Guschewski v. Pembridge Insurance Company, 2023 CanLII 52308

Citation: Guschewski v. Pembridge Insurance Company, 2023 ONLAT 22-006408/AABS + 22-006802/AABS + 22-006803/AABS

Licence Appeal Tribunal File Number: 22-006408/AABS +22-006802/AABS

• 22-006803/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:

Christina Guschewski

Applicant

and

Pembridge Insurance Company

Aviva Insurance Canada

Respondents

DECISION

ADJUDICATOR:

Sandra Driesel

APPEARANCES:

For the Applicant:

Christina Guschewski, Applicant

For the Respondent Pembridge:

Erin Cushnie, Adjuster

Jennifer Griffiths, Counsel

For the Respondent Aviva:

Katherine Northcott, Adjuster

Cara Boddy, Counsel

Heard by Videoconference:

March 7–9, 2023

OVERVIEW

1Christina Guschewski, the applicant, represented herself at this hearing. She has been involved in three motor vehicle accidents (“MVAs”) and she is seeking a determination that she is catastrophically impaired (“CAT”) as a result of all three.

2The MVAs occurred on the dates shown below and she has filed a LAT application for each one. There is more than one insurer (“respondent”). For the first two MVAs, the respondent is Pembridge Insurance Company (“Pembridge”) and for the third MVA, the respondent is Aviva Insurance Canada (“Aviva”).

3The matters were scheduled to hearings as follows:

	MVA Date	Respondent	Tribunal File No.	Hearing Scheduled
(a)	November 29, 2013	Pembridge	22-006408/AABS	March 7–9, 2023
(a)	February 7, 2014	Pembridge	22-006802/AABS	March 7–9, 2023
(b)	March 20, 2017	Aviva	22-006803/AABS	March 21–23, 2023

(a) the applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

(b) the applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

4On the first day of this hearing, on consent of all parties, it was determined that all matters should be heard together. The details of this decision, including instructions to vacate the March 21, 2023 hearing, is included in an order of the Tribunal released March 10, 2023 (a copy of this order is attached as appendix A). This order also dealt with:

i. The applicant’s submissions for the hearing (specifically the lack of a hearing brief).

ii. An objection to hear the matter of catastrophic impairment (“CAT”) before Aviva’s section 44 examinations were complete.

ISSUE

5The issue in dispute as confirmed by the parties is:

i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

CATASTROPHIC IMPAIRMENT

6Unfortunately, the applicant’s submissions are not clear as to the criterion of impairment she is seeking. Her submissions suggest a possibility she believes she qualifies in more than one criterion but there is no specific reference provided. The following provides the applicant with an overview of catastrophic impairment entitlement and criterion on which different impairments may be determined.

7The Schedule sets out three monetary limits for entitlement to medical, rehabilitation and attendant care benefits. In this case the applicant has sought benefits pursuant to two different versions of the Schedule because of updates to the regulation that occurred after the date of her accident. A condensed overview of the benefits available by impairment category follows:

Schedule>	– Effective September 1, 2010			– Effective September 1, 2010 (including amendments effective June 1, 2016)
Benefit Coverage:	Minor	Non-CAT	CAT	Minor	Non-CAT	CAT
Medical and Rehab Benefits	$3,500 maximum	$50,000 maximum for 10 years	$1,000,000 maximum for life	$3,500 maximum	$65,000 (combined with attendant care) maximum for 260 weeks	$1,000,000 (combined with attendant care) maximum for life
Attendant Care	Not Available	$3,000 per month (maximum of $36,000) for up to 104 weeks post-MVA	$6,000 per month (with a maximum of $1,000,000) for life	Not available	$3,000 per month, for up to 260 weeks post-MVA	$6,000 per month for life

8A finding of catastrophic impairment is a designation that enables a higher availability of funds for treatment. Funds are not automatically given to an insured, rather payment of a benefit is made by the insurer when that benefit has been determined to be reasonable and necessary to treat the injuries the insured sustained as a result of an accident.

9The definition of a catastrophic impairment is set out in s. 3.1 of the Schedule. It includes clearly defined impairments such as a loss of sight in both eyes, loss of a limb, paraplegia or tetraplegia, or severe cognitive impairment. The Schedule incorporates different, external medical sources to determine whether an insured person is catastrophically impaired in one way or another. Relevant to this hearing, the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”), 4th edition, 1993 (or, as may be relevant to the March 2017 accident, the 6th edition, 2008) sets out test protocols and values to be assigned based on the test results for each impairment. The scores for the various impairments are added together in a non-linear manner to result in a Whole Person Impairment score (“WPI”) using tables in the AMA Guides. If a person’s WPI is 55% or more then the person is catastrophically impaired. If it is less, then the person is not.

10The WPI impairment may include mental/behavioural impairment. Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The AMA Guides set out the four spheres of functioning and the levels of impairment as represented in the chart below:

Area or Aspect of Functioning	Class 1: NO Impairment	Class 2: MILD Impairment	Class 3: MODERATE Impairment	Class 4: MARKED Impairment	Class 5: EXTREME Impairment
Activities of Daily Living	No impairment is 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
Social Functioning
Concentration, Persistence and Pace
Adaption (In a work-like setting)

11Catastrophic impairment assessments of WPI are, by their nature, multidisciplinary. Each practitioner assesses impairment in their discipline, be it physical, psychological, neurological, behavioural, etc. and assigns a score within the range set out in the AMA Guides. Those scores are then amassed and the WPI is calculated by someone qualified in doing the calculations.

12Lastly, catastrophic impairment is a legal definition and not a medical test, although the legal test involves consideration of medical evidence. The applicant has the burden of proving on a balance of probabilities that she is catastrophically impaired as a result of a MVA.

ANALYSIS

Catastrophic Impairment

The applicant’s position

13The applicant believes that she has suffered catastrophic impairment as a result of all the injuries she sustained between three different MVAs. She claims her impairment is an accumulative result of new injuries and/or an exacerbation of previous injuries by subsequent MVAs.

14The applicant recalls the 2013 MVA occurred while backing down the driveway, fleeing from her siblings, and consequently she drove into a ditch. She admits that she was able to return to work after this incident but did suffer some injuries, most notably that to her jaw which still causes her pain. She notes that she can only eat pureed foods because of her jaw pain. She notes that this MVA caused her to have a fear of cars so after this MVA she sometimes relied on others to drive her.

15The applicant has little recollection of the second MVA in 2014, only that she was struck from behind, that someone called for an ambulance, and she was then taken to the hospital. She notes she sustained back and knee injuries in this MVA and she still suffers pain even though she has had chiropractic and physiotherapy treatment. She notes that as a result of this MVA she could not go near cats and dogs as she could before, suggesting some kind of neurological injury sustained. She could not return to work and has not worked since this MVA.

16The applicant states that it is only through the review of the 2017 MVA accident report that she knows she was hit by a driver who ran a stop sign and that her car was written off. She notes that her chiropractor suggested she might have a concussion, but her family doctor did not agree. She reports that since this third accident she experiences memory issues, trouble sleeping, and she could not cope with things like trying to study for her online course.

The respondent Pembridge’s position

17Pembridge’s position is that the applicant has failed to meet the onus that her injuries are accident-related or reach 55% WPI, given she does not have any medical reports in evidence to support this. Pembridge notes the OCF-19 received from the applicant is incomplete. The OCF-19 was completed by Dr. Y. Meghory and fails to identify how a 55% WPI was determined and does not show any breakdown of impairments to calculate this finding. Pembridge notes the applicant has a long history of medical issues prior to any MVA of record, and as much as she does suffer from some medical and psychological issues, there is no professional opinion to relate them to any MVA or show that such issues lead to a determination that she is catastrophically impaired.

18Pembridge conducted many insurer’s examinations of the applicant, and the results of those examinations do not lead to the conclusion that the applicant has sustained any catastrophic impairment as a result of the subject MVAs of November 29, 2013, and February 7, 2014.

The respondent Aviva’s position

19Aviva’s position is that although they have not completed all CAT insurance examinations, the applicant has not met her onus to prove that she is catastrophically impaired. Aviva echoes Pembridge’s criticism of the OCF-19 completed by Dr. Meghory. As with Pembridge, Aviva has not found evidence to relate the applicant’s reported CAT physical or psychological impairments to her March 20, 2017, MVA.

20Aviva also submits the applicant has a significant pre-accident medical history, and she has failed to meet her onus to prove that she sustained CAT impairments as a result of her MVA(s).

THE APPLICANT’S EVIDENCE HAS NOT SUCCESSFULLY DEMONSTRATED SHE MEETS ANY CRITERION FOR CAT IMPAIRMENT:

The applicant’s evidence

21The applicant submitted one common OCF-19 dated November 4, 2021, for each LAT application that shows all three MVAs are responsible for her now being CAT. This form was completed by Dr. Meghory, her family physician since the mid 1980’s. I find the OCF-19 fails to provide any testing results or breakdown as to how the 55% WPI was determined. The OCF-19 did not identify whether the suggested catastrophic impairment can be related to the criteria for physical or mental/behaviour impairments, or a combination of such impairments.

22The applicant testified that her 55% WPI is a result of the following injuries sustained in a combination of all three MVAs, but she fails to identify if or how these injuries attribute to a catastrophic impairment in a particular criterion or domain:

i. Physical impairment: Back injuries; thoracic spine injury; rib injury; jaw injury; knee injury and chronic pain. She adds that she suffered severe burns while treating her injuries, which add to her MVA related impairments, again, the applicant has failed to show how this injury might contribute to a catastrophic impairment.

ii. Mental/Behaviour impairment: Stress and nervous conditions that affect her activities of daily living.

23The applicant presents as evidence pages from her personal journals that chronicle her injuries and evolving sequelae from what is in her opinion a result of the first MVA and the impact of the subsequent MVAs to date. She adds that the most supportive evidence is that of Dr. Meghory. She states that insurance examiners do not know her and therefore, are not capable of a correct diagnosis of her situation.

24While giving testimony, the applicant noted the names of several treatment providers that could provide support to her claim of CAT impairment, and she provided numerous clinical notes and records from them. I reviewed the documents provided in what became assembled as an “Applicant Hearing Brief” (I am appreciative of counsel for Pembridge’s best efforts to assemble the applicant’s documents that were submitted for the hearing without page numbers or index references). I was unable to find a single reference that the applicant was determined to be catastrophically impaired through any testing or assessments from a professional treatment provider. The doctors the applicant was most reliant on were:

i. Dr. Y. Meghory, family physician;

ii. Dr. M. Lehr, Chiropractor, who has been treating her physical injuries; and

iii. Dr. M. Grushka, Dentist, regarding her jaw injury.

Dr. Meghory, family physician

25In a letter submitted with the OCF-19 dated November 4, 2021, I find the doctor admits that he is not familiar with filling out the form, and that he has indicated her 55% WPI merely based on the fact that applicant was involved in three MVAs. This undermines the strength of the applicant’s CAT claim. Further, he goes as far as stating that he suggested the applicant obtain proper CAT assessments, but she claimed she could not afford to get them. Dr. Meghory did not administer any testing or assessments in accordance with the AMA Guides, and he failed to make any diagnosis of CAT impairment according to any specific criterion. I find Dr. Meghory’s evidence to be largely unhelpful to the applicant’s burden to demonstrate that she sustained a CAT impairment.

26In the doctor’s notes of August 12, 2021, he refers the applicant to Wilderman Medical Clinic regarding her claim of CAT impairment. On August 24, 2021, Dr. Wilderman responds to Dr. Meghory stating, “we contacted the patient, and she was not interested in the catastrophic assessment”. I find this undermines her claim of CAT impairment because she has avoided obtaining any evidence that might support her claim.

27In his notes of November 2015, Dr. Meghory writes that the applicant made no mention of any knee injury until July 8, 2015, after she claims to have hurt her knee on June 11, 2015. He later records that after reporting these dates in his records, the applicant provided him with evidence that she had attended Credit Valley Hospital on November 29, 2013, regarding pain to her knee as a result of the first MVA. Given Dr. Meghory’s admission, and the absence of any CAT assessment related to this injury, there is no medical evidence to support her claim of serious injury of her knee as a result of any MVA.

Dr. Lehr, Chiropractor

28The applicant testified that Dr. Lehr played the most significant role in treating her physical injuries. In his notes, Dr. Lehr states his understanding is that the applicant sustained injuries as a result of all three MVAs.

29From the medical records, it appears that the applicant has been seeing Dr. Lehr from at least March 30, 2016. His notes reflect that he was treating the applicant for physical ailments: headaches mostly on right side, and pain in her lower back, neck, eye, and her right shoulder and arm. It appears that until 2018 the applicant fails to mention any injury or problems with her jaw.

30On February 18, 2018, Dr. Lehr authored a letter to Dr. Meghory. He noted he was treating the applicant for physical injuries she reported to have suffered from a MVA on February 7, 2014. In this letter he questions the applicant’s “current mental status”. He notes that she reported to be in a second MVA following the one in 2014 that seemed to be a reaggravation of her neck, back and right knee pain. She reported having difficulties remembering simple things. She stated that she could not remember if she advised her family doctor of her memory issues. Dr. Lehr then references her ability to recall other things during conversations, so he writes, “This has me questioning the veracity of her memory loss. In fact this has me questioning the veracity of many of her claims regarding herself and her past achievements.” Dr. Lehr suggested a possible referral to a mental health professional. With the exception of noting the applicant’s self reporting, Dr. Lehr did not provide evidence to link any specific injury to an MVA nor did he make any finding of CAT impairment, therefore his evidence was not supportive to the applicant’s CAT claim.

Dr. Grushka, Dentist

31Dr. Grushka is one of many dental professionals the applicant has seen. This doctor has provided opinion letters to Dr. Meghory where she finds that the applicant’s injuries seemingly developed since the first MVA in 2013 and worsened as a result of the MVA in 2014, based on the history of pain and suffering reported by the applicant. In a report dated December 18, 2020, Dr. Grushka references the many clinical notes and records by other dental professionals but concludes that an MRI may help her form an opinion as to the nature of the applicant’s complaints and the treatment the applicant requires. On January 23, 2021, the applicant did undergo an MRI at Sinai Health Systems and this MRI was compared to a May 2017 MRI. The resulting report by Dr. Eric Bartlett determined “a mild narrowing of the right TMJ joint space”, “mild degenerative changes” and “the left temporomandibular joint space is within normal limits”. There is no other report on file where Dr. Grushka concludes with any certainty that any dental impairment the applicant may have is as a result of any specific accident or that an accident has exacerbated any previous jaw impairment.

32As mentioned in Dr. Grushka’s report, oral surgeon Dr. Howard Holmes completed surgery on the applicant in 2002. Dr. Pavel Sectakof, orthodontist, treated the applicant for some time after that and wrote a note to Dr. Meghory in October 2015 stating that both dentists (he and his colleague Dr. Holmes) diagnosed the applicant with bruxism and canker sores, and they both recommended she attend Sleep Dentistry with Dr. Peter Copp. Neither gave an opinion that any impairment was related to an MVA.

Burns incurred by the applicant

33The applicant reports she sustained third degree burns while treating injuries she sustained in the combined three MVAs. She notes a water bottle burst causing burns on her buttocks. She testified that the burns are severe enough to be considered as part of her CAT impairment.

34There is a July 12, 2018, report on file from J. Robert Madronich, MD, plastic surgeon, regarding the burns on the applicant’s buttocks. He reports that there is no infection and in his opinion the burns have “almost completely healed”. He suggests the only course of action required to treat the burns was “moisturizer”.

35This only medical opinion provided regarding the burns fails to indicate that on their own the burns are severe enough to be considered catastrophic, and there is no medical evidence that the burns contributed to any other injury.

Mental/behavioural impairment

36While some professional assessments mention that the applicant may suffer from stress or psychological issues and she has sought psychological treatment, she has not provided the Tribunal with any evidence to show if, or to what extent, any of the three subject MVAs caused the psychological or behavioural impairments that may currently exist. There is no testing submitted by the applicant to suggest that she meets the criterion for CAT because of a mental or behavioural impairment as defined in the Schedule. The applicant has failed to show that she has marked impairment in any of the four spheres of functioning: activities of daily living; social functioning; concentration, persistence and pace or adaption (in a work-like setting).

Conclusion regarding evidence of catastrophic impairment

37The applicant has failed to meet her onus of proving that she has sustained catastrophic impairment as defined in the Schedule. There is not one medical report in evidence from the applicant to show that she meets any test for CAT as specified in the Schedule. She failed to submit any CAT assessments. She did not establish causation of any current impairments are in any way related to the actual MVA’s that are the subject of her claim.

ORDER

38The applicant did not sustain a catastrophic impairment as a result of the motor vehicle accidents that occurred on November 29, 2013, February 7, 2014, or March 20, 2017, as defined in the Schedule.

39The application is dismissed.

Released: June 16, 2023

Sandra Driesel

Adjudicator

APPENDIX ‘A’ – Order Arising from Hearing

Licence Appeal Tribunal File Numbers: 22-006408/AABS + 22-006802/AABS

• 22-006803/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:

Christina Guschewski

Applicant

and

Pembridge Insurance Company

Aviva Insurance Canada

Respondents

ORDER

ADJUDICATOR:

Sandra Driesel

APPEARANCES:

For the Applicant:

Christina Guschewski, Applicant

For the Respondent Pembridge:

Erin Cushnie, Adjuster

Jennifer Griffiths, Counsel

For the Respondent Aviva:

Katherine Northcott, Adjuster

Cara Boddy, Counsel

Held by Teleconference:

March 7, 2023

BACKGROUND

1The applicant, Christina Guschewski is self-represented. She has been involved in three motor vehicle accidents:

i. November 29, 2013 – Tribunal File No: 22-006408/AABS

ii. February 7, 2014 – Tribunal File No: 22-006802/AABS

iii. March 20, 2017 – Tribunal File No: 22-006803/AABS

2The hearing for files: 22-006408/AABS and 22-006802/AABS were set to hearing by teleconference on March 7–9, 2023. File 22-006803/AABS is set to take place by teleconference on March 21–23, 2023.

3The applicant started proceedings with the Tribunal, under the Statutory Accident Benefits Schedule – Effective September 1, 2010, for these three accidents. The first two applications involve the respondent Pembridge Insurance Company (“Pembridge”), while the third application involves a different respondent Aviva Insurance Company (“Aviva”).

4Pembridge filed a Notice of Motion (December 15, 2022) seeking to have the three applications combined and heard together. This respondent supported its request by stating that the applicant has filed an OCF-19 that links the three accidents. Also, the Notice of Motion states the other respondent, Aviva consents. The applicant initially took the position that the files should not be combined, however (according to the details provided in the related Motion Order) the applicant unequivocally submitted that she wanted all three applications to be heard together.

5The decision by Adjudicator C. Mazerolle dated January 17, 2023, orders the Tribunal shall combine the two files 22-006408/AABS and 22-006802/AABS and the related applications shall be heard on March 7–9, 2023. He also made a finding that file 22-006803/AABS should not be combined with the other two files.

PRELIMINARY ISSUES:

6At the start of today’s hearing for the first two applications the following issues were raised:

i. Pembridge raised the issue that the applicant failed to produce a hearing brief as ordered in an October 28, 2022, case conference for 22-006408/AABS (Report issued November 29, 2022).

ii. The applicant believed that all submissions made, since the applications including the over 700 pages included with the initial applications would be available for the adjudicator at the hearing event(s).

iii. The applicant also submitted numerous documents late, the evening before today’s hearing and the morning of the hearing, that were not page numbered or indexed. Similarly, the submissions made with the applications were not numbered or indexed and therefore especially in a teleconference hearing are unmanageable. Note: All submissions to Pembridge and the Tribunal were simultaneously sent to Aviva.

iv. The applicant conceded that all submissions were made in support of her argument that a catastrophic impairment (“CAT”) is a result of the three accidents combined, therefore, there is no distinction in any submission as being dedicated to or related to a specific application. The applicant expressed her belief that all applications would be heard together and therefore the documentation presented need not be defined as relating to only one or more application.

v. Pembridge notes, as recorded in the above-mentioned case conference of October 28, 2022, they objected to proceeding with the CAT determination issue because insurance examinations (“I.E.’s”) are currently in process.

7In an effort to address the above issues, the respondent Aviva was invited to join the pre-hearing discussions. The objective was to determine if it were possible to combine the hearing events in the timeframes already scheduled by the Tribunal and if we could reach an agreement on the documents that can be filed by the applicant in order for her to proceed. The following was considered:

i. The applicant found the process stressful and both respondents expressed a desire to avoid her having to duplicate the process when all of the evidence would be identical in both hearings. Although all parties agreed that combining the hearings would be most efficient, Pembridge was not available for the scheduled March 21, 2023, event.

ii. Although otherwise reported in related case conference reports, no party intends to call a witness. Note: when presented with an alternative hearing approach, the applicant rejected the possibility of making her submissions in writing.

iii. Neither respondent took the opportunity to file a motion requesting an adjournment because I.E.’s were not completed and therefore the Tribunal would not consider doing so now that this hearing has commenced.

8Having joined the hearing, on consent of the parties, Aviva noted similar concerns for the hearing scheduled to proceed March 21, 2023:

i. The applicant has not yet produced a hearing brief as ordered in an October 28, 2022, case conference for 22-006803/AABS (Report issued November 29, 2022), and although not due until March 11th, Aviva has been receiving documents (copied on submissions to Pembridge) not numbered or indexed and not specifically referenced to a particular application.

ii. Aviva had previously submitted, as noted in the above-mentioned case conference of October 28, 2022, that proceeding with the issue of CAT impairment was premature because a final determination (denial) had not been made [because I.E.’s are still in progress].

9Following discussion, I issue the following orders on consent of all parties:

i. File no: 22-006803/AABS will be combined for hearing only with the applicants other two files (22-006408/AABS and 22-006803/AABS). Given the respondent/insurer is different to the other files, it is to remain open, and any decision will apply to all three files.

ii. Aviva will join this hearing scheduled to continue March 7 and 8, 2023. Therefore, the hearing for 22-006803/AABS scheduled for 3-days commencing March 21, 2023, is to be vacated.

iii. The applicant will be able to submit documents forwarded to the Tribunal, Pembridge and Aviva in the following two recent emails (as the applicant has stated these are the main documents she will be relying on):

• The 10 attachments plus approximately 57 scanned documents attached to the email sent March 6, 2023, at 9:18 pm

• The 5 attachments to the email sent March 7, 2023, at 9:11 am

Note: Counsel for Pembridge and the applicant have undertaken to review these documents and make a best effort to label and index them for March 8th.

iv. The hearing on March 8, 2023, will commence at 1:00 pm as the applicant has a prior engagement. The parties (Applicant, Pembridge and Aviva) will be limited to 20-minute opening remarks and the applicant will then present her case.

v. Aviva has agreed to re-schedule the insurance examination scheduled for March 9th so that the applicant may attend the full day of hearing.

vi. The hearing will not be extended past end of business day Thursday March 9, 2023.

10If the parties resolve the issue(s) in dispute, the applicant shall immediately advise the Tribunal in writing.