Licence Appeal Tribunal File Number: 21-000574/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:
Ajmal Anwar
Applicant
and
Travelers Insurance
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Muhammad Aftab Alam, Counsel
For the Respondent:
Jane Cvijan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ajmal Anwar (“the Applicant”) was involved in an automobile accident on December 30, 2016, and sought benefits from Travelers Insurance (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016). The Respondent denied the Applicant’s claim that he sustained a catastrophic impairment as defined in section 3.1(1)4 of the Schedule (“criterion 4”). The Applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.
ISSUES
2The issue in dispute for this hearing is:
i. Did the Applicant sustain a catastrophic impairment as a result of the accident, pursuant to criterion 4 in section 3.1 of the Schedule?
RESULT
3I find that the Applicant has not sustained a catastrophic impairment as a result of the accident.
BACKGROUND
4The Applicant was the front seat passenger of a vehicle which struck a concrete guard rail on the highway and was then struck by a vehicle in a perpendicular fashion. The violent accident resulted in the death of the Applicant’s twin brother, who was a rear-seat passenger. The Applicant was initially transported to hospital by ambulance, but later airlifted to another hospital due to the severity of his injuries.
5The parties agree that the Applicant sustained a traumatic brain injury (“TBI”) as a result of the accident. A CT scan from the date of the accident showed an intraventricular hemorrhage within the occipital horn of the right lateral ventricle.
6At issue is the extent of the TBI injury suffered by the Applicant. Specifically, the level of impairment caused by the TBI and whether it meets the criteria for a catastrophic impairment.
ANALYSIS
7The Applicant claims a catastrophic impairment pursuant to criterion 4. This criterion involves a two-part test. First, the Applicant must have sustained a traumatic brain injury that shows positive findings on a medically recognized brain diagnostic technology indicating intracranial pathology that is as a result of the accident such as intracranial haemorrhages. The parties agree that the Applicant meets the first part of the test.
8The second part of the test, as it applies to the Applicant’s case, is whether the TBI, when assessed in accordance with the Extended Glasgow Outcome Scale (“GOS-E”), results in a rating of Lower Moderate Disability (“Lower MD”), more than one-year following the accident.
9To put it simply, the Applicant submits that he meets the criteria for a catastrophic impairment according to the Criteria-4 Catastrophic Assessment Report by Dr. I. Kay, physician, and D. Rogozinsky, occupational therapist, dated May 6, 2020 (“the Rogozinsky report”), the Catastrophic Impairment Assessment Report by Dr. Kurzman, dated July 30, 2020 (“the Kurzman report”), and other records such as the Psychiatric Catastrophic Determination Assessment Report by Dr. F. Yaroshevsky, psychiatrist. Whereas the Respondent submits that the Applicant does not meet the criteria according to the report by Dr. C. West, neuropsychologist, dated January 21, 2021 (“the West report”), and that the Applicant’s reports fail to comply with the Schedule.
10I agree with the Respondent and find the Rogozinsky report and the Kurzman report to be non-compliant with the Schedule and prefer the opinion of Dr. West. As a result, I conclude that the Applicant did not suffer a catastrophic impairment as a result of the accident.
Abdi v. TD General Insurance Company (“Abdi”)
11The parties agree that the jurisprudence in Abdi v. TD General Insurance Company 2021 CanLII 127474 (ONLAT) and Abdi v. TD General Insurance Company 2022 CanLII 11153 (ON LAT) (together, “Abdi”) is applicable to this hearing. In Abdi, a GOS-E assessment was administered by an occupational therapist, and reviewed by a neuropsychologist, the same Dr. Kurzman as in this case. Upon review of the corresponding GOS-E assessment report and another neuropsychologist’s report, Dr. Kurzman prepared an executive summary which concluded that the applicant in Abdi sustained a Lower Severe Disability rating.
12In Abdi, the Tribunal concluded that the GOS-E assessment must be administered by a physician who is a general practitioner or a neuropsychologist. The Adjudicator agreed that the GOS-E guidelines state that the test is deliberately detailed to be used by a non-specialist in addition to a neuropsychologist. The Adjudicator further concluded that a “non-specialist” is a general practitioner, and not another healthcare provider such as an occupational therapist. The reason being that the GOS-E requires further consideration for the effect of a head injury versus the effects of other injuries, and that this consideration requires judgment, or an opinion on causation, that is outside of the scope of an occupational therapist. As a result, and in addition to other factors specific to that dispute, the Tribunal gave the executive summary report no weight because it failed to comply with the Schedule and, instead, preferred the opposing report, which was completed by the same Dr. West as in this case.
13I agree with the Adjudicator in Abdi and for the following reasons, find that the Applicant’s GOS-E assessment conducted by an occupational therapist and reviewed by a neuropsychologist holds no weight because it is not compliant with the Schedule.
The Yaroshevsky, Rogozinsky, and Kurzman reports fail to comply with the Schedule
14Section 45(2) of the Schedule provides 3 rules for determining whether an insured person suffers a catastrophic impairment. They are:
An assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician, but the physician may be assisted by such other regulated health professionals as he or she may reasonably require;
Despite the first rule, if the impairment is a TBI only, the assessment or examination may be conducted by a neuropsychologist who may be assisted by such other regulated health professionals as he or she may reasonably require; and
If a Guideline specifies conditions, restrictions or limits with respect to the determination of whether an impairment is a catastrophic impairment, the determination must be made in accordance with those conditions, restrictions and limits.
15As noted by the Respondent, the Applicant’s catastrophic impairment reports do not comply with section 45(2)(2) of the Schedule. Section 45(2)(2) restricts the administration of GOS-E assessments to neuropsychologists, who may be assisted by such other health professionals, as reasonably required.
16I place no weight upon the report by Dr. Yaroshevsky, dated March 29, 2021 because it included no involvement of a neuropsychologist or a GOS-E assessment. Having a psychiatrist complete the assessment is contrary to section 45(2)(2) of the Schedule. Additionally, Dr. Yaroshevsky’s report includes no evidence that a GOS-E assessment was conducted. Instead, it appears that Dr. Yaroshevsky simply listed the GOS-E categories and assigned one to the Applicant based on other psychometric tests. Given its failure to comply with the basic requirements of the Schedule and the GOS-E, I assign no weight to the Yaroshevsky report dated March 29, 2021.
17Similarly, I attribute no weight to the Rogozinsky report and the Kurzman reports due to their failure to comply with the basic requirements of the Schedule and the GOS-E. Similar to Abdi, a GOS-E assessment was conducted by an occupational therapist, culminating in the Rogozinsky report, which was then provided to Dr. Kurzman for comment. While Dr. Kay, physician, endorsed the findings in the Rogozinsky report, the examination appears to have been conducted entirely by OT Rogozinsky – as noted by Dr. Kurzman in the conclusion of the July 30, 2020 report. Dr. Kay’s involvement, according to the report, was limited solely to the completion of the OCF-19.
18I find that being provided a report from an assessment is unlike conducting an assessment. Similarly, I find that conducting an assessment and issuing an independent report to be vetted by a neuropsychologist, is contrary to the spirit of section 45(2)(2) of the Schedule.
19It appears that Dr. Kurzman had no involvement in OT Rogozinsky’s assessment, or examination of the Applicant. Dr. Kurzman stated in the July 30, 2020 report that he had assessed the Applicant previously, was provided the Rogozinsky report, and is in agreement with it and the conclusions authored by Dr. Kay and OT Rogozinsky. There is no information that suggests that Dr. Kurzman conducted the assessment or directed OT Rogozinsky’s examination of the Applicant. In fact, Dr. Kurzman is only mentioned in the Rogozinsky report in the document review section, as Dr. Kurzman issued a prior report, dated September 10, 2019. Dr. Kurzman did not conduct a GOS-E for the report dated September 10, 2019 and that report never addressed whether the Applicant sustained a catastrophic impairment as a result of the accident.
20Vetting the assessment by occupational therapist Rogozinsky is unlike administering the assessment. The Applicant suggests that OT Rogozinsky did not conduct the assessment because she provided no opinion on causation and only conducted the GOS-E, which was later vetted by Dr. Kurzman. I disagree. Occupational therapist Rogozinsky specifically concludes in the report that, based on the findings of the assessment, that the Applicant meets the criteria for a catastrophic designation. To me, it is clear that OT Rogozinsky concludes that the Applicant’s presentation is as a result of the subject accident, otherwise he would not meet the criteria for a catastrophic determination – which requires that the catastrophic injury/injuries are as a result of a motor vehicle accident.
21The Applicant has provided no other medical opinion that he sustained a Lower MD as a result of the TBI sustained in the subject accident. When combined with my finding that the Rogozinsky, Kurzman, and Yaroshevsky reports fail to comply with the Schedule, it follows that the reports would hold no weight when considering whether the Applicant sustained a catastrophic impairment as a result of the accident.
Dr. West’s report is preferred because it complies with the Schedule
22Dr. West is qualified to practice within the area of neuropsychology and personally assessed the Applicant in preparation of the report dated January 21, 2021. The assessment was started on August 5, 2020 but ended before completion due to the Applicant’s complaints of fatigue and headache. The Assessment was continued on November 27, 2020 and Dr. West concluded that the Applicant does not have a GOS-E score low enough to qualify for a catastrophic impairment.
23I agree with Dr. West’s conclusion that the Applicant’s ability to drive and continued operation of a motor vehicle effectively negates any prospect of him meeting the criteria for a Lower MD. Dr. West noted that the Applicant met the first part of the test for criterion 4. Dr. West stated that the Applicant sustained polytrauma in the accident, including a significant closed-head injury which clearly indicates the presence of intracranial pathology. Upon completion of the assessment, Dr. West opined that the Applicant evinced a positive recovery thus far, highlighting that the Applicant continues to engage in the demanding neurocognitive and mental health task of driving a motor vehicle. To Dr. West, this behaviour exhibits a level of neurocognitive functioning that is quite high and it would be “not at all reasonable” to suggest that the Applicant is experiencing brain impairment that is so severe and debilitating that it is essential that someone is present every day for some activities of daily living. Further, Dr. West noted that no regulated health professional has opined that the Applicant was demonstrating neurocognitive symptomology, sequalae, or impairment of sufficient clinical significance that it merited informing the Ministry of Transportation, or his primary care physician in order to suspend his driving privileges.
24Dr. West’s conclusions are reasonable and supported by the other evidence. For example, Dr. West focused on the Applicant’s ability to drive and how that exhibited functionally that is incompatible with a Lower MD, especially when assessing access to the community. Whereas the Rogozinsky report also notes that the Applicant continues to drive following the accident, despite some ongoing anxiousness, but fails to appreciate that this provides the Applicant with access to the community. Instead, the Rogozinsky report oddly concluded that the Applicant requires constant supervision while out in the community, despite his ability to drive on his own.
25I find it compelling that Dr. West focused on the impairments as a result of the TBI sustained in the accident. Dr. West was clear in that a GOS-E assessment must address the neurocognitive dysfunction, and not other factors such a physical/somatic, or psychological or emotional factors. In contrast, the Rogozinsky and Yaroshevsky reports regularly discuss the Applicant’s impairments based on a multitude of factors, including impairments resulting from physical and psychological injuries. I agree with Dr. West in that a GOS-E assessment must be conducted with consideration only for impairments resulting from a TBI, rather than other factors.
26Having found no compelling opinion that concludes that the Applicant sustained a Lower MD as a result of the accident, it follows that he has not met his onus to demonstrate that he sustained a catastrophic impairment pursuant to criterion 4.
CONCLUSION
27The Applicant has not sustained a catastrophic impairment as a result of the accident.
Released: June 8, 2023
Brian Norris
Adjudicator