Licence Appeal Tribunal File Number: 21-009325/AABS
In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Andrew De Sousa Araujo
Applicant
and
Intact Insurance
Respondent
DECISION
ADJUDICATORS:
Taivi Lobu
Michael Beauchesne
APPEARANCES:
For the Applicant:
Frank Burns, Counsel
For the Respondent:
Dwain Burns, Counsel
Court Reporter:
Maureen Biscak
Heard by Videoconference:
September 1-2, and 6-9, 2022
OVERVIEW
1Andrew De Sousa Araujo, the applicant, was involved in a motor vehicle accident on June 21, 2017, and sought benefits and a catastrophic impairment designation under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). He was denied certain benefits and a catastrophic designation by Intact Insurance, the respondent, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
a. Has the applicant sustained a catastrophic impairment as defined by section 3.1(1)8 of the Schedule? (Criterion 8)
b. Is the applicant entitled to $5,800.02 for occupational therapy proposed by Beverlee Melamed, OT, in a treatment plan/OCF-18 dated September 30, 2019?
c. Is the respondent liable to pay an award under s. 10 of Reg 664 because it unreasonably withheld or delayed payments to the applicant?
d. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not catastrophically impaired.
4The applicant is not entitled to the occupational therapy treatment plan.
5The respondent is not liable to pay an award under s. 10 of Reg 664.
6No interest is payable.
ANALYSIS
7The applicant suffered life-threatening injuries in a motorcycle accident, and nearly lost his left leg. He was in his twenties at the time. As a result of the extreme physical trauma, the applicant had lengthy hospitalizations and required multiple surgeries. He now lives with significant pain, compromised use of his leg and hip, and compromised stability and balance. His orthopaedic surgeon has given a challenging prognosis for his left hip in the years ahead (arthritis, increased pain, deterioration, and a future need for a complicated hip replacement).
8At the time of the accident, the applicant was apprenticing as a tattoo artist. One or two years prior to the accident, the applicant had been working as a forklift truckdriver. The applicant continues to live with his girlfriend, who has been with him since about four years before the accident.
9The applicant has exhausted the $65,000 pre-catastrophic limits for rehabilitation and medical benefits under section 18(3)(a) of the Schedule. Catastrophic impairment status under the Schedule would open up a new level of benefits for the applicant.
Does the Applicant Have a Catastrophic Impairment?
10The applicant’s life has dramatically changed as a result of the 2017 motorcycle accident. He is not the same person he was prior to the accident and faces major challenges and limitations which he previously did not have.
11The issue before the Tribunal is whether the applicant has demonstrated, on a balance of probabilities, that his accident-related impairment is catastrophic as defined by the Schedule. The panel finds that he has not.
Catastrophic Impairment Determination Under the Schedule
12The applicant’s catastrophic impairment determination has been made under section 3.1(1)8 of the Schedule (“Criterion 8”). Criterion 8 encompasses impairment resulting from accident-related mental or behaviour disorders: it does not include physically based impairments. If an impairment is not a result of a mental or behavioural disorder, it is not factored into the impairment level for a Criterion 8 catastrophic determination.
13Criterion 8 relies on the American Medical Associations’ Guides to the Evaluation of Permanent Impairment 4th edition, 1993 (“Guides”). The AMA Guides set out four functional domains: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, and pace and (4) adaptation (deterioration or decomposition in work or work like settings). There are four levels of impairment within each domain: no impairment, mild impairment, moderate impairment, marked impairment and extreme impairment.
14An impairment is catastrophic under Criterion 8 of the Schedule if, as a result of a mental or behavioural disorder, a person has an “extreme” level of impairment in any one of the four functional domains or has a “marked” level of impairment in at least three of the four functional domains.
Positions of the Parties
15The applicant submits that he has a marked level of impairment in three of four domains of function: activities of daily living, social function, and adaptation (work functioning), and that these impairments are the result of mental and behavioural disorders arising from the accident. The applicant relies on catastrophic impairment assessments of psychiatrist Dr. Z. Waisman of May 2020 and July 2022, who has diagnosed the applicant with a major depressive disorder (moderate and nonpsychotic) and a somatic symptom disorder with predominant pain (moderate and persistent).
16Health professional evidence relied upon by the applicant includes assessments and reports from occupational therapists Ms. D. Ananthan and Ms. B. Melamed, 2018 to mid-2022; psychologist Dr. K. Zakzanis, 2019 (and 2022 addendum); psychologist Dr. A. Pillai from 2019 to mid 2022; psychiatrist Dr. J. O’Riordan, 2022; psychologist Dr. T. Toneatto, 2018; and orthopaedic surgeon Dr. P. Henry, 2019.
17The respondent submits that the applicant does not have any marked level of impairment as a result of an accident-based mental or behavioural disorder. With regard to the applicant's impairment levels, the respondent relies upon the section 44 insurer examinations of occupational therapist Mr. C. Wong, specifically CAT occupational therapy situational and in-home assessments carried out in December 2020, as well as surveillance evidence.
18The respondent contends that any accident-related functional impairment which the applicant has is physical in nature. In this regard, the respondent relies on a May 2021 CAT psychiatric assessment of Dr. L. Voruganti. In his section 44 insurer examination, Dr. Voruganti determined that applicant’s mental and behavioural condition is due to factors other than the MVA and that the applicant has no accident-caused mental or behavioural disorders.
19For purposes of assessing functional impairment levels, the panel will rely upon Dr. Waisman’s diagnosis of accident-related major depressive disorder (moderate and nonpsychotic) and a somatic symptom disorder with predominant pain (moderate and persistent).
20However, as will be discussed below, the panel finds that the applicant does not have functional impairment levels as required by Criterion 8. Accordingly, it is unnecessary for the panel to further consider the respondent’s position that the applicant does not have an accident-related mental or behavioural disorder.
Assessment of Impairment Levels Under Criterion 8
21As noted above, the AMA Guides set out four levels of impairment within each domain of functioning. The levels are explained in the Table below:
Area of functioning:
Class 1: No Impairment
Class 2: Mild Impairment
Class 3: Moderate Impairment
Class 4: Marked Impairment
Class 5: Extreme Impairment
Description:
No impairment noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some but not all useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning
22An impairment is catastrophic under Criterion 8 of the Schedule if, as a result of a mental or behavioural disorder, a person has an “extreme” level of impairment in any one of the four functional domains or has a “marked” level of impairment in at least three of the four functional domains. The onus is on the applicant to demonstrate this on a balance of probabilities.
23The applicant suffers significant pain as a result of his accident-injuries. The applicant referred the panel to the decision of the Court of Appeal in Pastore v Aviva, 2012 ONCA 642, wherein the Court considered pain-based issues under Criterion 8. At para 68, the Court stated that where the mental disorder itself involves pain and includes pain associated with a general medical condition, it is reasonable to include pain from the general medical condition to the extent that such pain is connected with the diagnosed mental disorder.
24Dr. Waisman’s diagnosis of the applicant includes somatic symptom disorder with predominant pain (moderate and persistent). Accordingly, for the purpose of determining impairment levels, the panel will include pain-related-restriction.
Area of Function: Activities of Daily Living
25The AMA Guides describe “activities of daily living” as including activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities. The Guides state:
In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
26The applicant has significant physically-based restriction. For example, he cannot engage in his physically based pre-accident sports and recreational activities. With regard to home maintenance tasks such as grass cutting, snow removal, the applicant reported in his 2019 assessment with Dr. Zakzanis that he wants to do this but could not because it was physical, so he had others do it. He told Mr. Wong that he was afraid of falling when carrying out such activity, but he does do winter salting. Mr. Wong observed that the applicant did not do laundry, heavy cleaning, pet care and garbage removal. His report noted that the applicant was concerned of slipping and falling if he were to attempt the garbage/recycling removal, mopping, or laundry task, noting that the applicant did not feel safe carrying a mop bucket, garbage or recycling up and down stairs, and that he was unable to bend to clean the bathtub.
27Limits caused by balance issues or the applicant’s physical ability to crouch, kneel, or carry heavy objects, do not factor into the Criterion 8 assessment as such.
28The applicant relied upon Dr. Waisman’s catastrophic impairment assessments to demonstrate that the applicant has a Class 4 marked impairment in his activities of daily living.
29The panel having considered the information before Dr. Waisman in both his 2020 and 2022 assessments, and the conclusory nature of his analysis, is unable to place significant weight on Dr. Waisman’s conclusion that “the effectiveness, independence, and sustainability of Mr. Araujo’s ability to perform activities such as self-care, communication, travel, sleep, social and recreational activities” is significantly impeded because of a Criterion 8 impairment.
30There have been two sets of assessments of the applicant’s daily living functions. One was from a November 2018 in-home assessment for attendant care by the applicant’s occupational therapist at the time, Ms. D. Ananthan. The second was an in-home and situational assessment occupational therapy assessment conducted as a section 44 insurer examination over the course of two days in December 2020 by Mr. Wong. Dr. Waisman did not appear to have considered Mr. Wong’s assessment reports.
31Dr. Waisman’s assessments in both 2020 and 2022 under “activities of daily living” state that he “reviewed the OT report of Ms. Ananthan dated June 3, 2019” He then has set out a detailed paragraph from Ms. Ananthan’s report describing her assessment of the applicant’s function. While the passage is attributed to a June 3, 2019, report, it appears to have been taken verbatim from Ms. Ananthan’s report of December 6, 2018, and was based on information from the in-home assessment of November 13, 2018 (17 months post accident).
32Other than the information from Ms. Ananthan, Dr. Waisman did not set out any other formal observational evidence of the applicant’s daily living when assessing the impairment level.
33The panel does not accept that Ms. Ananthan’s in-home assessment from 2018 provides an up-to-date basis for assessing the applicant’s post-accident impairment level. Ms. Melamed testified at the hearing that the applicant was still recovering from his physical injuries in 2019. In addition, Ms. Melamed’s report states that the applicant “has a driving licence but cannot drive due to his injuries, pain, reduced tolerance and anxiety.” However, it was clear that by the time of the hearing, the applicant had purchased two cars and was driving. Ms. Ananthan’s assessment in 2018 states that the applicant needed assistance in bathing. In contrast, in his December 2020 in-home assessment, Mr. Wong observed that the applicant remained independent in all of his self-care activities, although slower in pace and with some pain.
34Dr. Waisman’s 2022 “Review of Documentation,” presented segments of records from a dozen health professionals, characterizing these as “records that are most relevant to psychiatric assessment.” Although Mr. Wong’s direct observations in his situational and in-home assessments, which lasted six hours over two days in December 2020, have direct bearing for assessing the applicant’s functional abilities, his assessments are not listed by Dr. Waisman. The panel finds this to be a material omission.
35While Dr. Waisman provides a lengthy segment of an April 21, 2022 report of the applicant’s current occupational therapist, Ms. Melamed which includes selective, brief comments from Mr. Wong’s assessments, such comments are not representative of Mr. Wong’s full findings relevant to the applicant’s function.
36As well, under the section for activities of daily living, Dr. Waisman set out a lengthy excerpt (one page) from Ms. Melamed. This appears to largely be in the nature of an interpretative assessment by Ms. Melamed employing information from various sources, including her conversations with the applicant and the applicant’s family physician over the years. She references the applicant’s confusion, lack of motivation, concerns for his future, issues with goal setting, pain and depression. She also speaks of general research findings with regard to traumatic injury, chronic pain and daily life. The information which Ms. Melamed discusses is broad-ranging but it is not clear what Ms. Melamed has factored into her impressions and concerns about the prospects for the applicant’s future. Other than quoting her report at length, Dr. Waisman does not identify how he relies on Ms. Melamed’s report in arriving at his conclusion.
37In the segment of Ms. Melamed’s report highlighted by Dr. Waisman for the “activities of daily living” section, Ms. Melamed states that the applicant has “developed an increased dependency with drugs to alleviate the severity of his depression, post traumatic stress disorder and anxiety as well as to try and cope with his pain, and referenced research about traumatic injury, drug abuse and ensuing symptoms. At the hearing however, the applicant denied any issues with drug dependence. This was directly supported by the testimony of his partner and is also consistent with Dr. O’Riordan’s 2021 psychiatric consult and the 2022 psychological assessment of Dr. Pillai.
38It is not possible to discern from Dr. Waisman’s analysis how the information about drug dependence in Ms. Melamed’s report factored into Dr. Waisman’s assessment of the applicant’s impairment level. The panel was not referred to any further evidence or medical records on this issue and Dr. Waisman did not testify.
39Sleep is among the factors Dr. Waisman considered. In both 2020 and 2022, Dr. Waisman reports the applicant as sleeping two hours per night. However, this differs substantially with all other reports. For example, Dr. Pillai’s 2022 report references the applicant sleeping five to eight hours on good nights; the applicant’s occupational therapist referenced a report of six hours of sleep; and Mr. Wong in his December 2020 OT assessment referenced approximately five hours of broken sleep.
40As previously noted, Dr. Waisman did not appear to have reviewed Mr. Wong’s reports which as noted were based on six hours of direct assessment and observation in-home and in a situational assessment. The reports contained positive information about the applicant’s function. For example, Mr. Wong observed in his situational assessment that the applicant was able to organize and plan tasks, and complete tasks with minimal prompting, cueing or assistance. This is supported by other evidence before the panel – such as the fact that since the accident, the applicant has been able to make and carry out major purchases, including a house. Mr. Wong also observed the applicant to be dressed appropriately, be independent in the community, have appropriate interactions with people, drive to a store, walking with the help of a hiking pole and carrying out purchase assignments. Mr. Wong did report that the applicant reports of reduced motivation to carry out activity and his social withdrawal, but he also documented applicant reports of his ability to manage finances and pay his bills, as well as activities including for example, visits with family members, going to the corner store, and swimming (pre-Covid).
41Such reports are also consistent with surveillance evidence presented at the hearing showing the applicant attending a fast-food outlet on his own, on consecutive days spending hours in a tattoo parlour some distance away and applying a tattoo on a client in the commercial setting.
42The panel acknowledges that Dr. Waisman provided a written comment stating that surveillance evidence which had been provided him, would not change his opinion. He referenced a statement from Dr. Pillai that the applicant was encouraged to volunteer at a friend’s tattoo parlour pursuant to therapeutic recommendations. However, this is limited assistance to the panel in the absence of information about how Dr. Waisman arrived at his assessment of degree of impairment.
43Lastly, other relevant evidence does not appear to have been before Dr. Waisman. For example, in a May 13, 2021, psychiatric consult on referral from the applicant’s family physician, the applicant had reported to Dr. O’Riordan that with regard to sleep, his night terrors had stopped. Dr. O’Riordan also noted that the applicant was not describing persistent major depressive symptoms, although he did describe periodic anxiety.
44Dr. Waisman provided a conclusionary analysis that the applicant has a marked impairment in activities of daily living. Dr. Waisman did not testify at the hearing and his analysis report did not show how he factored in information about the applicant when arriving at his conclusion about the applicant’s impairment level. This is important as there is significant evidence that speaks to the degree of impairment which has not addressed: information about the applicant’s ability to carry out self-care tasks, drug dependence (or non-dependence as the case may be), sleep, driving, activity in the community and so forth.
45When considering how the totality of the evidence about how the applicant’s activities of daily living are limited by mental or behaviour disorders (including pain-related concerns) the panel finds that the applicant has not demonstrated on a balance of probabilities that he has a Class 4 marked impairment based on mental or behavioural (or linked pain issue). The panel finds that the evidence shows that the applicant has some, but not all useful functioning under Criterion 8. This is a Class 3 moderate level of impairment.
Area of Function: Concentration, Persistence and Pace
46The factors to consider under this domain are:
Concentration, persistence and pace needed to perform many activities of daily living, including task completion. Task completion refers to the ability to sustain focussed attention long enough to permit the timely completion of tasks commonly found in activities of daily living or work settings…Strengths and weaknesses in mental concentration may be described in terms of frequency of errors, the time it takes to complete the task and the extent to which assistance is required to complete the task.
47Dr. Waisman found a Class 3 moderate in this domain. The Tribunal has no reason to interfere with that determination.
Areas of Function: Social Functioning; Adaptation
48The Schedule requires the applicant to show marked impairment in at least three areas of functioning. Dr. Waisman does not find that the applicant has an extreme impairment in either the domain of Social Functioning or Adaptation; nor has the applicant made such an argument to the panel.
49As the panel has found that the applicant does not have a marked impairment in two of the four areas of function, an analysis of the applicant’s level of impairment in the domains of “Social Functioning” and “Adaptation” is not needed.
Conclusion – Catastrophic Impairment
50The applicant has not demonstrated that he suffered three marked impairments or one extreme impairment under Criterion 8 and therefore is not catastrophically impaired under the Schedule.
ISSUE 2: Occupational Therapy Treatment Plan
51Section 18(3)(a) sets a $65,000 maximum of benefits payable for medical, rehabilitation and attendant care for an insured persons who is outside the Minor Injury Guideline but not determined to be catastrophic. As the maximum amount of benefits have already been paid, the applicant is not eligible for the occupational therapy services proposed in the plan dated September 30, 2019.
ISSUE 3: Award
52Pursuant to section 10 of Regulation 664, an award of up to 50% of the amount to which the person is entitled at the time of the award can be ordered if an applicant can demonstrate that the insurer unreasonably withheld or delayed the payment of benefits.
53As the applicant was not successful in meeting the burden of proof, there is no basis upon which to consider an award.
ORDER
54The application is dismissed.
Released: April 24, 2023
Taivi Lobu
Adjudicator
Michael Beauchesne
Adjudicator