20-005139/AABS

Licence Appeal Tribunal File Number: 20-005139/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:

Mariam Adam

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Deborah Neilson

APPEARANCES:

For the Applicant:

Mariam Adam, Applicant

Frank McNally, Counsel

Rebecca Dupantie, Counsel

For the Respondent:

Justin Beaulieu, Claims Representative

Bruce Chambers, Counsel

Closed Captioners

Brooke Silvas, Olivia Horovitz, Donna Dratwa and Michelle Brant

Court Reporters:

Jason Nebelung, Micha Salazar and Nikita Ivachtchenko of Victory Verbatim

HEARD: by Videoconference:

September 12 to 15 and December 15 to 16, 2022

OVERVIEW

1The applicant was involved in an automobile accident on December 22, 2013 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was initially paid a weekly non-earner benefit (”NEB”) by the respondent and sought a determination that she sustained a catastrophic impairment as a result of the accident. The applicant was denied further NEBs, massage therapy and a catastrophic impairment designation by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2The applicant submits that she has developed chronic pain syndrome and a somatic symptom disorder as a result of the accident that are of such a severity that she is entitled to the benefits claimed. The respondent submits that the applicant’s evidence lacks credibility and that she is, therefore, unable to prove that she sustained a chronic pain syndrome as a result of the accident or that her pain is of a severity that satisfies her onus of proof.

ISSUES

3The issues I must determine are as follows:

1. Did the applicant sustain a catastrophic impairment under either criteria 7 or 8?

2. Is the applicant entitled to an NEB of $185.00 per week from July 13, 2018 to date and ongoing?

3. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $989.06 for massage therapy recommended by Trina Ferrer, physiotherapist of Apollo Physical Therapy Centres, in a treatment plan (OCF-18) dated August 2, 2018, and denied on August 22, 2018?

4. Is the applicant entitled to a special award under s.10 of Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

5. Is the applicant entitled to interest on any overdue payment of benefits?

4Issue 3 above was not listed in any previous Order but was added by the applicant with the consent of the respondent.

RESULT

5I find that the applicant did not sustain a catastrophic impairment as a result of the accident. I find that she is not entitled to an NEB or massage therapy as a result of injuries she sustained in the accident. As no benefits are payable, the applicant’s claim for interest and a special award is also dismissed.

ANALYSIS

The accident is not the cause of the applicant’s present impairments

6The parties agree that the test for causation is the but for test, per Sabadash v. State Farm et al., 2019 ONSC 1121. For the following reasons, I find that the applicant has not proven on a balance of probabilities that, but for the accident, she would have her present complaints and impairments.

7The applicant submits that she has developed chronic pain syndrome and psychological impairments as a result of the accident. She relies on the testimony and reports dated July 31, 2018 and March 15, 2021 of Dr. Harpreet Sangha, physiatrist, who diagnosed the applicant with soft tissue injuries to her cervical and lumbar spine; chronic pain syndrome; post traumatic headaches; Somatic Symptom Disorder, predominant pain, persistent, severe; and Adjustment Disorder with mixed anxiety and depressed mood as a result of the accident. She also relies on the testimony and reports of Dr. Ken Reesor, neuropsychologist, dated May 20, 2020 and January 17, 2022 and Dr. David Duong, the applicant’s treating psychologist, both of whom made similar diagnoses.

8The respondent relies on the September 16, 2021 report and testimony of Dr. Tammie Ricci, psychologist, who did not find the applicant had a diagnosable impairment as a result of the accident. Dr. Reesor and Dr. Ricci essentially agree that the applicant has mental and behavioural impairments. They do not agree on what caused those impairments or how severe those impairments are. Dr. Reesor thought the accident was the cause of the applicant’s psychological complaints because she did not have any pre-accident psychological conditions. Dr. Ricci’s opinion, on the other hand, was that the applicant was an unreliable historian who exaggerates and that if she has any psychological impairments, they are caused by other factors such as the death of her mother.

9The respondent submits that pain is subjective and, therefore, to accept that the applicant is impaired because of her pain and her psychological reaction to pain, she must be credible. I agree with the respondent on this point. A determination of whether her subjective reports of pain have caused functional impairments is dependant upon the reliability of the applicant’s reporting to the various assessors and treatment providers. The applicant testified and reported to various health practitioners that she was in excellent health before the accident and was very active. She had to be as her job demanded she be in excellent physical health. I find that the applicant’s evidence is not credible and reliable. Her evidence is riddled with inconsistencies. Therefore, I cannot give much weight to the opinions of any assessor who relied on the applicant’s subjective reporting to formulate an opinion.

10The applicant admits that she exaggerates but submits that she is credible and I should give little weight to the respondent’s experts and more weight to the applicant’s experts for the following reasons:

a. The applicant’s pre-existing health conditions were minor and short term;

b. The respondent’s experts erred in finding the applicant had pre-accident headaches that she failed to disclose;

c. The applicant’s loss of consciousness from the accident is credible because she was in shock;

d. The applicant’s testimony was corroborated by her lay witnesses;

e. The absence of pre-accident psychological issues supports Dr. Reesor’s opinion

f. Dr. Sangha’s opinion on the spread of chronic pain explains the development of accident related health issues years or months after the accident.

The applicant’s pre-existing conditions were not minor short term health issues

11The applicant submitted that little weight should be given to Dr. Ricci’s opinion about the applicant’s credibility due to her failure to disclose her pre-existing health issues because Dr. Ricci admitted they are minor short-term conditions. I disagree because Dr. Ricci’s testimony was that it was possible that they could be short-term. However, there was a reference in the medical records to the applicant’s abdominal or fibroid complaints and other medical issues being chronic. The following evidence supports Dr. Ricci’s opinion that the applicant’s pre-accident health conditions were not short term or “one-offs.”

12According to the clinical notes and records of Appletree Clinic, the applicant was prescribed Glucosamine and Celebrex for pain complaints in her lower legs (her ankles) and stiffness in her hands on May 28, 2009 and was diagnosed with synovitis. The May 28, 2009 clinical note stated the applicant was leaving for Sudan and Egypt in three days. This contradicts the applicant’s testimony that she must have been in good health pre-accident because it was a requirement for her contract work. She was seen at Appletree Clinic for right ankle and left knee swelling and pain on June 16, 2010; November 14, 2011 for which she was prescribed Celebrex again and diagnosed with ples planus; January 11, 2012 for left ankle and heel pain for which she was prescribed Naproxen and diagnosed with diseases of the musculoskeletal system and connective tissue not yet diagnosed, leg, muscle and joint pain, and arthralgia; and December 14, 2012 for right foot pain. She underwent three different courses of physiotherapy at the Professional Physiotherapy Centre for her knees and ankles between 2008 and 2012. The applicant had x-rays taken of both hands at the Queensway Carleton Hospital on April 7, 2011 to rule out rheumatoid arthritis that only disclosed some loss of joint space between the IP and MCP joints. She had x-rays of her left foot taken at the Ottawa Hospital on April 23, 2013 after attending at the emergency department for a sprained left foot caused by slipping on her carpet.

13The applicant testified and submitted that her ankle issues for which she underwent physiotherapy in 2012 were just a one time or short-term event that resolved. She relied on the testimony of her physiotherapist, Arthur Cuenco who testified that her knee and ankle issues form 2008 and 2012 resolved with treatment. However, the medical records recording lower extremity issues span more than two and a half years prior to the December 2013 accident, plus the resurfacing of her lower extremity complaints in 2017 and 2018, contradict the applicant’s and Mr. Cuenco’s testimony. According to Dr. Khan’s records, the applicant was complaining of right heel pain on March 19, 2014 and was diagnosed with plantar fasciitis and bilateral hyperpronated ankles for which she was prescribed orthotics. She was diagnosed at the Appletree Clinic with plantar fasciitis of the left ankle on July 4, 2016. According to the Apollo Physiotherapy clinical notes and records dated August 15, 2017, the applicant complained of right knee pain that was aggravated by walking up and down the stairs for which she was taking Aleve. I find that the frequency and duration of the lower extremity complaints discount that they were a one-time event and also show that the applicant has mobility issues that are not caused by chronic pain from the accident, but are related to pre-existing conditions.

14The applicant also had issues with ear pain, on and off, as reported to Dr. Michael Mullan from Appletree Clinic on December 29, 2009, with the added complaint of tinnitus on January 22, 2010, March 8, 2010, and December 14, 2012. The applicant attended the Ottawa Hospital emergency department on March 22, 2013 for left ear pain and an abscess in her groin. On May 20, 2014, Dr. Khan referred her to a specialist for bilateral tinnitus that had bothered her for two years and for recent onset of vertigo and dizziness.

15The applicant was diagnosed with fibroids in 2009, but she submitted they did not affect her function or she would have had surgery. However, her testimony is inconsistent with the medical records. She underwent an MRI of her abdomen on April 3, 2009 and a CT scan of her pelvis on February 7, 2014 as set out in the Ottawa Hospital records. The applicant complained of abdominal pain to her family doctor, Dr. Khan, on February 25, 2014. Dr. Khan referred the applicant to Dr. Abunassar on March 12, 2014 for chronic abdominal pain that the applicant had for at least three months predating the accident.

16It is clear that the medical records contradict the applicant’s testimony and reports to various assessors that she was in excellent health prior to the motor vehicle accident. The medical records also contradict her submission that her pre-accident issues were one-time events and that she was very active before the accident. Given the applicant’s testimony that her work required her to be healthy and she only took compassionate leave from work four to six months before the accident to care for her mother, I can only conclude, in the absence of any other reasonable explanation, her other health issues were why she did not work for two and a half years before she took compassionate leave to care for her mother.

The evidence supports the IE’s opinions on credibility despite an error

17The applicant submits that a number of the examples given by the respondent’s IE assessors as to her credibility should be given little weight because they were based on erroneous information. For example, Dr. Ken Suddaby, psychiatrist, reported on July 4, 2018 that the applicant denied any pre-accident mental health or pain issues, but the medical records show she had attended at the hospital emergency department twice just a month before the accident. On cross examination, Dr. Suddaby admitted that he was wrong and the medical records he reviewed were actually for attendances a year after the accident. The insurer’s occupational therapist, Janelle MacKinnon, also made the same error in her report dated September 16, 2021. I am unable to find that little weight should be given to the IE assessors’ comments on the applicant’s credibility just because of an error on the date for two hospital attendances. These minor errors, in my view, fail to overcome the applicant’s failure to disclose her pre-accident issues concerning her abdominal pain and fibroids, ears, feet, ankles and knees or hands.

18In addition, I assign less weight to the applicant’s evidence given the validity test results on psychological testing, as reported by the applicant’s treating psychologist, Dr. Duong, on April 16, 2019, by Dr. Lubbers, as reported by Dr. Reesor on May 20, 2020, in the IE report of Dr. Tammie Ricci, psychologist, dated September 16, 2021. They all reported invalid results either from inconsistency or overreporting of her symptoms. I also give less weight to the applicant’s credibility given the discrepancies on musculoskeletal testing reported by Dr. Sangha on July 31, 2018 and Dr. Shariff Dessouki, physiatrist, September 16, 2021. Further, Dr. Michael Aiello, a general practitioner who conducted IE assessments of the applicant on December 14, 2015, March 10, 2016, and April 13, 2018, testified the applicant could not grip anything on the grip strength test. He testified that this was inconsistent with her ability to grip the arms of her chair with enough strength to lift her entire body out of the chair seconds later and to grip her cane. In my view, these examples outweigh any minor mistakes made on the date of the two hospital records.

The applicant’s claim that she lost consciousness as a result of the accident is not credible

19Another inconsistency affecting credibility and reliability is that the applicant told a number of assessors that she hit her head on the steering wheel, vomited and lost consciousness. However, this completely contradicts the ambulance call report, which states that the applicant was restrained by her seatbelt, no airbag deployed, she had no neuro-deficits, no loss of consciousness and no vomiting. The applicant suggested that I should not trust what the paramedics wrote because there was evidence that the airbag did, in fact, deploy. The applicant relied on some photos that allegedly show an airbag deployed. I do not accept this submission and prefer the ambulance call report over the testimony and reports of the applicant for the following reasons.

20The photos from the property damage file that the applicant relied on as proof that an airbag deployed showed the compartment on the passenger side dash where an airbag was contained was partially open. However, no airbag was visible. In any event, had it deployed, it would not have contacted the applicant as she was in the driver’s seat. Accordingly, I find no reason to question the paramedics’ report which is supported by the Ottawa Hospital emergency record also dated December 22, 2013. There is no evidence to suggest that paramedics were inaccurate in their reporting given how important their information is for the emergency physicians for both triage and treatment purposes.

21The applicant submitted that all the assessors testified that they have seen situations where the medical documents disclosed no loss of consciousness, but the patients describe a loss of consciousness when it was actually shock. Dr. Sangha testified that this is quite common, especially when an assessment is conducted a number of years post accident. The applicant’s submission of mistaking shock for loss of consciousness does not explain why she described hitting her head and vomiting, when the ambulance call report and hospital records record the opposite. Accordingly, I am not persuaded by the applicant’s submission that her evidence that the airbag deployed, that she struck her head on the steering wheel and lost consciousness and vomited is credible or was a misunderstanding or miscommunication of what happened. Further, whether or not it is common for patients to describe a loss of consciousness when it was actually shock does not make the applicant’s testimony or reports any more reliable.

22Another example of the applicant’s inconsistency for which there is no rational explanation is her testimony that she did not drive for three years after the accident. However, surveillance video taken on August 30, 2016 of the applicant driving her vehicle contradicts her testimony. The applicant told Dr. Ronald Seatter, psychologist, on November 28, 2016 that she did not drive anymore. When asked about this inconsistency, the applicant testified that if she said she did not drive at the time, it was because she did not have a car. However, this is inconsistent with her testimony that she owned the vehicle she was observed driving in the video surveillance. It is the same vehicle she was observed driving in the surveillance taken in June 2022. Accordingly, I find that the applicant has failed to provide a coherent explanation for the inconsistency.

The testimony of the lay witnesses does not corroborate the applicant’s testimony

23The applicant admits she exaggerates. Despite her admission, she submits that she is credible and that she was very active before the accident, as corroborated by the testimony of her sister Zuhur Adem, and a family friend, Naima Arale. The applicant submits that there is no evidence to contradict that she was active pre-accident. I find that the testimony of the applicant’s sister and friend does not support the applicant’s submission for reasons that are expanded upon below. The documentary evidence does not support the applicant’s submission that she was active. Accordingly, I cannot accept the applicant’s submission that her credibility is not a barrier to a determination of entitlement to benefits.

24Ms. Arale testified that she saw the applicant at her house about three to four weeks after the accident, at which time the applicant was in a bed in the living room. At some point before the applicant’s mother died, Ms. Arale started providing housekeeping assistance to the applicant and her mother. Ms. Arale testified that the applicant slept often in the first two months after the accident and that three to four months later, the applicant’s lack of mobility made it difficult for her to move. Ms. Arale’s evidence is inconsistent with Zuhur’s, who testified that Ms. Arale did not start providing any housekeeping services until after the applicant’s mother died. Zuhur testified that she did all the housekeeping for the applicant after the accident. Zuhur’s and Ms. Arale’s evidence is inconsistent with the clinical notes and records of the applicant’s pre- and post-accident physiotherapist, Arthur Cuenco. His note of an indeterminate date in May 2014 states that the applicant had been unable to attend therapy as she had been taking care of her sick mother. Although the note states the applicant was still in a lot of pain, that does not mean she was not still caring for her mother. My finding is supported by Mr. Cuenco’s MIG discharge report dated May 30, 2014, in which he reported that the applicant did not lose any time from her caregiver activities and did not receive any housekeeping assistance. Ms. Arale’s and Zuhur’s testimony is also inconsistent with the applicant’s report to Dr. Michael Aiello, a general practitioner who conducted an insurance examination (“IE”) on December 15, 2015, who wrote that since the accident the applicant was still providing primary care to her sick mother.

25Even if I accept the applicant’s submission that her inconsistencies and exaggeration are because of her culture, as alleged, or that it is not uncommon for chronic pain patients to exaggerate, as argued, that does not make her evidence any more reliable. In fact, the applicant’s submissions on exaggeration and culture would mean that I also cannot rely on the testimony of the applicant’s sister, Zuhur. Nor does the applicant’s submission make the evidence of the people who have relied on her subjective claims any more reliable as they have relied on the applicant’s report of what she is capable of doing. I include the applicant’s sister and Naima Arale with those who have relied on the applicant’s subjective complaints of pain in addition to the health practitioners who have assessed and treated the applicant.

Dr. Reesor’s opinion carries less weight than Dr. Ricci’s

26The applicant submits that I should prefer Dr. Reesor’s opinion over Dr. Ricci’s. I disagree. Dr. Reesor diagnosed the applicant with somatic symptom disorder and major depressive disorder, adjustment disorder/other specified trauma-stressor related disorder as a result of the accident. He also considered a diagnosis of other specified personality disorder because the applicant presented with a persistent pattern of inner experience and behavior that is maladaptive, deviates from expectations, represents a change in her previous characteristic personality patterns, and had its onset with her accident injury sequelae. Like Dr. Ricci, Dr. Reesor described that the factors that contributed to the applicant’s chronic psychiatric problems were the applicant’s inability to look after her mother as she did pre-accident, she developed a dependency on others, her parents died, and she had financial stress from being unable to work. Dr. Reesor reported that the applicant may have had pre-existing physical and psychological vulnerabilities that predisposed her to poor adjustment and maladaptive coping. However, he testified that the accident of December 2013 was a catalyst and aggravator for her current functional impairments.

27Dr. Reesor was aware that the applicant’s responses indicated a pattern of over-reporting of symptoms, consistent with the findings of psychologists Dr. Lubbers (2017) and Dr. Duong (2019). Dr. Reesor reported that in a prior assessment by Dr. Lubbers (2017) on similar performance testing, the applicant provided less than full effort and questionable validity. I did not have Dr. Lubber’s report but have no reason to doubt Dr. Reesor on what Dr. Lubber’s reported. However, I am unable to understand why Dr. Reesor determined that the accident was the cause of her present psychological impairments or a catalyst for the applicant’s narcissistic tendencies and her personality disorder given her propensity to exaggerate.

28Dr. Reesor reported that the applicant demonstrated adequate and appropriate effort on performance-based measures when he tested her. While this partially explains his determination, I was given no indication that he took into consideration the applicant’s exaggeration in reaching his conclusions. He testified the exaggeration may be due to cultural reasons and also in part from her personality traits. However, he did not explain how that would make the applicant’s complaints and reports of function any more reliable or allow him to conclude that the accident was the cause or catalyst for all of the applicant’s problems in light of all of her other medical issues.

29Dr. Reesor failed to explain how the accident was the only financial stressor in the applicant’s life when the applicant had not worked for three years before the accident. It is also reasonable to expect that the applicant’s non-accident related foot, ankle, knee, ear and vision complaints have an affect on her psychological well being. However, Dr. Reesor did not comment on what role those health issues have in the applicant’s present diagnosis. Nor did he provide any explanation for why the accident was a catalyst when there was no record of any psychological complaint or issue from the date of the accident until after the applicant’s mother died.

30Dr. Reesor relied on the applicant’s self report and the report of the applicant’s brother in-law, Taha Othman. Mr. Othman reported that the applicant used to go to the gym, attend yoga, was socially engaged and involved with friends, and was independent with housekeeping, but stopped these activities. No timeline of when these changes occurred was provided by Mr. Othman or Dr. Reesor. Given the applicant’s testimony that she reduced her activities in order to care for her mother and the overwhelming evidence in the reports and records that Dr. Reesor reviewed that the applicant is a poor historian, when Mr. Othman saw a decline in the applicant’s social or housekeeping activities is relevant. The timing is especially relevant in light of the applicant's pre-accident and non-accident related hand weakness, knee, tinnitus, fibroids, foot and ankle issues. As Dr. Reesor did not flush out the timing, I am unable to give much weight to his opinion that the applicant’s decline in activity was caused by the accident.

31Dr. Reesor reported that it is possible that Ms. Adam sustained a concussive event with microscopic brain pathology. His reasoning was because a CT scan of the applicant’s head showed hypodensities in gray and white matter. He also opined that there was indication of pre-existing metabolic vulnerabilities, such as those associated with diabetes, that may have been aggravated by the accident. However, Dr. Reesor is a neuropsychologist and is not qualified to provide any opinion on the effect on head injury of diabetes or diabetes related dementia. Accordingly he deferred to the opinion of those experts qualified to do so. Without any opinion evidence to support Dr. Reesor’s speculation and given his lack of qualification to comment on diabetes, the lack of any indicia of a head injury in the ambulance call report and the Ottawa Hospital records, I am unable to give any weight to his speculation as to the cause of the hyperdensities in the white and grey matter of the applicant’s brain.

32The applicant also submitted that I should give more weight to Dr. Reesor’s opinion than Dr. Ricci’s because Dr. Ricci did not and could not point to specific references in the records, whereas Dr. Reesor did. I do not agree with the applicant because the references to medical records are recorded in Dr. Ricci’s report and the medical records that were exhibits before me. Further, Dr. Ricci’s review of the records showed that the applicant did not present with psychological symptoms after the accident prompting intervention until at least late 2016. Dr. Reesor’s opinion does not allow for a reasonable explanation for this timing whereas Dr. Ricci’s does – namely the death of the applicant’s mother caused the applicant’s depression. Further, Dr. Reesor’s opinion was based on the lack of any pre-accident psychological issues. Dr. Ricci had noted entries on the applicant’s OHIP summary dated November 11, 2013 of anxiety neurosis and in the summer of 2013 related to issues with aged parents. The applicant submitted that Dr. Ricci acknowledged on cross-examination that such visits do not constitute a diagnosis may have been just a passing comment or concern over a family member that was made by the applicant to her physician.

33I accept Dr. Ricci’s opinion of pre-accident psychological issues given the May 16, 2019 clinical note of Dr. Uchenna Ofokansi, who reported that the applicant has seen psychologists on and off since 2012, despite the applicant’s denial that she received any pre-accident psychological counselling. I also accept Dr. Ricci’s opinion because of the OHIP entries of anxiety neurosis made on November 11, 2008 and April 6, 2009 and November 11, 2013 in contrast to the entries for family disruption made on July 16, 2013 and problems with aged parents made on December 16, 2013. While the anxiety neurosis OHIP entries only record billing information, they support that the type of treatment that was being billed for was related to mental health. The billing for family disruption is more consistent with billing for a discussion of issues of an aging parent. Further, if the OHIP charges were not for treatment of mental health related issues, it was open to the applicant to obtain the actual clinical notes and records of the physicians who billed OHIP to support her testimony that there were no pre-accident psychological issues.

34The applicant submits that no weight can be given to Dr. Ofokansi’s note because the applicant was not questioned on it. The respondent submits that the applicant was questioned on whether she underwent pre-accident psychological counselling and she denied that she had. I find that, although Dr. Ofokanis’ note was not put to the applicant, I cannot ignore it as it was filed as an exhibit. While I cannot give it much weight as the applicant was not asked to explain the inconsistency between her denial of pre-accident counselling and the note, she was cross-examined about the entries in the OHIP summary. Her explanation and testimony was that she may have made a passing comment to her mother’s physician about concerns about her mother’s care. This may explain one or two entries in 2013, but it does not explain the remainder of the entries from 2009 and 2013 for charges for treating anxiety neurosis. Accordingly, I am unable to accept the applicant’s submission that Dr. Ricci’s opinion be given little weight.

35Dr. Ricci’s report is consistent with physician Dr. Ofokansi’s report that the applicant’s cognitive function, insight and perception were good or within normal limits as of October 17, 2019. Further, the first mention in Dr. Khan’s clinical notes and records of stress or psychological issues is the note of January 25, 2017. Dr. Khan reported that the applicant complained of emotional distress since November 2016 when her father passed away and that her mother passed away in Cairo in April 2016 (which is inconsistent with the applicant’s report to other physicians that she passed away in Canada in April 2015). Since then the applicant had been feeling fatigued, tired, low mood, low energy, decreased appetite, anhedonia, worried a lot but had no panic attacks.

36I also find Zuhur’s testimony regarding the timing of the applicant’s mood issues becoming evident in and around 2018 supports Dr. Ricci’s opinion that other factors, such as the death of the applicant’s mother and the myriad health issues that pre-existed the accident and persisted after, are at play in the applicant’s current presentation. Accordingly, I find Dr. Ricci’s opinion that other factors caused the applicant’s present psychological complaints is logical and is a cohesive explanation of the evidence. For these reasons, I prefer Dr. Ricci’s opinion over Dr. Reesor’s and am unable to agree with the applicant’s submission that the only factor for the applicant’s present psychological issues is the accident. Accordingly, I find that the applicant has failed to prove on a balance of probabilities that, but for the accident, she would not have her present psychological impairments.

Dr. Sangha’s opinion on the cause of the applicant’s chronic pain carries little weight

37Although Dr. Sangha’s opinion was that the applicant sustained a lumbar strain as a result of the accident, I am unable to give any weight to the diagnosis given the lack of temporal relationship to the onset of the low back pain.

38The medical records show that the applicant sustained soft tissue injuries to her neck, upper back and right shoulder. Dr. Khan’s records include a report on an MRI taken on April 3, 2009, which disclosed a possible small hemangioma at the bottom of L5. According to the ambulance call report and the Ottawa Hospital records, including the applicant’s pain chart for December 22, 2013, she initially complained of upper back pain, headache and neck pain as a result of the accident at a pain level of 7/10, and was released from the Ottawa Hospital with a diagnosis of neck pain. The first record of any low back pain was January 31, 2014, when she saw Dr. Khan for three days of low back pain that had been exacerbated for three days. She complained to him on February 7, 2014 of abdominal and low back pain for seven days and was prescribed Tramadol. An x-ray of the applicant’s back taken on February 7, 2014 indicated slight lumbar scoliosis to the left and possible spina bifida occulta.

39Dr. Sangha did not provide any coherent explanation of how lumbar strain would not become symptomatic for almost six weeks or of the role of the lumbar scoliosis and spina bifida occulta on the applicant’s back complaints in his July 31, 2018 report or his testimony. His comment that there was no indication that the applicant had any pre-accident difficulties that would explain her symptomology is contradicted by his determination that the applicant’s issues with her extremities are not related to the accident.

40I am not satisfied that the upper back pain continued to be symptomatic given that Dr. Sangha did not provide any diagnosis of thoracic or upper back strain from the accident in his 2018 report and the February 2, 2017 report from the Seekers Centre of an unknown author indicates the applicant’s back complaints are to her low back with no mention made of her thoracic area. Dr. Khan made no mention of upper back pain when he referred the applicant to Dr. Abdallah on May 14, 2014 or to Dr. Simon on December 2, 2014. Nor is there mention of upper back pain in the reports of Mr. Ferland dated January 7, 2016, January 19, 2017, September 18, 2019, October 30, 2019, and February 12, 2021.

41On May 20, 2014, Dr. Khan noted the applicant complained of mild headaches, which is inconsistent with her 2018 report to Dr. Sangha of headaches rated on a pain scale 6/10 to 10/10 with no improvement since the accident. The report to Dr. Sangha is also inconsistent with the applicant’s attendance at the Ottawa Hospital on November 13, 2015 with a complaint of a slow onset of headache with no trauma. In other words, while the applicant initially experienced headaches from the accident, they were mild and eventually resolved only to resurface in 2015.

42The applicant submitted that her pain complaints to other parts of her body are causally related to the accident and relied on the testimony of Dr. Sangha for support. Dr. Sangha testified that it is common for someone who develops chronic pain syndrome to develop complaints in other parts of the body. However, I am unable to accept that is the case with the applicant. Although Dr. Sangha diagnosed the applicant with chronic pain syndrome, his evidence is that she had diffuse difficulties with pain in the upper and lower extremities as well as swelling in her ankles and the difficulties with her right thumb, which, in his opinion, are not consistent with the mechanism of the injury and the time that has elapsed since the collision. This finding is supported by the clinical notes and records which record issues with the applicant’s fibroids, ears, hands, feet, ankles and knees pre-accident as well as post-accident, the note from Appletree Clinic dated May 25, 2016, in which the applicant was diagnosed with diabetes and possibly diabetic peripheral neuropathy, the timing of her low back pain, her chest pain complaints for which she attended at the Queensway Carleton Hospital on December 19, 2016, the lesion of the right lobe of her thyroid gland noted in an MRI taken at the Children’s Hospital of Eastern Ontario on December 22, 2016 and the diagnosis by Dr. Garfield Miller, ophthalmologist, of a cataract in her left eye on January 17, 2017. These are all objective medical conditions and are not causally related to the accident.

The applicant is not catastrophically impaired

43To be deemed catastrophically impaired, the applicant must prove on a balance of probabilities that she meets the definition under s.3(2)(e) of the Schedule in force in 2013 - an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“AMA Guides”), results in 55 percent or more impairment of the whole person (“WPI”). This is also referred to as criteria 7. In the alternative, she will be catastrophically impaired if she meets the definition under s.3(2)(f) of the Schedule an impairment that, in accordance with the AMA Guides, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder in one of four spheres of activity. This is also referred to as criteria 8.

44The applicant asserts she meets both criteria 7 and 8 because she sustained psychological impairments and chronic pain as a result of the accident.

45The respondent submits that the applicant failed to apply for catastrophic impairment under criteria 8 and that I only have jurisdiction to hear the issue of criteria 7. The respondent also submits that the applicant does not meet either criteria 7 or 8 as she is an unreliable witness and the cause of her present impairments is not the accident but is due to pre-existing health issues and other stressors in the applicant’s life.

46While I find the issues of whether the applicant is catastrophically impaired under both criteria 7 and 8 are both properly before me, I am unable to find that she is catastrophically impaired as a result of the accident under either criteria for the reasons that follow.

Criteria 8 is an issue in dispute

47The parties advised at the outset of the hearing that criteria 7 and 8 were both at issue in determining whether the applicant sustained a catastrophic impairment. In its closing submissions, the respondent for the first time raised the issue that the applicant has not applied for catastrophic impairment under criteria 8 and is, therefore, barred under s.55 of the Schedule from proceeding with her claim under this criterion. The application for catastrophic impairment (“OCF-19”) of Dr. Anees Khan, the applicant’s family physician, dated October 20, 2020, only lists whether the applicant has a whole person impairment (“WPI”) of 55% or more. The box for criteria 8 was not marked.

48Even so, I find that the applicant is not barred from proceeding with her claim for catastrophic determination under criteria 8 for the following reasons. The applicant submitted that the time for raising the issue that she was barred was at the outset of the hearing, not at the end. I agree. I find that the respondent waived any right it might have had to rely on a failure to apply for catastrophic impairment under criteria 8 by conducting an insurer’s examination (“IE”) assessment on criteria 8, by denying the applicant sustained a catastrophic impairment under criteria 8 in its September 21, 2021 denial letter and by stating at the outset of the hearing that the catastrophic impairment issue I must determine was criteria 8. Nor is there any response filed by the respondent stating that it relied upon the applicant’s failure to mark criteria 8 on her application as a defence to her claim. The issue of catastrophic impairment was added as an issue on consent of the respondent on May 17, 2022 after a motion was brought by the applicant. The respondent, therefore, had plenty of time to file an amended response to the claim for catastrophic impairment and failed to do so.

49The applicant’s entitlement to accident benefits is governed by the definition of catastrophic impairment in the version of the Schedule that was in force at the time of the applicant’s accident. The procedure for applying for catastrophic impairment is set out in s.45 of the Schedule. Section 45 sets out a list of rules for the application process. No mention is made under s.45 that a failure to tick off one of the criteria on an OCF-19 means that an insured person cannot dispute a finding of the respondent on that criterion. Nor does s.45 of the Schedule limit the insurer to conducting IEs on only the criteria listed in the OCF-19. In fact, in this case, the respondent conducted IEs on both criteria 7 and criteria 8 and sent the applicant a notice denying she sustained catastrophic impairment under both criteria based on the findings of those IE assessments. Under s.280 of the Insurance Act, RSO 1990, c I.8, the applicant is allowed to apply to the Tribunal for resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. I find that the respondent has denied that the applicant is entitled to catastrophic impairment determination under criteria 8 and that by virtue of her motion to add the issue to her application, the applicant disputes that denial as allowed under s.280 of the Insurance Act.

50Accordingly, I find that the applicant properly applied for catastrophic impairment by submitting an OCF-19. The respondent denied her claim for a catastrophic impairment designation under both criteria 8 and 7 and, therefore, s. 55(1)1 of the Schedule is not a barrier to the applicant’s application at the Tribunal. However, if I am wrong, I find that the respondent’s September 21, 2021 denial letter is a written waiver of any reliance on s.55(1)1 of the Schedule.

The applicant is not catastrophically impaired under criteria 8

51Under criterion 8, the applicant must establish on a balance of probabilities that her psychological impairments resulted in at least one or more class 4 (marked) impairments in any of one of the four spheres of function outlined in chapter 14 of the AMA Guides because of the accident. The spheres of function are:

a. activities of daily living (“ADL”);

b. social functioning;

c. concentration persistence and pace; and

d. deterioration or decompensation in a work or work like setting, also referred to as adaption to the workplace.

52The AMA Guides provide a method to rate the severity of a person’s mental and behavioral functioning in four spheres of function (“domains”) on a scale of 1 to 5 corresponding to none, mild, moderate, marked and extreme impairment, and expressed as classes 1 through 5 as follows:

Class 1: No impairment

Class 2: Mild impairment

Class 3: Moderate impairment

Class 4: Marked impairment

Class 5: Extreme Impairment

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

53The applicant relies Dr. Reesor’s opinion that she sustained a marked Class 4 impairment in her ADLs, social functioning and deterioration in a work-like setting and a moderate Class 3 impairment in concentration persistence and pace. The respondent relies on the opinion of Dr. Ricci, who determined that the applicant’s description of her mood and how it affected her function could not be relied on for the purpose of rendering a diagnosis because of the inconsistencies demonstrated by the applicant at her assessment. Dr. Ricci testified that if the applicant’s reports were taken at face value, the applicant’s level of impairment regardless of cause was a class 4 marked impairment in all spheres of activity. However, Dr. Ricci determined that the applicant has a class 1 no impairment in all spheres of activity as a result of the accident because of her credibility and because any psychological impairment the applicant may have is not accident related. I prefer Dr. Ricci’s opinion and give it more weight than Dr. Reesor’s for the reasons already given.

54For the reasons already given, I am unable to find that the accident was a factor in the applicant’s present psychological presentation. Therefore, I find that the applicant has failed to prove on a balance of probabilities that, but for the accident, she would not have her present psychological impairments. Accordingly, I am unable to accept Dr. Reesor’s opinion on the class 4 marked impairments. Further, I heard nothing about how Dr. Reesor accounted for the applicant’s exaggeration when he assigned a Class 4 marked impairment in three of the four spheres of activity. Accordingly, the applicant has failed to establish on a balance of probabilities that she sustained a catastrophic impairment as a result of the accident under criteria 8.

The applicant is not catastrophically impaired under criteria 7

55Under criterion 7, the applicant must establish that her combined physical and mental behavioral impairments produce a 55% WPI rating or more using a rating system based on chapter 3 of the AMA Guides to the Evaluation of Permanent Impairment, 4th ed. (“AMA Guides”) to rate the physical impairments. There is no agreed upon method for evaluating the WPI percentage of psychological impairment. The respondent’s IE assessors determined that the applicant sustained a 20% WPI for physical impairments.

56Dr. Reesor reported that the applicant has a 48% to 58% WPI for psychological impairment in his May 20, 2020 report. As I have determined that regardless of the accident the applicant would be experiencing her present psychological and pain complaints, Dr. Reesor’s opinion does not assist me. Nor can I accept it given that Dr. Reesor apparently did not take into consideration the applicant’s exaggeration when calculating the WPI%. Accordingly, I find that the applicant has failed to prove on a balance of probabilities that she sustained a catastrophic impairment under criteria 7. For these reasons, she does not meet the definition of catastrophic impairment in the Schedule.

The applicant is not entitled to further non-earner benefits

57The respondent paid the applicant NEBs up to July 13, 2018. Under s.12 of the Schedule, the respondent is required to continue paying NEBs to the applicant if she sustained an impairment as a result of the accident and she suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit. The fact that the respondent paid NEBs for about 4 years after the accident is evidence that the respondent accepted that the applicant met the requirement that she sustained a complete inability to engage in a normal life within 104 weeks of the accident. For me to determine that the applicant has a complete inability to carry on a normal life since July 13, 2018, pursuant to s. 3(7)(a), she must prove on a balance of probabilities that, as a result of the accident, she sustained an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident.

58The parties agree that the principles I must apply to determine the applicant’s ongoing entitlement to NEBs are found in the seminal case of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”). These principles require a comparison of the applicant’s activities and life circumstances before the accident to those post-accident. The applicant submits, and I agree, that Heath requires the Tribunal to place greater weight on pre-accident activities that have a particular importance for the applicant.

59Both parties agree that the time period for looking at the applicant’s pre-accident activities is not a snapshot in time just before the accident. Rather, the applicant submits that I should consider the applicant’s activities prior to when she started caring for her mother because her time off work was just supposed to be a temporary measure while she looked after her mother. The respondent submits that this is not unreasonable, but that there is no credible evidence of what the applicant did before taking care of her mother. The issue I have is that it is also not clear from the evidence whether the applicant has been caring for her mother since 2011 or whether it was from July or September 2013.

60The applicant testified that, before her mother became ill, her typical day was spent getting up, showering, cooking breakfast, going to the gym and swimming, then eating dinner with her mother. She usually read for about an hour before going to sleep. The applicant cooked for her mother, dressed her, assisted her with toileting, showering, took her to all of her medical appointments and therapies and took her to the mosque once per week. The applicant testified that she did all the laundry for the house once per week, washed the dishes and the cleaned as required. The applicant also prepared and served coffee and dessert and helped entertain her mother’s friends who visited about once or twice per week. The applicant testified that her sister, Zuhur, would visit and help by bringing food. Zuhur’s testimony corroborates a large part of the applicant’s testimony of what the applicant did for her mother.

61The applicant testified that, before the December 2013 accident, she was involved in volunteer work, yoga once per week, salsa dancing three times per week, Zumba, French class, and Toastmasters once per week. She also attended monthly meetings for her professional affiliations. The applicant testified that she had a very active social life and would often go for coffee or dinner with her friends and colleagues after her classes or meetings. However, contrary to the applicant’s testimony, Zuhur testified that the applicant did not have many friends in Ottawa.

62The applicant admitted that after her mother became ill, she stopped attending Toastmasters, yoga and salsa dancing and only did Zumba once per week or once every two weeks. The applicant stopped going to the gym to swim and only had time to read for about ten minutes before going to bed. She only went out with friends for dinner once or twice from the time her mother became ill until the accident in December 2013.

63I find that the applicant continued to provide physical care to her mother after the December 2013 accident . She initially testified that she was no longer able to provide physical care to her mother because of her pain complaints and that she mostly provided moral support to her mother after the accident as she was unable to cook or do the housekeeping and home maintenance. However, on cross-examination the applicant testified that she provided a high level of physical care to her mother even after the accident. She testified that she took over doing all of the housework for her mother and provided care for her mother twenty-four hours per day, seven days per week after her mother became very ill, which she testified was in 2014. This testimony is supported by the testimony of Zuhur as well as the MIG discharge report of Arthur Cuenco dated May 30, 2014 in which he reported that the applicant did not lose any time from her caregiver activities and that, while the applicant had difficulties performing her housekeeping activities as a result of the accident, she did not receive housekeeping assistance after the accident. It is also inconsistent with the applicant’s report to Dr. Aiello that she was providing the primary care for her mother after the accident.

64Zuhur testified that, initially, the applicant provided moral support and would just supervise her mother when she showered. However, when her mother became very ill, the applicant had to do everything for her including assisting her mother with toileting and showering. Ms. Arale testified that their mother became very ill about four to five months before she died in April 2015. This is consistent with the applicant’s testimony that she was providing more care for her mother in 2014. For these reasons, I find that the applicant continued to care for her mother after the 2013 accident.

65Zuhur testified that after the accident, the applicant still took their mother to the mall, to physiotherapy, and out for fresh air, but not like she did pre-accident. Zuhur did not testify how it was different. I accept that the applicant no longer drove her mother to appointments or to the mosque after the accident as she did not have a vehicle.

66I find that since her mother died, the applicant has not returned to salsa dancing, Zumba, or her charity work and has reduced her housekeeping activities. However, I am not satisfied that it is because of her accident related injuries. I accept that the applicant has limitations due to chronic pain and she now has assistance from Naima Arale and her sister Zuhur in housekeeping, cooking and weekly assistance from Ms. Arale in doing her hair. However, for the reasons already given, I am unable to find that it is because of the accident. I am unable to find that, her functional impairments caused by chronic pain were as a result of the accident given all of her other issues.

67I find that the applicant’s inability to engage in activities she engaged in before the accident would have occurred regardless of the accident. Accordingly the applicant’s claim for non-earner benefits is dismissed.

The applicant is not entitled to massage therapy in a treatment plan (OCF-18) dated August 2, 2018

68The applicant submits she is entitled to $989.06 for twelve sessions of massage therapy recommended by Trina Ferrer, physiotherapist of Apollo Physical Therapy Centres, in a treatment plan (OCF-18) dated August 2, 2018. I find that the applicant is not entitled to the proposed treatment for the following reasons.

69For a determination of entitlement to treatment under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

70The applicant relied on the testimony of Dr. Sangha. Dr. Sangha said that he does not encourage people to attend massage therapy indefinitely, but if it can increase mobility and get the applicant away from being isolated at home, it is reasonable and necessary. The respondent relied on Dr. Sangha’s testimony that further massage would just increase the applicant’s reliance on treatment providers and her focus on pain.

71The purpose of the massage therapy set out in the treatment plan was to reduce pain and hypertonicity of the applicant’s neck, back, shoulders, right forearm and hand. This is in keeping with Dr. Sangha’s recommendation. However, the evidence and testimony before me does not support that treatment of the applicant’s shoulders, arms, low back or hands is reasonable or necessary as a result of the accident. I have already determined that the applicant’s pain complaints, mobility issues and her psychological issues are not accident related. I was provided with no evidence that the massage was reasonable or necessary for the treatment of the applicant’s neck. Accordingly, I am unable to find that the applicant is entitled to the massage therapy in issue..

The applicant is not entitled to a Regulation 664 award

72Section 10 of Reg. 664 provides that an award of up to 50% of the accident benefit and interest owed may be granted if the respondent unreasonably withheld or delayed payments.

73Given that I found that the applicant’s impairments were not caused by the accident and that she is not entitled to any of the benefits claimed, there was no payment unreasonably withheld or delayed. Accordingly, the applicant’s claim for a Reg. 664 award is dismissed.

Interest is not payable

74The applicant has claimed entitlement to interest on any overdue payment of benefits in accordance with s. 51 of the Schedule. As no benefits are payable, no interest is payable. Accordingly, this claim is dismissed.

ORDER

75The applicant has failed to establish on a balance of probabilities that she sustained the injuries alleged as a result of the accident. The applicant’s claims are dismissed.