle while crossing a street as a pedestrian on January 28, 2018. She sustained displaced left leg/ankle fractures that required surgical correction and then revision. She was hospitalized for thirteen days immediately after the accident. The applicant submits that as a direct result of the accident, she suffers from chronic pain, fibromyalgia, depression, and anxiety.

Preliminary PROCEDURAL ISSUES

5The respondent sought to exclude the applicant’s lay witnesses from testifying at the hearing in accordance with Rule 9 of the Tribunal’s Common Rules. It submitted that the applicant failed to provide their contact information and a brief synopsis of what each lay witness would be testifying about. The applicant submitted correctly that Rule 9 does not require the witness contact information to be provided. Regardless, the applicant did provide the witness contact information and the respondent attempted to contact them prior to the hearing. The witnesses are not obligated to co-operate with the respondent, and the lay witnesses were allowed to testify. Their testimony has gone to weight.

6The respondent also sought to exclude Dr. Kiraly’s CAT psychiatric rebuttal report because it was only provided two weeks prior to the hearing. It also submitted that the report was dated August 22, 2022 but was not served until September 15, 2022. The applicant submitted that the report was shared the date it was received and the report could not have been obtained earlier because Dr. Kiraly was not available to re-assess the applicant until August 2022. I allowed Dr. Kiraly’s rebuttal report for consideration. I was satisfied with the applicant’s explanation for the delay, and I accept that the report was shared with the respondent as soon as possible once it was made available.

7The applicant sought to have the respondent’s supplemental brief excluded. It was filed with the Tribunal at the start of the hearing. The brief in question contained surveillance footage and several curriculum vitae. According to the respondent, the surveillance footage was shared with the applicant in an exchange of documents on July 1, 2022. I find that there is a difference, however, between a document exchange for the purpose of settlement discussions versus a document exchange for the purpose of preparing for a hearing. I accept that allowing the document at such a late stage would prejudice the applicant because they would not have had the opportunity to thoroughly review and comment on the additional documents. The respondent was advised that they could rely on surveillance footage and reports already contained in the applicant’s document brief, and any surveillance footage previously filed with the Tribunal. The respondent’s supplemental brief was excluded from consideration.

ISSUES

8The following issues are in dispute:

a. Has the applicant sustained a catastrophic impairment pursuant to the Schedule?

b. Is the applicant entitled to attendant care benefits of $3,999.00 per month from a July 27, 2021 invoice for services rendered July 6^th and 7^th?

c. Is the applicant entitled to $6,042.01 for physiotherapy services, proposed by Dr. Gill in a treatment plan/OCF-18 (“plan”) that was denied on June 4, 2018?

d. Is the applicant entitled to $3,727.75 for physiotherapy services, proposed by Dr. Shah in a plan that was denied on May 6, 2019?

e. Is the applicant entitled to $4,613.45 for psychological services, proposed by Dr. Sharma in a plan that was denied on April 9, 2019?

f. Is the applicant entitled to $3,726.31 for assistive devices, proposed by Orthopaedic Rehabilitation Institute Inc. in a plan that was denied on June 12, 2018?

g. Is the applicant entitled to $2,724.42 for assistive devices, proposed by Orthopaedic Rehabilitation Institute Inc. in a plan that was denied on April 23, 2018?

h. Is the applicant entitled to $2,376.70 for assistive devices, proposed by Orthopaedic Rehabilitation Institute Inc. in a plan that was denied on April 23, 2018?

i. Is the applicant entitled to $4,207.12 for physiotherapy services, proposed by Orthopaedic Rehabilitation Institute Inc. in a plan that was denied on July 31, 2020?

j. Is the applicant entitled to $2,021.94 for an attendant care assessment, proposed by Orthopaedic Rehabilitation Institute Inc. in a plan that was denied on April 10, 2018?

k. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Dr. Sharma in a plan that was denied on December 4, 2018?

l. Is the applicant entitled to $17,350.00 for a catastrophic determination assessment, proposed by East York Physiotherapy and Orthopaedic Rehab Clinic in a plan that was denied on September 3, 2020?

m. Is the applicant entitled to $200.00 for a long air cast that was denied by the respondent on June 28, 2018?

n. Is the applicant entitled to $3,854.55 for services rendered by Dr. Wasserstein, proposed in an invoice that was denied on May 8, 2018?

o. Is the applicant entitled to $387.94 for out-of-pocket expenses that was denied by the respondent on April 25, 2019?

p. Is the applicant entitled to $382.51 for out-of-pocket expenses that was denied by the respondent on May 17, 2018?

q. Is the applicant entitled to $1,131.95 for out-of-pocket expenses that was denied by the respondent on October 4, 2019?

r. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

s. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

9The applicant has not sustained a catastrophic impairment as defined by the Schedule.

10As it is agreed that the applicant has exhausted the non-CAT/non-MIG benefit limits and she has not sustained a catastrophic impairment, none of the other benefits in dispute are payable. That also applies to the applicant’s claim for an award and interest. No benefits were unreasonably withheld or delayed by the respondent and no payments for benefits are overdue, so the applicant’s claim is dismissed.

ANALYSIS

Did the applicant sustain a catastrophic Impairment as a result of the accident?

Criterion 7

11The applicant did not sustain a catastrophic impairment as a result of the accident under criterion 7 of the Schedule.

12The test for a CAT impairment is a legal test, not a medical test. To be determined to be CAT under criterion 7 of the Schedule, the applicant must prove that it is more likely than not that because of the accident she suffers from mental/behavioural impairments as per the 6^th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“Guides”) combined with a physical impairment score as per the 4^th edition of the Guides that results in a 55% or more whole person impairment (“WPI”).

13The Guides are composed of chapters, each one containing specific rating criteria for the degree of impairment of individual body systems. To arrive at a total WPI rating under the Schedule, each individual impairment must first be rated separately under the corresponding chapters within the Guides to obtain individual impairment ratings. Once the individual impairment ratings are determined, they are combined according to a formula in the Guides to arrive at the total WPI rating.

14There was a considerable discrepancy between the applicant’s and respondent’s WPI rating for mental or behavioural disorders.

15The applicant’s CAT assessors, Dr. Leslie Kiraly, psychiatrist, and Dr. Jihad Abouali, orthopaedic surgeon, concluded that the applicant suffered from a combined physical and mental/behavioural WPI rating of 71%. A breakdown of the physical impairment rating by Dr. Abouali included: 5% WPI neck, 5% WPI low back, 10% WPI left shoulder, 7% WPI right shoulder, 26% WPI left lower extremity, 4% impairment right lower extremity, 5% WPI skin, and 3% WPI for medications.

16The respondent’s physical assessor, Dr. Bruce Paitich, orthopaedic surgeon, assessed the applicant’s physical WPI rating at: 0% WPI right upper extremity, 0% WPI left upper extremity, 6% WPI left lower extremity, 0% WPI pelvic impairment, 0% WPI spine (including neck), 0% WPI skin, and 0% WPI for medication use. Dr. Lakshmi Voruganti, psychiatrist, assessed the applicant’s mental/behavioural WPI rating as 0%. According to Dr. Voruganti, the applicant’s impairment score was related to several non-accident-related circumstances that were not accounted for by the applicant’s CAT assessor. So, the combined physical and mental/behavioural WPI rating put forth by the respondent was only 6% versus 71% by the applicant.

17I found Dr. Paitich’s testimony with respect to the Guides’ physical impairment rating system to be persuasive. Dr. Paitich testified that there needs to be a specific accident-related diagnosis to justify an impairment rating. For example, just because someone reports symptoms does not mean that an impairment rating should be assigned according to page 8 of the Guides. Dr. Paitich noted that Dr. Abouali’s shoulder impairment ratings were based on physical examination findings suggestive of impingement, but there was no history consistent with impingement, no positive diagnostic imaging, and no evidence to support an accident-related impairment of the shoulder. Dr. Paitich testified that in the absence of such findings that would establish an accurate diagnosis, it is not ratable according to the Guides.

18I have considered Dr. Abouali’s impairment rating of the applicant’s left lower extremity as well. Dr. Abouali advanced a 10% impairment rating for the applicant’s left femur fracture, utilizing a diagnosis-based estimate. According to page 85 of the Guides, however, no rating should be applied if treatment will improve the condition by at least 1 to 3%. Dr. Paitich testified that Dr. Abouali did not consider the outcome of surgical treatment and provided a pre-treatment rating. For example, x-rays of the applicant’s left leg dated April 2018 showed no malrotation or improper anatomical alignment that would be necessary to assign a 10% WPI rating. The Guides specify that an individual would have to have a 10-to-14-degree angulation or malrotation for such a rating. X-rays of the left leg dated March 2018 did reveal a 14-degree posterior angulation, but that was before the applicant’s surgical treatment. No angulation was observed on X-rays after surgery. I agree with the respondent, that Dr. Abouali assigned the incorrect impairment rating in that case. The same can be said for Dr. Abouali’s impairment rating of the applicant’s left ankle. Dr. Abouali assigned a rating based on the applicant’s status before surgical treatment.

19Dr. Abouali also assigned a WPI rating of 5% for the applicant’s cervical spine. Dr. Paitich testified that there are four potential factors required to move an individual from a 0% WPI rating up to a 5% WPI rating according to the Guides. The first thing would be a cervical fracture, which the applicant did not have. The next thing would be radicular pain and then guarding/spasm, which Dr. Paitich found no indication of. Finally, an individual would need to demonstrate loss of range of motion. Uniform loss would not move an individual from 0 to 5% WPI, but non-uniform loss might. Neither orthopaedic assessor made such a finding. Dr. Abouali based the 5% WPI for the neck on the applicant’s localized symptoms, which again contradicts the Guides.

20For greater context, the Guides set out that an impairment rating of 28% is to be assigned to individuals who have suffered an amputation that is three inches or more below the knee. Dr. Abouali assigned the applicant a right lower extremity impairment rating of 26% when her post-surgical injuries were not nearly to the extent of a total amputation.

21For these reasons, I question the reliability of Dr. Abouali’s physical WPI impairment ratings and afford them limited weight. Instead, I accept Dr. Paitich’s WPI rating of 2% for the applicant’s femur fracture, 3% WPI rating based on the applicant’s medial malleolar fracture with restricted range of motion, and a 1% WPI rating for her restricted hindfoot range of motion.

22In terms of mental/behavioural WPI impairment rating, Dr. Kiraly found that the applicant sustained a 40% overall WPI rating. That rating on its own would not meet the 55% WPI required for a CAT determination. Even if I accept Dr. Kiraly’s 40% WPI rating, the 40% WPI rating for mental/behavioural combined with a 6% WPI physical rating does not add up to the 55% WPI rating threshold the applicant would need to meet the criteria for a CAT determination under criterion 7. As a result, I find that the applicant has not demonstrated that she sustained a catastrophic impairment under criterion 7 of the Schedule.

Criterion 8

23The applicant did not sustain a catastrophic impairment as a result of the accident under criterion 8 of the Schedule.

24To be determined to be CAT under criterion 8 of the Schedule, the applicant must prove that it is more likely than not that the impairments she suffered because of the accident have resulted in at least three class 4 impairments (marked impairments), or at least one class 5 (extreme impairment) in any of the four areas of function outlined in Chapter 14 of the Guides, due to a mental or behavioural disorder.

25Impairments are classified using the word descriptions in Chapter 14 of the Guides on a five-category scale that ranges from no impairment to extreme impairment. These word descriptions are important because they assign meaning to each category. Therefore, it is not the category label itself (i.e. none, mild, moderate, marked, extreme) that must be carefully assessed and analyzed, but the language that the Guides use – the verbal rating criteria – describing these classifications.

26In Chapter 14 of the Guides, impairments are classified according to how much they impair a person’s useful functioning in the following four areas of function: activities of daily living (“ADLs”); social functioning (“SF”); concentration, pace and persistence (“CPP”); and adaptation (“AD”). I will address each of the four functional domains separately.

Activities of daily living

27The parties agree that the applicant did not suffer a marked impairment in her activities of daily living because of the accident.

28The Guides specify that activities of daily living include: self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep and social and recreational activities. Any limitation in these activities should be related the person’s mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual’s overall situation. The Guides set out that it is not the number of activities that are restricted, but rather the overall degree of the restrictions.

29Dr. Kiraly assessed a class 3 or moderate impairment rating under this functional domain. Dr. Kakshmi Voruganti, psychiatrist, assessed a class 1 or mild impairment rating. I accept their evidence and find that the applicant did not suffer a marked impairment with respect to activities of daily living.

Concentration, Persistence, and Pace

30I find that the applicant does not suffer a marked impairment in concentration, persistence, and pace because of the accident.

31The Guides specify that this area of functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. It is not only the number of aspects in which social functioning is impaired that is significant, but also the overall degree of interference with a particular aspect or combination of aspects.

32Dr. Kiraly determined that the applicant suffers from a class 4 or marked impairment in this functional domain. Dr. Vorugunti, however, found that the applicant was only suffering from a class 1 or mild impairment.

33I have placed more weight on the medical evidence and the testimony of the applicant’s medical providers because I found the applicant to be a poor historian and unreliable in her testimony. There were inconsistencies in her testimony, and she did not provide clear answers to questions that were asked. Inconsistencies were also observed by her assessors. For example, Ms. Vinita Tandon, occupational therapist, testified that the applicant’s hand grip strength was measured at between 0 to 1.3 lbs of pressure. The average grip strength for someone of a similar age is 40 to 60 lbs. According to Ms. Tandon, a significantly stronger hand grip strength than what the applicant demonstrated is required to be able to use a cane, which the applicant reports using on a daily basis.

34The clinical notes of the applicant’s family doctor and treating psychologist, Dr. Sharma, reveal that the applicant was in a romantic relationship with a man until the summer of 2021. Dr. Sharma testified that the applicant first advised her of a boyfriend in March 2020. The applicant testified, however, that she did not have a boyfriend, and she reported to all of her assessors that she had been single since the accident. All of this calls the applicant’s credibility and reliability into question.

35I found Dr. Voruganti’s testimony to be an important consideration in assessing the applicant’s function in this domain. He testified if impairment is identified for all four functional domains, then one should be able to clearly state if they are directly attributable to a mental health diagnosis, due to physical reasons, or due to non-medical reasons. He noted that the applicant was a new immigrant to Canada at the time of the accident, she knew very few people, and the two or three people that she did know abandoned her shortly after the accident. Dr. Voruganti also cited non-medical factors such as no coverage through OHIP for hospital fees, financial consequences, inadequate health services, inadequate family support, and residential instability as non-medical considerations that were not directly caused by the accident but impacted the applicant’s function. While it is agreed that the applicant had some impairments in concentration, persistence, and pace, they were because of her physical pain or non-medical circumstances.

36I am persuaded by the fact that the applicant returned to school and completed her college diploma in public relations several months after the accident without formal accommodations from the college. For well over a year, she continued attending school, completed assignments, and passed her classes. I recognize that she had some assistance from teachers and other students when completing group work, but she was consistently able to initiate the task of getting herself to and from school, attending classes, completing assignments, and passing her courses.

37I have also considered the surveillance footage from September/October 2018. While I recognize that the footage represents only a snapshot in time and that it is not necessarily representative of the applicant’s day to day abilities, the footage clearly show the applicant using a cane inconsistently when walking a distance to a bus, talking for extended periods and laughing while on her cell phone, talking and laughing with other people outside at home, shopping for groceries on her own, driving a car on her own, and spending time in a bank having a lengthy discussion with a staff member. At no point in the footage did the applicant appear to be unable to persist or concentrate.

38In Dr. Kiraly’s rebuttal report of August 2022 he noted that the applicant was cooperative, not combative, able to complete psychometric testing in a timely manner, and she did not demonstrate any overt panic during the assessment. If he had noted any of those things, he testified that he would have included them in his report. Dr. Kiraly also testified that he was unaware that the applicant was driving at the time of his assessments, but he concurred that driving was a cognitively demanding task. I agree. The applicant testified that she would drive herself when there was a friend driving in front of her providing support by phone while driving, but to me, that would be at least, if not more, cognitively demanding.

39Apart from driving and taking the bus independently to school or to the grocery store, Dr. Sharma testified that the applicant also took the bus independently to and from her appointments before COVID restrictions came into effect after March 2020. The applicant also managed her appointment scheduling and she testified that she managed her own finances.

40Ms. Tandon testified that during her most recent assessment of the applicant in October 2021, the applicant was able to complete functional testing without difficulty and organize/plan by following abstract rules or tasks. The applicant completed shopping tasks at Walmart without assistance, and the time required to complete all testing was in the average range. Ms. Tandon testified that she did not find that the applicant lacked insight or judgement over the three times she assessed the applicant after the accident.

41While I accept the applicant’s inability to complete many day-today tasks at home without assistance, I find that her residual level of functioning with respect to concentration, persistence, and pace is only moderately impaired. That is to say that her impairment level in this functional domain is compatible with some, but not all useful functioning. She was able to initiate and follow-through with getting to and from school and appointments, attending classes, obtaining her college diploma, driving, going shopping, and completing formal testing through her medical assessors.

42Since I have found that the applicant did not sustain class 4 or marked impairments in the functional domains of activities of daily living and concentration, persistence, and pace, I do not need to address the remaining two functional domains. In order to meet the criteria for CAT determination under criterion 8, the applicant would have to have class 4 or marked impairments in at least three of the four functional domains.

ORDER

43The applicant has not sustained a catastrophic impairment under criterion 7 or 8, as defined by the Schedule.

44As it is agreed that the applicant has exhausted the non-CAT/non-MIG benefit limits and she has not sustained a catastrophic impairment, none of the other benefits in dispute are payable. That also applies to the applicant’s claim for an award and interest. No benefits were unreasonably withheld or delayed by the respondent and no payments for benefits are overdue, so the applicant’s claim is dismissed.