Sara Simmons v. BelairDirect Insurance Company, 2023 CanLII 26935

Licence Appeal Tribunal File Number: 22-002051/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:

Sara Simmons

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION

ADJUDICATOR: Christopher Evans

APPEARANCES:

For the Applicant: Michael Brill, Counsel

For the Respondent: Leanne Zawadzki, Counsel; Caroline Theriault, Counsel

HEARD: by Videoconference: March 6-10, 2023

OVERVIEW

1Sara Simmons, the applicant, was involved in an automobile accident on February 15, 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 benefits by BelairDirect Insurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant crashed into a tractor pulling a car out of the ditch on a foggy day. She was travelling on a provincial highway at approximately 70 kilometers per hour. She sustained a concussion and a fracture of her tibia that required surgery. After the accident, she was diagnosed with several mental disorders.

3The applicant has exhausted the $65,000 in medical, rehabilitation, and attendant care benefits currently available to her. She alleges that she suffers from a catastrophic impairment due to a mental or behavioural disorder, which would entitle her to $1,000,000 in benefits. She also alleges that she is entitled to attendant care benefits with interest, and an award under s. 10 of Regulation 664 on the grounds that the respondent unreasonably withheld or delayed payments.

ISSUES

4The issues in dispute are:

1. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
2. Is the applicant entitled to $8,181.24 in attendant care benefits?
3. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5The applicant sustained a catastrophic impairment and is partly entitled to the attendant care benefits in dispute with interest.

6The applicant is not entitled to an award under s. 10 of Regulation 664.

HAS THE APPLICANT SUSTAINED A CATASTROPHIC IMPAIRMENT?

7The applicant alleges that she sustained a catastrophic impairment within the meaning of ss. 3.1(1)8 of the Schedule. She must establish that she sustained a mental or behavioural disorder resulting in a class 4 (marked) impairment in three or more areas of function that precludes useful functioning, or a class 5 (extreme) impairment in one or more areas of function that precludes useful functioning. Impairment is rated in accordance with chapter 14 of the 4th edition of the AMA Guides.

8The four areas of function are:

1. Activities of daily living;
2. Social functioning;
3. Concentration, persistence, and pace; and
4. Deterioration or decompensation in work or work-like settings (adaptation).

9The five classes of impairment are:

Class 1: No impairment No impairment is noted

Class 2: Mild impairment Impairment levels are compatible with most useful functioning

Class 3: Moderate impairment Impairment levels are compatible with some, but not all, useful functioning

Class 4: Marked impairment Impairment levels significantly impede useful functioning

Class 5: Extreme Impairment Impairment levels preclude useful functioning

10The applicant submits that she suffers from class 4 (marked) impairments in activities of daily living, social functioning, and adaptation. She does not claim that she suffers from a class 5 (extreme) impairment in any area of function. She relies on the reports of Dr. R. van Reekum, a psychiatrist and neuropsychiatrist, and Dr. Z. Waisman, a psychiatrist, who assessed the severity of her impairments in the four areas of function. She also relies on the report of Mr. J. Amchislavsky, an occupational therapist who collected information about her functional abilities but did not assess her level of impairment.

11The respondent submits that the applicant suffers from a class 4 (marked) impairment in activities of daily living, and a class 3 (moderate) impairment in the other three areas of function. It also submits that the accident did not cause the applicant’s impairments. It relies on the reports of Dr. P. Derry, a psychologist who assessed the severity of the applicant’s impairments in the four areas of function, and Ms. M. Robbins, an occupational therapist who collected information about the applicant’s functional abilities but did not assess her level of impairment.

12The key questions for me to decide are whether the applicant suffers from class 4 (marked) impairments in social functioning and adaptation. If so, then she meets the test for catastrophic impairment under s. 3.1(1)8.

13In Pastore v Aviva, 2012 ONCA 642 at para 6, the Court set out a three-step approach for determining whether a person has sustained a catastrophic impairment due to a mental or behavioural disorder:

1. Did the accident cause the applicant to suffer a mental or behavioural disorder?
2. If it did, what is the impact of the mental or behavioural disorder on the applicant’s life?
3. In view of the impact, what is the level of impairment?

14Given the overlap between steps two and three, I address them together.

Did the accident cause the applicant to suffer a mental or behavioural disorder?

15I find that the applicant suffers from mental or behavioural disorders due to the accident.

16The applicant was not diagnosed with any psychological disorders before the accident. After the accident, she received treatment for her mental health from Dr. C. Stemerdink, her family doctor since 2011, and Dr. J. Switaj, a psychologist, from July 17, 2018 to November 5, 2019. Dr. Stemerdink referred the applicant to Dr. P Nolan, a psychiatrist, for consultations on December 27, 2019 and September 17, 2021. These treating practitioners diagnosed her with two disorders listed in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-V): depression with anxiety, and post-traumatic symptom disorder (“PTSD”). Dr. Stemerdink’s clinical notes document that the applicant also suffers from chronic pain, and that on August 15, 2018, he referred the applicant to a clinic called Shift Concussion Management to treat the ongoing impacts of her concussion.

17Dr. van Reekum and Dr. Waisman also diagnosed the applicant with DSM-V disorders. In his report dated November 3, 2022, Dr. van Reekum diagnosed major depressive disorder with associated anxiety, and somatic symptom disorder with persistent pain. Dr. Waisman conducted two assessments: the first on January 22, 2020, and the second on February 1, 2023. In his first report, he diagnosed the applicant with major depressive disorder with a persistently high level of anxiety, and somatic symptom disorder with predominant pain. In his second report, he modified his diagnosis of major depressive disorder to persistent depressive disorder because the applicant’s symptoms had lasted for more than two years. He also diagnosed the applicant with PTSD because she reported experiencing nightmares and flashbacks relating to the accident. He noted that she had not reported these symptoms at his first assessment but explained that the symptoms of PTSD can wax and wane over time. Both doctors noted that the applicant suffers from chronic pain, disturbed, non-restorative sleep, fatigue, difficulties with concentration and memory, and sexual dysfunction. In their view, her pain and the symptoms of her concussion and mental disorders are mutually reinforcing.

18Dr. Derry opined that the applicant suffered from depression and anxiety prior to the accident, but that they were worsened to some degree by the accident. He diagnosed the applicant with major depressive disorder with anxious distress. He saw no basis for diagnosing the applicant with PTSD or somatic symptom disorder.

19All the treatment providers and assessors were of the view that the applicant suffers from at least one mental or behavioural disorder due to the accident. That is sufficient to meet the first branch of the Pastore test. That said, I find that the applicant suffers not just from depression and anxiety, but also the disorders diagnosed by Dr. van Reekum and Dr. Waisman. As discussed below, I prefer their opinions to Dr. Derry’s because they had a more accurate understanding of the applicant’s mental health. Their diagnoses are also corroborated by the applicant’s treatment practitioners.

20The respondent concedes that the accident is one of the contributing factors to the applicant’s impairments due to mental or behavioural disorder. Nevertheless, it argues that the accident does not meet the test for causation because other factors contributed to these impairments, including prior accidents in 2013 and 2014, the breakdown of the applicant’s relationship with her partner after the accident, a slip and fall in February 2019, a subsequent car accident on July 29, 2019, the death of her grandfather in late 2019, inconsistencies in taking medication, overuse of cannabis, and the COVID-19 pandemic.

21The parties agree that the applicable test for causation is whether the applicant would not be catastrophically impaired “but for” the accident.

22I find that the accident meets the “but for” test for causation. I accept that the accident is not the sole cause of the applicant’s impairments. However, that is not what the “but for” test requires. The accident must be a necessary cause of the applicant’s impairments but need not be sufficient in itself to cause those impairments: Sabadash v State Farm et al, 2019 ONSC 1121 (Div Ct) at para 39. By the respondent’s own admission, the accident meets this test. In any event, there is abundant evidence that the accident was a significant cause of the applicant’s mental and behavioural disorders and the resulting impairments. Although there are some references to mood-related issues and marital problems in her pre-accident medical records, she was not diagnosed with a mental health disorder, and these issues pale in comparison with the problems that emerged immediately after the accident. Her psychological symptoms were well-established by the time of the post-accident events identified by the respondent. The respondent does not argue—nor does the evidence show—that the applicant’s psychological impairments from the accident had resolved entirely by February 2019 and that her current impairments were caused only by the slip and fall and subsequent events.

23The respondent also referred to the February 2019 slip and fall as an intervening act, noting that the applicant appeared to be improving before the fall, was diagnosed with a concussion, and subsequently reported more severe headaches and difficulty concentrating. The respondent also notes that while the July 29, 2019 car accident was minor, the applicant subsequently reported worsened back pain, headaches, anxiety, and stress.

24I do not accept this submission. The concept of an intervening act is part of the test for whether there has been an “accident” within the meaning of s. 3(1) of the Schedule. Understood in the context of this test, an intervening act is an event that occurs during or immediately following the use of an automobile, and not months or years later as in this case. For example, in Chisholm v Liberty Mutual Group, [2002] OJ No 3135 (CA), 2002 CanLII 45020 (ON CA) the Court held that a person who was shot while driving did not sustain an accident within the meaning of the Schedule because the shooting was an intervening act. In this case, there is no question that the collision with the tractor was an accident.

What is the level of impairment?

25I find that the applicant suffers from a class 4 (marked) impairment in three areas of functioning: activities of daily living, social functioning, and adaptation.

26The applicant and her mother described how her mental health issues have affected her. Dr. Stemerdink also testified. It was clear that he knew the applicant well and had a detailed understanding of her health issues and their implications. Mr. Amchislavky’s and Ms. Robbins’s reports describe her functional abilities and the limitations caused by her health conditions. Dr. van Reekum, Dr. Waisman, and Dr. Derry drew from these reports and obtained further information from the applicant’s medical records and through clinical interviews.

27As noted above, the key questions are whether the applicant suffers from class 4 (marked) impairments in social functioning and adaptation. The parties agree that she suffers from a class 4 (marked) impairment in activities of daily living and a class 3 (moderate) impairment in concentration, persistence, and pace.

Social functioning

28I find that the applicant suffers from a class 4 (marked) impairment in this area of function.

29The AMA Guides state that social functioning refers to an individual’s capacity to interact appropriately, communicate effectively, and get along with others, including family members, friends, and members of the public. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Other indicators of social functioning include the ability to initiate social contact with others, communicate clearly, and interact and actively participate in group activities and cooperative behaviour, and to show consideration for others, awareness of others’ sensitivities, and social maturity. One must consider the number of aspects in which social functioning is impaired and also the overall degree of interference with a particular aspect or combination of aspects.

30One of the most dramatic changes in the applicant’s functioning after the accident was her emotional volatility. She became short-tempered, aggressive, and profane. She would be easily overwhelmed in stressful situations and prone to panic attacks and emotional breakdowns. She would provoke and escalate conflict with others. The applicant, her mother, and Dr. Stemerdink testified that she did not behave this way before the accident.

31The applicant’s mother testified that the applicant often loses her temper at her and will become abusive and profane. She described an episode where she had friends over for dinner. The applicant ruminated obsessively about an event that had happened when she was 12 years old and called her a “horrible mom.” After the dinner, her friends reached out to see how she was managing. She testified that this was only one of many times when she has been humiliated by the applicant’s behaviour. Mr. Amchislavsky and Dr. van Reekum observed the applicant yell at her mother during their assessments. Dr. Stemerdink described appointments where the applicant was upset by having to wait for him and by being required to wear a mask, which makes her claustrophobic. There are other altercations documented in her medical records, and a distinct tone of exasperation in many of her treatment providers’ notes.

32Rather than enumerate all the examples of inappropriate behaviour by the applicant, I note three of the most compelling:

1. In the months following the accident, the applicant’s relationship with her partner deteriorated to the point of physical abuse. While her partner’s conduct was inexcusable, the applicant and her mother acknowledged that her volatility was a significant contributing factor. In her mother’s words, the applicant “would get you to this point where you don’t know how to handle her.”
2. In July and August 2022, the applicant got in two physical fights with another person in her building. They had previously been on friendly terms. She testified that the other person provoked the second fight only by coming up behind her unexpectedly. She pushed the woman to the ground and they hit each other. When the woman said she was going to jail, she punched her in the face. As a result of this altercation, she was charged with assault causing bodily harm.
3. The applicant described an incident at the airport where she panicked after being separated from her mother for 15 minutes. She “lost it at a couple of people” and her mother worried she would not be allowed to board the plane.

33I find that the applicant is significantly impeded in her ability to interact appropriately and get along with others, including her family, treatment providers, and members of the public. This is evidenced by many instances of verbal and sometimes physical altercations. It was also apparent from her testimony. She frequently broke into tears and required many breaks to collect herself. She was hostile and combative on cross-examination, and yelled and swore at counsel. I put limited weight on her demeanour given that she has an interest in exhibiting poor social functioning. Nevertheless, her conduct went beyond that of a difficult witness.

34The respondent argues that because the applicant largely does act appropriately in social situations, her impairment is consistent with some but not all useful functioning and is therefore moderate (i.e. class 3). It relies on a surveillance video taken of the applicant from August 16-19, 2022. On one day, the video shows her chatting with two other mothers at the playground for more than an hour, then going out for lunch with them, her son, and their kids. In the video, she appears to be enjoying the conversation, and seems relaxed, friendly, and even exuberant at times. The respondent also notes that the applicant testified that she had a brief romantic relationship after the accident.

35I do not accept this submission. The fact that the applicant can act appropriately in many or even most situations does not imply that she is only moderately impaired. The AMA Guides state that 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. Stress and conflict inevitably arise in one’s social life. The applicant’s inability to handle such situations and the magnitude of the inappropriate behaviour that can ensue are sufficient to establish that her functioning is significantly impeded.

36The respondent relies on Z.R. v Gore Mutual Insurance Company, 2020 CanLII 34430 (ON LAT), aff’d 2021 CanLII 18915 (ON LAT) (Reconsideration), Gore v Rusk, 2022 ONSC 2893 (Div Ct), in which the applicant was found to suffer from a moderate impairment in social functioning even though his social life was not “well-adjusted,” as illustrated by limited socialization with friends, inability to maintain a romantic relationship, limited day-to-day activities, and reliance on his father and grandmother for companionship. This case is not instructive because the applicant was limited in his ability to engage in social activities and not in his ability to act appropriately in social situations.

Deterioration or decompensation in work or work-like settings (adaptation)

37I find that the applicant suffers from a class 4 (marked) impairment in this area of function.

38The AMA Guides describe deterioration or decompensation in work or work-like settings as repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or activities of daily living, continuing social relationships, and completing tasks. Stressors common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers.

39The applicant and her mother testified that she needs to be accompanied at a large grocery store or the gym, otherwise she will find the crowds overwhelming. They testified that she avoids driving further than 20 minutes from home, and that when she does, she can experience panic attacks. They testified that if she feels pressured to complete a household task in too little time, she will break down and be unable to carry on. The applicant’s mother testified that in such situations, she will get scared, start to shake, and yell or cry out of frustration. The applicant compulsively picks at her face and forehead with her fingernails. In a picture taken by Ms. Robbins, her forehead is blanketed with sores. At the hearing and in the surveillance video, there were also sores on her face.

40The most dramatic illustration of decompensation comes from Mr. Amchislavsky’s report. His assessment began at the applicant’s home, and consisted of interviewing the applicant and her mother, having the applicant complete questionnaires, and testing her basic physical abilities. After approximately two hours, Mr. Amchislavsky moved to the situational component of the assessment, which tests a person’s functional capacities by having them complete everyday tasks. Mr. Amchislavsky proposed that they go to the grocery store and provided the applicant with a list of items. He testified that a community outing can be an instructive test of a person’s real-life function because there are more sources of stimulation and stress than at home. Mr. Amchislavsky provides a vivid description of what followed in his report, which I reproduce verbatim:

Upon being told that she is required to leave her residence to go shopping, Ms. Simmons demonstrated significant distress. She was observed to rub her hands and cry profusely, like she did much throughout the entire assessment. She was observed to stutter, scream and uttered ‘I cannot be rushed at all, this is not happening, I don’t want to go shopping, I just don’t feel like today is a good day to go out’. She was observed to franticly run out of the door, into her own apartment which was located across the hall’. She was provided 20 minutes, in which time her mother attempted to desensitize and calm her down’. Ms. Simmons was retrieved into the apartment by her mother, after which she again reported; ‘I have to get my son at five, and he depends on me, I have to make sure that I’m ready for him, If I try this shopping, this will kill me for the rest of the day, I’m already sick, I can’t…’ she was observed to cry profusely once again which rubbing her hands. She reported ‘I usually save my energy for the whole day; sometime I have friends to motivate me to leave the house. They sometimes take me to the dog park in the morning. I feel like having a schedule is key, and without one I’m struggling so hard to have it, I have no time management’.

Her mother attempted to comfort her as she was crying however, she pushed her mother away and screamed ‘I have to get their mommy, you don’t have to do s***, you just have to watch me… I’m tired… I’m so tired… don’t touch me, don’t touch me… I can’t handle any more stress and bull**** in my life, it’s all stress and bull****… I can’t do this, I didn’t brush my teeth, I am wearing the same clothing as I did yesterday, I don’t look presentable, I don’t want to do this’

She then left the apartment once again, pushing her mother’s hands away and forgot about the kettle which was running as she turned it on to make tea.

The occupational therapist attempted to retrieve the client once again; however, the client was adamant she is not leaving her residence today, even to attempt.

The test was subsequently terminated.

41Mr. Amchislavsky testified that he remembered this incident well although more than three years had passed and he has done many assessments before and since. He described it as “bizarre” and highly unusual, and testified that he has witnessed a physical altercation at only one other assessment.

42While this episode is the most extreme example of decompensation, it is only one of many. The instances of impaired social functioning reviewed above also serve as examples of decompensation.

43In my view, the results of Ms. Robbins’s situational assessment are consistent with Mr. Amchislavsky’s. The applicant showed signs of decompensation and refused to complete some tasks, but generally managed to maintain her composure. I see this as a quantitative rather than a qualitative difference in her performance. Had Ms. Robbins pushed the applicant a little further, she may well have provoked a similar reaction as did Mr. Amchislavsky. It is telling that the applicant refused Ms. Robbins’s requests that they visit the grocery store or just go for a walk.

44I find that the applicant is significantly impeded in her ability to adapt to stressful work or work-like situations. She has not worked since the accident, and I cannot envision her succeeding in any workplace. She can decompensate dramatically when she encounters stress in activities of daily living or social interactions, and she tends to avoid stressful situations such as driving more than 20 minutes from home or going to a large grocery store on her own or at all.

45The respondent argues that the applicant is moderately impaired because she does not decompensate in all stressful situations. It points to her conduct during Ms. Robbins’s and Dr. Derry’s assessments and the surveillance video, which shows her taking her dog for short walks, taking her son to the pool, and engaging in a lengthy conversation at a busy playground and a restaurant. The respondent also highlights that the applicant lives somewhat independently and takes care of her son.

46I do not accept this submission. It would be unduly onerous to require that the applicant decompensate in any situation involving any amount of stress to establish a class 4 (marked) impairment. That would arguably be closer to the test for a class 5 (extreme) impairment, although I do not make that finding. Even banal, everyday activities such as going to the grocery store can be debilitating. In my view, that is sufficient to establish that the applicant is significantly impeded in her ability to adapt to stressful circumstances.

Expert evidence regarding the level of impairment

47As noted above, Dr. van Reekum, Dr. Waisman, and Dr. Derry assessed the applicant’s level of impairment in the four areas of function. While I have taken their evidence into account, I have determined the applicant’s levels of impairment myself by applying the evidence to the criteria in the AMA Guides. Whether the applicant sustained a catastrophic impairment is a legal question and not a medical one: Liu v 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at para 29. That said, I will explain why I do not accept Dr. Derry’s opinion that the applicant suffers from class 3 (moderate) impairments in social functioning and adaptation.

48The applicant reported quite mild psychological symptoms to Dr. Derry. He found that she was pleasant and cooperative, and acted appropriately throughout the assessment. Her main complaint was pain. She described her mood as “OK” and denied feeling sad or anxious, or having nightmares or flashbacks involving the accident. She described a typical day without mentioning any limitations in her ability to perform activities of daily living, and told him that she was “actually really comfortable in the car” as long as she is not distracted.

49Dr. Derry’s account of the applicant’s presentation and level of functioning is an outlier. It contrasts starkly with the testimony of the applicant, her mother, and Dr. Stemerdink, and the applicant’s medical records, most notably the clinical notes and records of Dr. Stemerdink and Dr. Switaj. Dr. van Reekum’s and Dr. Waisman’s accounts are consistent with this evidence.

50Dr. Derry attributed the difference between his ratings and Dr. Waisman’s ratings in his first report to two factors. First, given that Dr. Waisman’s assessment had been done more than a year before his, the applicant’s psychological status may have improved since then. Second, as a physician, Dr. Waisman considered the applicant’s physical and medical issues, but as a psychologist, he based his ratings strictly on a mental and behavioural issues. He drafted two addenda to his report, where he reviewed Dr. van Reekum’s report, Dr. Waisman’s second report, and other documents including Dr. Stemerdink’s clinical notes and records up to October 2022. He concluded that they did not change his opinion. On cross-examination, he testified that his opinion did not change because it was based on how he found the applicant at the time of his original assessment.

51Dr. van Reekum and Dr. Waisman also attributed the differences in their findings to their areas of expertise. They testified that it is important to look at all the applicant’s psychological symptoms and their interaction with her pain and concussion to understand the full scope of her impairment. Because Dr. Derry is a psychologist and not a medical doctor, in their view his analysis was focused only on impairment caused by depression and anxiety.

52I find that the inconsistency in the assessors’ findings lies in the drastically different information provided by the applicant, and not their areas of expertise. Dr. Derry did not artificially narrow his assessment of the applicant’s impairments by filtering them through the lens of depression and anxiety. Based on the information provided by the applicant, he simply saw no evidence of impairment caused by any other mental disorder. Dr. van Reekum and Dr. Waisman did not include impairment caused by the applicant’s physical injuries in their ratings. They stated only that one must understand how the applicant’s physical symptoms influence her psychological symptoms.

53It is perplexing that the applicant gave such a positive account of her mental health to Dr. Derry. The most likely explanation is that the assessment happened to occur on one of her better days. Her medical records show that at other times she reported significant improvement in her psychological symptoms and hopefulness about the future. For example, on January 20, 2020, she reported to Dr. Nolan that after establishing a daily exercise routine and starting on an anti-depressant, she was feeling much better, her anger was improving, her mood was “as good as it has been in years,” her thinking was much more focused, she was not experiencing any PTSD symptoms, and she did not need to see Dr. Nolan on an ongoing basis. At an appointment with Dr. Stemerdink on January 31, 2020, the applicant reported that she felt her condition was improving, she was much improved at letting her anger go, she was exercising four to five times per week, had gained weight, and was eating and sleeping better. Dr. Stemerdink observed that she looked well and had a bright affect.

54Dr. Derry gave greater weight to his observations of the applicant than the documents he reviewed, particularly the documents provided for his addenda. I consequently do not accept his opinion for two reasons:

1. His assessment was a snapshot in time that captured a peak in the applicant’s level of function and optimism. As such, it does not accurately reflect the severity of the applicant’s impairments most of the time. By concluding that the additional documents he reviewed did not change his opinion, he did not account for this possibility.
2. He observed the applicant in a controlled environment. The assessment was held in his office and lasted three hours. The AMA Guides caution that a single examination may not adequately describe a person’s ability to function in a sustained way, and that it is necessary to review information pertaining to the individual’s functioning at times of increased stress. While this statement refers specifically to individuals with chronic psychotic disorders, in my view it applies equally to any mental disorder that impairs a person’s ability to handle stressful situations. In giving primacy to his own observations of the applicant, Dr. Derry did not give sufficient weight to the evidence documenting her ability to handle stressful real-world situations.

55I therefore do not accept Dr. Derry’s opinion that the applicant suffers from class 3 (moderate) impairments in social functioning and adaptation. As I find that Dr. van Reekum and Dr. Waisman had a more accurate understanding of the applicant’s mental health, I accept their opinions that she suffers from class 4 (marked) impairments in these areas of function.

Conclusion

56I find that the applicant suffers from class 4 (marked) impairments in activities of daily living, social functioning, and adaptation. As she suffers from class 4 (marked) impairments in three areas of function, she is catastrophically impaired within the meaning of s. 3.1(1)8 of the Schedule, and entitled to $1,000,000 in medical, rehabilitation, and attendant care benefits.

IS THE APPLICANT ENTITLED TO ATTENDANT CARE BENEFITS OF $8,181.24 AND INTEREST?

57I find that the applicant is partly entitled to the attendant care benefits in dispute.

58One of the issues stated in the Tribunal’s Case Conference Report and Order of September 7, 2022 is whether the applicant is entitled to attendant care benefits of $8,181.24 per month from October 25, 2019 to date and ongoing. In their closing submissions, the parties clarified that the claim was for a total of $8,181.24 in attendant care services. According to the invoices that were entered into evidence, it appears that the total amount incurred was actually $4,077.72.

59Section 19 of the Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for attendant care benefits must be in the form of and contain the information required to be provided in the approved version of an attendant care needs assessment (“Form 1”).

60The invoices show that a personal support worker provided attendant care two days per month in December 2019, January 2020, and from July 2020 to January 2021. It appears this care was provided in accordance with a Form 1 dated April 5, 2019, which assessed the applicant’s attendant care needs at $456.30 per month for the following services:

1. 20 minutes per week to clean and trim the applicant’s toenails;
2. 210 minutes per week (i.e. 30 minutes per day) to assist in preparing and serving meals;
3. 105 minutes per week (i.e. 15 minutes per day) to clean the bathroom; and
4. 105 minutes per week (i.e. 15 minutes per day) to clean the applicant’s bedroom, change the bedding, and make the bed.

61The applicant notes that Dr. van Reekum, Dr. Waisman, and Dr. Derry agreed that she suffers from a class 4 (marked) impairment in the activities of daily living area of function. She also argues that she met the onerous test for non-earner benefits, which requires that she suffer a complete inability to carry on a normal life.

62The respondent argues only that because the applicant has exhausted the $65,000 in benefits currently available to her, she is not entitled to the attendant care benefits if she is found not to be catastrophically impaired. The respondent’s submissions did not address whether the attendant care provided was reasonable and necessary.

63The applicant and her mother described the limitations in her ability to perform activities of daily living. Their testimony was largely corroborated by Mr. Amchislavsky’s and Ms. Robbins’s reports. In brief, the applicant is limited by pain, fatigue, low motivation, and anxiety. She testified that she focuses her energy first and foremost on taking her of her son. As a result, she neglects to take care of herself. She may omit to wash her hair, brush her teeth, or change her clothes, and she does not wear underwear because it takes too much effort. Her mother will call her from work to make sure that she takes her medication or gives her son a bath. The applicant only has the capacity to do one or two household tasks per day, such as cleaning, doing laundry, warming up frozen food, or washing dishes. She relies heavily on her mother, who lives down the hall, and her 74-year-old grandmother, who visits from out of town. She testified that without their help, she would probably lose her son and be on welfare. Her mother testified that she feels the need to stay close at hand to make sure that her grandson is properly taken care of, and that she uses all her vacation and sick days to help the applicant. She described “hitting [her] plateau” in the last few months, which I took to mean that she is burned out. She testified that she will not live forever, and she worries what will happen to the applicant when she is gone.

64The parties do not appear to disagree significantly on the nature or extent of the applicant’s limitations in her ability to carry out the activities in the Form 1. They agree that under the test for catastrophic impairment due to mental or behavioural disorder, she is severely impeded in her ability to carry out activities of daily living.

65I find that attendant care to assist with cooking meals, cleaning the bathroom, and cleaning the applicant’s bedroom is reasonable and necessary. These services will ensure that applicant meets her and her son’s needs, and will reduce the intense pressure on her mother and her grandmother. These items total one hour per day. This is an appropriate amount of time given that there appears to be at least one hour of housework to be done each day. The applicant has not established that 20 minutes per week to clean and trim her toenails is reasonable and necessary. I was not directed to any evidence that the applicant is unable to carry out this activity except insofar as she neglects her personal care generally.

66Deducting the expense for cleaning and trimming toenails (i.e. $21.36 per month), the applicant is entitled to attendant care benefits of $434.94 per month plus HST. The invoices show that she incurred $400.95 per month in attendant care services plus HST over the nine months in question, which comes to a total of $4,077.72. I find that she is entitled to that amount with interest pursuant to s. 51 of the Schedule.

IS THE APPLICANT ENTITLED TO AN AWARD?

67I find that the applicant is not entitled to an award.

68Section 10 of Regulation 664 states that in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, the Tribunal may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award if the insurer unreasonably withheld or delayed payments.

69The applicant submits that the respondent did not adjust her accident benefits file in good faith. She argues that this duty continued up to the hearing, and notes that the adjuster did not attend.

70The respondent submits that there is no evidence that shows it mishandled the applicant’s file. It argues that it reviewed the applicant’s medical records, commissioned independent assessments, and corresponded with her in a timely manner.

71An award cannot be made with respect to a catastrophic impairment determination because it is not a benefit. An award can only be made with respect to the attendant care benefits in dispute. I find that the respondent did not unreasonably withhold those benefits. It paid attendant care benefits in accordance with the April 5, 2019 Form 1 until the applicant exhausted her benefits on October 2, 2019. This on its own is not unreasonable conduct that merits an award.

ORDER

72The applicant sustained a catastrophic impairment within the meaning of s. 3.1(1)8 of the Schedule.

73The applicant is entitled to attendant care benefits in the amount of $4,077.72 plus interest.

74The applicant is not entitled to an award under s. 10 of Regulation 664.