Citation: Mbarak v. Wawanesa Mutual Insurance Company, 2023 ONLAT 20-014858/AABS

Licence Appeal Tribunal File Number: 20-014858/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:

Lelliane Mbarak

Applicant

And

Wawanesa Mutual Insurance Company

Respondent

DECISION AND ORDER

VICE-CHAIR:

Tyler Moore

APPEARANCES:

For the Applicant:

Lelliane Mbarak, Applicant

Paul H Auerbach, Counsel

Ashley Thompson, Paralegal

For the Respondent:

Darrell March, Counsel

Samantha Silver, Law clerk

Court Reporters:

Bruce Porter and Denise Gerginova

HEARD: by Videoconference:

August 9, 10, 11, 12, 18, 2022

OVERVIEW

1The applicant was involved in an automobile accident on February 26, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010.

2The applicant was the seat-belted driver of a vehicle that was hit by another vehicle in a commercial parking lot on the front driver’s side corner. The road conditions at the time were icy and snowy. Damage to the applicant’s vehicle was assessed at under $1200.¹ The applicant’s airbags did not deploy, but she reported hitting her head. She was dizzy and vomited a short time after exiting her vehicle. Police and ambulance did not attend the scene. The applicant’s friend drove her to a nearby hospital where the applicant was diagnosed with soft-tissue injuries and a concussion before being released the same day.²

3As a result of the accident, the applicant submits that she suffers from chronic pain, major depression, anxiety, somatic symptom disorder, and post-traumatic stress disorder. She submits that her overall condition impacts all aspects of her daily life.

4The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). Specifically, the respondent denied that the applicant’s accident-related impairments met the definition of catastrophic (“CAT”) impairment based on a mental and behavioural disorder (Criterion 8) as defined under the Schedule.

Preliminary PROcedural Issues

5During the course of the hearing, the respondent sought to introduce clinical notes of Dr. Suddaby that had not been previously disclosed. The respondent was not able to provide a convincing argument as to why they had not been disclosed earlier. The applicant submitted that the respondent should rely on Dr. Suddaby’s reports that had already been disclosed to limit any prejudice to the applicant. Given the late nature of the respondent’s request and lack of convincing argument as to why the documents were not disclosed earlier, the request was denied. The respondent was advised to rely on the information contained in Dr. Suddaby’s reports that had already been filed.

ISSUES

6The following is agreed to be the sole issue to be decided at the hearing:

i. Did the applicant sustain a catastrophic impairment as a result of her accident under Criterion 8, as defined by the Schedule?

RESULT

7I find that on a balance of probabilities, the applicant sustained at least one marked impairment due to a mental or behavioural disorder as a result of the accident. Accordingly, I find that she has sustained a catastrophic impairment as defined by the Schedule.

ANALYSIS

Catastrophic Impairment

8The test for catastrophic (CAT) impairment is a legal test, not a medical test.³ In order to be determined CAT under the Schedule, the applicant must prove, on a balance of probabilities, that the impairments she suffered as a result of the accident have resulted in a class 4 impairment (marked impairment) or a class 5 impairment (extreme impairment) in any of the four areas of function outlined in Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment⁴ (the “Guides”), due to a mental or behavioural disorder. If the applicant is deemed to be CAT, then she can apply for a greater tier of benefits that accompanies the designation.

9In 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”).⁵

10Impairments 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. 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.

11The Guides make it clear that a diagnosis of a specific psychological impairment is not required for CAT, but instead the focus is on function.

12For the purposes of this proceeding, the relevant classes – and the resulting disagreement between the parties – concerns whether the applicant’s impairments fall within class 4 (Marked Impairment) or class 5 impairment (extreme impairment) on any of the four areas of function. It is important to note that the difference in wording between the classes is subtle, but critical. For example, in Class 3 (Moderate), impairment levels are compatible with some, but not all, useful functioning. In Class 4 (Marked), impairment levels significantly impede useful functioning.

Positions of the parties

13The parties are essentially describing the applicant as two different people. The applicant asserts that the over exaggeration of her reported functional limitations is actually a symptom of her multiple mental health conditions. The respondent describes the applicant as an individual who has far fewer functional limitations in actuality than she demonstrates and describes to her assessors and treating physicians.

14The applicant submits that the respondent has not provided any medical opinion assigning impairment ratings to the applicant. As a result, it is unknown whether the respondent’s position is that the applicant has mild, moderate, marked, or extreme impairments as a result of the accident.

15The applicant relies on the opinion of Dr. Ken Suddaby, psychiatrist, in his two CAT psychiatric assessments of the applicant. In Dr. Suddaby’s June 2020 and March 2022 reports, he found that the applicant had Class 4 (Marked) impairments in the functional domains of ADLs, CPP, and AD⁶.

16The applicant submits that she had vulnerabilities related to a history of depression, anxiety, and a personality disorder, leading up to the February 2016 accident. Those pre-existing conditions were significantly amplified as a result of the accident. She submits that the accident triggered the development of chronic pain and a somatic symptom disorder.

17The respondent submits that the accident was extremely minor and that there is no evidentiary foundation confirming any significant impairment that would meet the applicant’s test and onus proving entitlement to CAT under Criterion 8. The applicant has magnified her symptoms, she has malingering symptomatology, and there is a significant disconnect between her reported level of impairment and her actual level of functionality.

18The respondent relies on the September 2020 psychological report from Dr. Tammie Ricci. Dr. Ricci found that the applicant was actively and consciously magnifying her symptoms⁷. Dr. Ricci also testified that psychometric testing she used for the applicant revealed much higher scores than even in-patient psychiatric populations. Because of these results, Dr. Ricci felt that she could not accurately rate the applicant’s level of impairment. Instead, she could only provide provisional diagnoses.

19The respondent also submits that this is a case about impairment, which is different from injury. A person can be injured and not be impaired. The applicant’s chronic pain and neck injury are not relevant. Rather, only the analysis of her mental and behavioural disorder should be addressed by the Tribunal.

20According to the respondent, Dr. Ken Suddaby’s psychiatric assessments and reports did not engage in the discussion of what constitutes a moderate versus a marked impairment. Dr. Suddaby failed to corroborate any of the applicant’s self-reports with other non-medical sources, despite conflicting findings of other assessors. The respondent submits that Chapter 14 of the Guides clearly sets out that if there are conflicts or inconsistencies, it is necessary to resolve them, and Dr. Suddaby failed to make any such inquiries. The respondent submits that Dr. Suddaby only assessed the applicant virtually, and not in-person. He did not conduct any crucial psychometric testing. Because Dr. Suddaby’s assessments were conducted virtually, his ability to observe the applicant was limited.

21The parties do agree, however, that the applicant does not suffer from a Class 4 (Marked) impairment with respect to the social functioning domain. With that in mind, my analysis will only focus on the three remaining functional domains in dispute.

Pre-existing mental health conditions

22I accept that the applicant had a pre-existing history of depression and anxiety based on the reports and testimony of Dr. Cattan, the applicant’s treating psychiatrist since 2008. The applicant consulted with Dr. Cattan first in 2008, and again in 2012. After returning to work in early 2014, she did not consult again with Dr. Cattan until a few weeks before the accident. She reached out to him because she was having some situational anxiety related to an upcoming financial advisor certification examination that she was scheduled to write the day after the accident.

23I accept the testimony of Dr. Cattan that expressed that the applicant had pre-existing mental health issues and that they were essentially in remission at the time of the accident.

Discrepancies

24The respondent submits that there is a major disconnect between the applicant’s self-reported and perceived level of function and her actual level of function. The video surveillance footage of the applicant does appear to support that to a degree.

25At the same time, I found Dr. Suddaby’s testimony with regard to his explanation of the impact that somatic symptom disorder has had on the applicant to be persuasive. Dr. Suddaby testified that in the applicant’s case, her somatic symptom disorder was a pathological emotional response to pain. As a result, she was overfocused on pain and impairment, particularly her functional impairment. He went on to testify that the applicant demonstrated avoidant behaviours out of fear of exacerbation of her pain. Specifically, she spent a great deal of time in her room and not carrying out household chores as a symptom of her mental health condition.

26As noted earlier, Dr. Ricci concluded that some of the psychometric testing used to assess the applicant in 2020 was not valid. She found that the applicant had a propensity for symptom amplification. Dr. Ricci also testified that because the psychometric testing she used was not valid and the applicant’s history was inconsistent, she could not provide any catastrophic impairment ratings. Dr. Ricci was not certain that the information she collected from the applicant was a true representation of what was actually going on.

27Dr. Suddaby testified that he reviewed Dr. Ricci’s 2020 report prior to his second, 2022 assessment of the applicant. He referenced that the testing results Dr. Ricci obtained were somewhat concerning. Dr. Suddaby also explained that symptom amplification was a common presentation in people with somatic symptom disorder with predominant pain, which was the case with the applicant. The applicant’s focus on her symptoms has led to her avoidant behaviours.

28The respondent also submits that the applicant’s self-report is a misrepresentation of her actual functional limitations and that it should be given little weight. I agree that the applicant’s self-report is but one factor to consider in a catastrophic determination. That is why I have equally weighed the oral testimony, the observations of others, the surveillance footage, and the applicant’s self-report.

29I acknowledge that there has been consistent reporting of symptom magnification and amplification by the applicant’s assessors. That is not in dispute. For example, Dr. Stewart, psychologist, reported in 2016 that the applicant demonstrated symptom amplification, but he still concluded that the applicant had accident-related impairment⁸. Another psychologist, Dr. Cook, came to a similar finding when he assessed the applicant. He noted symptom amplification with psychometric testing, but still found his results to be valid. Dr. Cook concluded that the applicant suffered accident-related impairments⁹.

30The question really is why the applicant is demonstrating symptom magnification and a pre-occupation with her condition. Is it for secondary gain, or is it a symptom of her mental health condition. I am more persuaded by the evidence that the amplification and magnification in a clinical setting is actually a symptom of the applicant’s mental health condition.

31In making this finding, I have also considered the applicant’s family doctor, Dr. Saad’s, clinical notes. In May 2020, he reported that the applicant had severe long-lasting depression with hypervigilant anxiety. He indicated that she was not sleeping well and that she appeared dishevelled, emotional, and she had dark circles under her eyes.¹⁰

32In April 2021, Dr. Saad reported that the applicant was not faking her symptoms and appeared to be generally affected with multiple issues and severe anxiety/worry. She had agoraphobia, severe depression, chronic pain, and needed to take multiple medications to calm her. Dr. Saad also noted that the applicant was incapable of doing any housework or cooking.

33The respondent submits that Dr. Suddaby failed to obtain commentary from the applicant’s family members or others in the community to help resolve any inconsistencies. The respondent submits that Dr. Suddaby relied on the applicant’s self report and the evidence provided to him by the applicant’s representative. The respondent submits that Dr. Suddaby went against the direction of the Guides.

34Dr. Suddaby, however, testified that he reviewed the s.44 Catastrophic Impairment Determination report by Ms. Deanne Evans, occupational therapist, prior to his second assessment of the applicant in March 2022. Ms. Evans assessed the applicant in the applicant’s home on September 11, 2020. According to Ms. Evans, the applicant demonstrated poor immediate and delayed recall, and she was observed to often seek clarification on what was being asked. Ms. Evans also noted that the objective of her assessment was to outline the applicant’s functional abilities and report her own observations¹¹. I accept that Dr. Suddaby did rely on the observations of others in arriving at his conclusion.

35I also found the testimony from the applicant’s adult daughter to be persuasive. Her testimony corroborated and shed light on the applicant’s self-reported functional limitations. While I recognize that the applicant’s daughter is not necessarily an impartial witness, I accept her testimony with regards to her observations of the applicant pre- and post-accident, the impact the applicant’s functional limitations have had on her daily life since the accident, and the degree of support that the applicant continues to require.

36To summarize, I am satisfied that Dr. Suddaby did not solely rely on the applicant’s own self-report in arriving at his conclusions. I am also persuaded by his explanation for the applicant’s symptom magnification as an actual symptom of her mental health condition. The oral testimony from the applicant and witnesses confirm that the applicant continues to have many functional limitations due to mental or behavioural issues as a result of the accident.

Adaptation, or deterioration or decomposition in work or work like setting (AD)

37I find that the applicant has a marked impairment in the domain of adaptation.

38The Guides define impairment in adaptation as the repeated failure to adapt to stressful circumstances, in the face of which: the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate or have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.” By definition, an impairment in adaptation affects the ability to function across all activity areas.¹²

39Prior to the accident, the applicant was doing well at work, as evidenced by her work performance appraisals and the yearly bonuses she was awarded in 2014 and 2015¹³. The applicant testified that she has not been able to return to any type of work or many of her day-to-day activities since the accident. According to Ms. Evans’ report, and the testimony of the applicant and her daughter, the applicant continues to require assistance from her family for day-to-day tasks, housekeeping, and household maintenance. The applicant reported anxiety when driving, especially in bad weather and on busier roads, and her social interactions have been greatly limited compared to pre-accident levels.

40According to Ms. Evans, the applicant, and the applicant’s daughter, the applicant’s mood and lack of energy limits her ability to complete any task. Ms. Evans went so far as to comment that the applicant has not adapted well to her current situation and spends much of her time at home.

41Dr. Suddaby testified that the applicant’s pre-existing personality disorder made her vulnerable to maladaptation to injury. That, combined with her pre-existing depression and anxiety, triggered her post-traumatic stress disorder and the new onset of chronic pain. According to Dr. Suddaby, the applicant’s dependent personality disorder is what has undermined her ability to adapt after the accident. The accident also triggered her pre-existing major depression that had been in remission until the accident.

42Dr. Suddaby testified that the applicant’s ability to drive her car and sit for a two-hour interview did not translate into the ability to work. The applicant avoided making decision, and she required assistance completing tasks or they just did not get done. Dr. Suddaby testified that the applicant has a poor capacity to adapt as a result of her somatic symptom disorder, and she has not been able to return to any type of work since the accident.

43The applicant’s daughter testified that she does not know how her mother could return to work. She could not manage sitting at a desk all day, typing, making phone calls, maintaining a set schedule, or interacting with others. The applicant’s daughter also testified that she is constantly having to repeat herself to the applicant because of the applicant’s inability to concentrate and focus.

44Ms. Evans commented regarding the applicant’s poor memory recall and her frequent need for instruction clarification as well. She observed the applicant to be visibly emotional throughout her assessment, which is something that Dr. Suddaby, Dr. Ricci, and Dr. Frey¹⁴ also observed.

45Dr. Suddaby testified that the applicant is unable to adapt to any stressful circumstances and has a tendency to withdraw, even at home. His testimony was corroborated by both the applicant and her daughter. They testified that the applicant avoids stressful situations and that she becomes easily overwhelmed after initiating tasks at home.

46The applicant’s daughter testified that the applicant’s motivation and functional tolerances vary considerably from one day to the next. She also testified that the applicant is not able to maintain a set schedule or routine. She has a poor sleep pattern, and often does not even come out of her room until late morning.

47I am persuaded by the testimony and reports of Dr. Suddaby, the report from Ms. Evans, and the testimony from the applicant and her daughter with respect to the applicant’s ongoing inability to adapt. The applicant becomes highly emotional when under stress, and her reaction is to avoid such situations. I find that as a result, the applicant’s impairment level significantly impedes useful functioning with respect to adaptation.

Activities of daily Living (ADLs)

48I find that the applicant has a moderate impairment with respect to activities of daily living.

49The 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 to 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. “What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions”.¹⁵

50Prior to the subject accident, the applicant testified that she worked full-time as a financial advisor at RBC, raised her three children on her own as a single mother since she was divorced in 2008, and was financially independent. She performed the vast majority of the household chores, including all of the cooking, cleaning, grocery shopping, laundry, and grass cutting. She was actively involved with her church, was quite social, and gathered for parties with friends on weekends.

51The evidence also shows that since the accident the applicant:

a. Engages in avoidant behaviours because of her pain, depression, and anxiety, which has impacted her ability to engage in self-care and socialize the way she used to.

b. Would drive herself to visit her daughter who lives about 30 minutes away on a monthly basis.

c. Attends church most Sundays and will either drive herself or have a friend drive her there.

d. Goes grocery shopping once or twice each week, either by herself or with friends.

e. Makes simple meals like a sandwich, salad, chicken, or microwavable items.

f. Showers and takes care of her personal needs without assistance.

g. Regularly communicates with family and friends locally and abroad by phone and through video chat without assistance.

h. Does some laundry and gardening, but only when she is having a good day. Otherwise, her daughter does it or it does not get done.

52In March 2022, Dr. Suddaby reported that the applicant’s son had moved out of the family home and the applicant’s daughter was very much contributing to managing all of the household tasks and food preparation for the applicant. This was corroborated by both the applicant and her daughter in their oral testimony. Dr. Suddaby also reported that the applicant was spending up to 16 hours in her room each day, but not watching television or on her phone. She was not doing anything purposeful, and she had no hobbies. He noted that the applicant only visited with a few friends on occasion. She went walking at the mall with a friend to help her lose weight, but not for more than an hour or so¹⁶.

53In September 2020, Ms. Evans reported that the applicant demonstrated the functional abilities and tolerances to independently complete her self-care routines. She found the applicant to be groomed, and she was able to access the community and attend medical appointments independently. Ms. Evans reported that from a holistic functional perspective, the applicant’s reported ongoing pain, decreased physical activity tolerances, and her ongoing strained cognitive and emotional health may be negatively impacting her ability to consistently function and cope with day-to-day activities¹⁷.

54There are obviously conflicting reports as to the applicant’s level of function with respect to activities of daily living. I accept that the applicant may not socialize to the degree that she did prior to the accident or cook the large meals like she used to.

55I also can’t disregard the video surveillance from 2017 and 2019 and the oral testimony that was presented. There was undisputed evidence showing the applicant shopping at the mall and grocery store, driving independently, lifting and carrying heavy items, socializing with friends at their restaurant and at the mall, and doing some light yard/garden work at home. In the video surveillance footage, the applicant appeared well-dressed, well-groomed, and in no distress. That is not to say that the footage is representative of her typical day, but it does support a finding that the applicant has retained some, but not all useful function with respect to her activities of daily living.

Concentration, Persistence, and Pace (CPP)

56I find that the applicant has a moderate impairment in the domain of concentration, persistence, and pace.

57According to the Guides, this area of functioning refers to an individual’s capacity to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings. In activities of daily living, this may be reflected in terms of ability to complete everyday household tasks.¹⁸

58Dr. Suddaby reported and testified that the applicant struggled with attention, conversation, and that she had poor motivation to focus and participate in tasks. She struggled to make decisions, and she deferred financial decisions to others.¹⁹

59Ms. Evans reported that the applicant’s self-report was that she had limited concentration for television watching and an inability to read or grasp the storyline of a television show or book. On observation, however, Ms. Evans indicated that the applicant was able to maintain her attention during discussions, respond appropriately to questions, complete questionnaires, and focus to listen to instructions. At the same time, however, Ms. Evans observed that the applicant had limited memory recall and difficulty with simple math facts²⁰.

60The applicant’s daughter testified that some days her mother might be active for 2 to 3 hours, and other days she is not active at all. She stays with her mother to provide support several days each week. The witness testified that she observes the applicant trying to help around the house when she feels motivated to do so, but then always winds up in more pain and is less functional the next day. That leads to further task avoidance.

61The evidence does support that the applicant has been able to attend and participate in numerous medical assessments since the time of the accident and complete psychometric testing. Her level of concentration has been observed to be variable, but the surveillance video footage shows an ability to initiate tasks such as grocery shopping, exercising at a gym with a personal trainer, and driving a vehicle to and from a set destination, at least on certain days.

62While I accept the applicant’s inability to complete many day-to-day tasks at home without assistance, I find that her residual level of functioning with respect to concentration, persistence, and pace is moderately impeded. That is to say that her impairment level in this domain is compatible with some, but not all useful functioning.

ORDER

63I find that on a balance of probabilities, the applicant sustained a catastrophic impairment as a result of the accident.

Footnotes

1. 1Exhibit 7 – applicant’s brief pages 1023-1024.
2. 2Exhibit 18 – applicant’s brief pages 404-422.
3. 3Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571, para 30.
4. 4Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993, Chapter 14 (criterion 8).
5. 5Guides, at s. 14.3, page 294. The full domain name for “Adaptation” is actually: “Deterioration or decompensation in work or work like settings.”.
6. 6Exhibit 15 – applicant’s brief, starting at page 910.
7. 7Exhibit 135 – respondent’s brief, starting at page 142.
8. 8Exhibit 128 – Respondent’s brief, starting at page 1588.
9. 9Exhibit 129 – Respondent’s brief, page 957.
10. 10Applicant’s brief, page 981.
11. 11Respondent’s brief, starting at page 221.
12. 12Guides, page 294.
13. 13Applicant’s supplementary brief, pages 142-143.
14. 14Exhibit 127 – Respondent’s brief, starting at page 299.
15. 15Guides, page 294.
16. 16Exhibit 15 – applicant’s brief, starting at page 910.
17. 17Respondent’s brief, starting at page 210
18. 18Guides, page 294.
19. 19Applicant’s brief, page 947.
20. 20Exhibit 115 – Respondent’s brief, page 221.