Citation: Weafer v. Wawanesa Insurance, 2023 ONLAT 22-004828/AABS

Licence Appeal Tribunal File Number: 22-004828/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:

Patricia Weafer

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Clive Forbes

APPEARANCES:

For the Applicant:

Patricia Weafer, Applicant

Ava Williams, Counsel

For the Respondent:

Ryland MacDonald, Counsel

Court Reporter:

Amber Wellman

Heard by Videoconference:

June 12, 13, 15 & 16, 2023

OVERVIEW

1Patricia Weafer, the applicant, was involved in an automobile accident on August 24, 2011, and sought benefits from the respondent, Wawanesa Insurance Company, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).

2The issue in dispute is a catastrophic impairment (CAT) designation. The applicant’s position is that she is CAT as a result of the accident. The respondent’s position is that the applicant mischaracterized her true mental and physical state to the medical assessors and therefore, she is not CAT. The parties agree that the maximum amount for medical and rehabilitation benefits for non-CAT under the Schedule has been exhausted.

ISSUES

3The following issue is in dispute:

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

RESULT

4The applicant did not sustain a catastrophic impairment as defined by the Schedule.

ANALYSIS

5I find that the applicant is not CAT as defined in the Schedule for the following reasons.

6The applicant bears the onus to prove on a balance of probabilities that she is CAT. The test to determine whether the applicant is CAT is a legal test and not a medical one. The criteria to establish CAT are found under s. 3(2) of the Schedule. In this case the applicant claims she has a “marked” or class 4 impairment in at least one or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to her mental or behavioural disorder.

7The four domains or areas of function as outlined in Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment 4^th Edition, 1993 (“Guides”)are: (1) activities of daily living; (2) social functioning; (3) concentration, persistence and pace and (4) deterioration or decomposition in work or work like settings (also referred to as adaptation).

8It is clear that the applicant has suffered impairments as a result of the accident. However, the evidence also suggests that most of the applicant’s impairments existed before the accident as a result of injuries sustained in separate, unrelated incidents: a workplace accident and a collapsing incident arising from a syncopal episode. For example, on December 12, 2007, the applicant was involved in a workplace accident where the door of an ATM machine fell on her head. She sustained a mild concussion and was subsequently diagnosed with major depressive disorder and PTSD as a result of the workplace accident. On April 5, 2009, the applicant was taken to hospital after collapsing following a syncopal episode and her family physician, Dr. Daryl Sokolon, believed that this episode was due to stress arising from her recent return to work after having been off work since the workplace accident. He advised that she take time off from her return-to-work program.

9Before the accident, in the functional capacity evaluation report by Sean Smith dated March 17, 2008, the applicant reported that she was able to perform the majority of her household tasks, but had difficulty with heavier tasks including vacuuming, garbage removal and home renovations. Also, in the individual written plan by Liana Paniccia, rehabilitation consultant, dated March 6, 2009, it was reported that the applicant continues to endorse a number of cognitive limitations including word finding difficulties, short term memory loss and difficulty with geographical orientation. The applicant’s daughter also reported that her mom was not functioning at her pre-workplace accident disability level and is now unable to perform many of her previous hobbies and tasks.

10In addition, Dr. Sokolon referred the applicant to Dr. Anoushirvan Adel, psychiatrist, who on May 10, 2009, diagnosed her with major depressive disorder and queried whether the applicant may be suffering from PTSD, which Dr. Adel subsequently confirmed. Dr. Adel also recommended the applicant for group and individual psychotherapy. On December 13, 2010, Dr. Adel noted that the applicant reported that she was spiraling as her mood had taken a marked decline. Dr. Adel also noted on June 17, 2011, that the applicant reportedly was still having flashbacks of being in the bank where she sustained her injuries from December 2007.

11The subject accident occurred on August 24, 2011, when the applicant was involved in a two-vehicle collision at an intersection. The ambulance call report stated that the applicant was unsure if she lost consciousness, there was no trauma to her head, no visual disturbances, no airbag deployment, her awareness was intact, and she had trouble recalling the events and providing clear details about the accident. Dr. Sokolon, saw her on September 6, 2011, approximately two weeks after the accident, and diagnosed her with soft tissue injuries as a result of the accident. On October 12, 2011, Dr. Sokolon signed an OCF-23 listing soft tissue and psychological injuries and stated the applicant’s workplace accident injuries could affect her response to treatment, while identifying her pre-existing psychological injury as barriers to recovery. In addition, on November 25, 2013, the applicant sustained a concussion after falling down a flight of stairs, headfirst, hitting her head against a concrete floor.

12As a result of the August 24, 2011 accident, the applicant submits that she has a marked or class 4 impairment in at least one of the four domains, and therefore, meets the test for a CAT impairment pursuant to s. 3(2) of the Schedule. I find that based on the testimony of the applicant, the applicant’s daughter and the medical and documentary evidence, that the applicant does not meet this test as set out in the Schedule.

13While the applicant may no longer be the same person she was prior to the accident, and has some limitations and restrictions to her daily life that she did not previously have, the Guides provide that showing restriction or limitation in only one or two of the areas of function is not sufficient to meet the Schedule’s catastrophic impairment test. Rather, the Guides provide that in order to have a CAT impairment, one must demonstrate that their impairments significantly impede or preclude useful functioning. It is also important for an applicant to accurately capture their pre- and post-accident areas of function based on the totality of the contemporaneous medical and documentary evidence provided, in order for the Tribunal to determine the level of impairments for each of the four domains, and whether these impairments significantly impede useful functioning.

Activities of Daily Living (ADL)

14The Guides specify on page 294 what needs to be considered for this domain. For example: activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities. These activities must be judged by their independence, appropriateness, effectiveness and sustainability. The individual’s capability of initiating and participating in these activities independent of supervision or direction must be clearly defined and understood in the context of pre- and post-accident functional abilities. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

15With regard to her specific ADLs, the applicant’s daughter testified that pre-accident her mom was lively, energetic, joyful, loved attending family reunions and helping others. The applicant’s daughter also testified that her mom was fairly independent, loved camping, swimming and used to spend a lot of time engaging with her daughters in the garden. Her daughter also shared that her mom had an interest in decorating and wanted to use that skill in setting up a home staging business.

16In her neuropsychological evaluation and s. 25 CAT assessment report dated April 27, 2021, Dr. Joanna Hamilton, neuropsychologist, and also the applicant’s current treating psychologist, diagnosed her with a mild traumatic brain injury as a result of the accident that resulted in a neurocognitive disorder, somatic symptom disorder with predominant pain, major depressive disorder and PTSD. Dr. Hamilton concluded that within the activities of daily living domain, the applicant presents with a class 4 marked impairment. Dr. Hamilton stated that the applicant requires assistance from her family and treatment team to complete activities in this area of functioning, such as bathing, communication, listening and processing information. Dr. Hamilton also indicated that the applicant has difficulties with word finding, expression, listening and processing information and experiences extreme levels of fatigue.

17In his s. 25 CAT assessment report dated May 01, 2023, Dr. Shahzad Shahmalak, psychiatrist, diagnosed the applicant with somatic symptom disorder with predominant pain, specific phobia, situational type (vehicular) and major depressive disorder, moderate to severe (worsened since motor vehicle accident and subsequent fall). Dr. Shahmalak concluded that within the activities of daily living domain, the applicant presents with a class 4 marked impairment. Dr. Shahmalak indicated that the applicant reported doing grocery shopping online through Instacart, and that her daughter also helps her with grocery shopping as she is limited by pain, anergia and amotivation. She also stated that she is unable to perform housecleaning, laundry and outdoor maintenance independently.

18In a s. 44 CAT report dated February 04, 2022, Dr. Stephanie Wiesenthal, psychiatrist, stated that during her assessment and from reviewing the available documents, it was her opinion that the applicant has a class 2 mild impairment in the area of activities of daily living. Dr. Wiesenthal diagnosed the applicant with somatic symptom disorder severe, predominant pain, persistent, pre-accident, with mild exacerbation from the motor vehicle accident and then further exacerbation after the November 2013 incident. She also diagnosed her with major depressive disorder, moderate, recurrent, without psychotic features, pre-accident, mild exacerbation from the motor vehicle accident and then further exacerbation after the November 2013 fall.

19Dr. Wiesenthal stated in her report that during Ms. Linda Cottrell’s in-home occupational therapy assessment that was conducted on September 14, 2021, the applicant presented with significant functional cognitive issues as well as a number of psycho-emotional issues that would appear to clearly interfere with her ability to function in her normal activities of daily living. However, it was noted that following file documentation review, it appears the applicant was quite impaired at the time of the subject accident from a functional cognitive and psycho-emotional perspective as a result of a host of serious pre-motor vehicle accident injuries and abuse. It was also noted that she had also been previously diagnosed with a chronic pain condition, which also appears to have been the source of limitation across a number of her activities of daily living.

20I do not agree with Dr. Hamilton’s and Dr. Shahmalak’s assessments because not much appears to have changed with the applicant’s pre- and post-accident ADLs. In my view the totality of the evidence does not support their positions that the applicant presents with a class 4 marked impairment under this domain because of the psychological contribution to the impairments. My review of the contemporaneous medical and documentary evidence and the applicant’s own self-reporting and testimony does not support this claim.

21On August 30, 2011, Dr. Adel noted that the August 24, 2011 accident exacerbated the applicant’s pre-existing PTSD. He also noted on September 28, 2011, that the applicant had started volunteer work at the art gallery one to two times per week and in the Active Living Physiotherapy clinical notes and records (CNRs) dated November 7, 2011, it was reported that the applicant was volunteering up to three to four hours per shift at the art gallery. On July 4, 2012, Dr. Adel noted that the applicant’s pain had improved, her physical activity was improving, her mood overall was good and bright and that she was sleeping seven to eight hours per night.

22Dr. Adel also noted on October 23, 2013, two years post motor vehicle accident, that the applicant’s energy level was improving, she was walking more, socializing more and engaging well. Dr. Sokolon also noted on December 7, 2017, that medications from Dr. Adel have been reduced for the applicant, including discontinuation of gabapentin and discontinued situation of antipsychotic at bedtime. Dr. Sokolon also stated that the applicant has a positive outlook due to the fact that she was able to lose ten pounds since her last visit. I find Dr. Sokolon’s and Dr. Adel’s reports and notes persuasive because they show that with the appropriate medical treatment and intervention, the applicant’s psychological impairment improved and her functional abilities were not significantly impeded.

23In their cognitive-psychological functional ability evaluation report dated October 16, 2009, Dr. Douglas Salmon, clinical psychologist, and Dr. Mohammad Nikkhou, clinical psychologist, stated that the applicant has a significant functional shortfall, particularly in terms of sustained attention, verbal communication, distractibility and work pace/stamina. The applicant also completed a range of motion rehabilitation checklist, and the results indicate that she perceived herself as being 90% disabled. In addition, in his psycho-vocational assessment report dated March 5, 2012, Dr. Phillip Miller, psychologist, noted that the applicant was suffering from a number of physical, psychological and cognitive impairments as a result of her 2007 workplace accident. He concluded that as a result of the combination of the symptoms and deficits arising from these disorders and as demonstrated by her inability to manage her return-to-work program, she was totally disabled and totally unemployable.

24Furthermore, the medical records reveal that following the applicant’s workplace accident in December 2007, she developed psychological, physical and cognitive medical issues prior to the accident. I was not directed to any new evidence or medical opinions from her treating physicians that indicated that the motor vehicle accident caused these conditions, and that these conditions worsened resulting in her being significantly impeded in her ADLs post-accident.

25The applicant also argues that she has suffered a deterioration in functioning since the accident ,and relies on the Central East LHIN records from November 2018 to October 2020 to support her position. However, a review of Dr. Sokolon’s CNRs for that time period reveals that the applicant reported once, on August 8, 2019, that she is finding it hard to plan things even as simple as organizing the dishes to wash them properly. Dr. Sokolon attributed this to her cognitive impairment and also noted that she was walking daily and swimming several times a week. In fact, on January 5, 2021, Dr. Sokolon’s records reveal that he indicated on the Canada Revenue Agency Tax Disability form that the applicant suffered a head injury in 2007 and has mild cognitive impairment since the workplace accident that has resulted in impaired memory, impaired executive planning and executive organization, and that her task completion is impaired. Also, in a letter to Service Canada dated April 30, 2018, Dr. Sokolon noted that since the applicant’s workplace accident she has been totally disabled and unable to work. He also stated that she is functionally limited in her ability to process information and make rational decisions and that these cognitive impairments limit her ability to function normally and return to work.

26Also, contrary to the applicant’s position post- accident, it would appear little has changed, as a review of the contemporaneous medical and documentary evidence reveals that the applicant had similar struggles with her ADLs after her workplace accident. I am not convinced on a balance of probabilities that the evidence supports the applicant’s position that she is significantly impeded in her ADLs because of the accident.

27Given all of the above, I am not persuaded that the applicant has shown a class 4 Marked impairment under this domain to such a degree that her impairment levels “significantly impede useful functioning”. Taken together, the CNRs of Dr. Sokolon and Dr. Adel and the reports of Dr. Salmon, Dr. Nikkhou and Dr. Miller, as it relates to the psychological contribution to the applicant’s impairments within the activities of daily living domain, do not support her position that her psychological impairments are as a result of the accident. These reports indicate that the applicant was suffering from a number of physical, psychological and cognitive impairments before the accident. I find they also indicate that, post accident, she made significant improvements after treatment in her psychological impairment.

Social Functioning

28The factors to consider under this domain are an individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others such as family members, friends, neighbours, grocery clerks, lenders, etc. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. An individual’s ability to initiate social contact with others, communicate clearly with others and interact and actively participate in group activities are seen as strengths in social functioning.

29In her s. 25 report dated April 27, 2021, Dr. Hamilton finds the applicant to have a class 3 level of impairment under social functioning. Also, in his s. 25 report dated May 1, 2023, Dr. Shahmalak finds the applicant to have a class 3 level of impairment under this domain. Dr. Wiesenthal in her s. 44 report dated February 4, 2022, finds the applicant to have a class 2 level of impairment under this domain. In addition, the testimony of the applicant, applicant’s daughter and her self-reporting do not support a Marked impairment under this domain.

30For example, the applicant reported that pre- accident she was close with her two brothers and very close with her two daughters and post- accident she is not as close with certain family members. While she states that most of her friends and certain family members have pulled away from her over the years, this appears to be a process that began even before the accident.

31Given the evidence, and the applicant’s and her daughter’s testimony and self reporting, I find that the applicant is not significantly impeded in her social functioning as a result of the accident because these issues pre-dated the accident. I am not persuaded that she has experienced any significant change to her social functioning since, or because of, the motor vehicle accident.

Concentration, Persistence and Pace (CPP)

32The factors to consider under this domain are concentration, persistence and pace (“CPP”) and referred to as “task completion” deals with the ability to sustain focussed attention long enough to permit the timely completion of tasks commonly found in activities of daily living or work settings. Deficiencies in CPP are best noted from previous work attempts or from observations in work like settings. Strengths and weaknesses in mental concentration may be described in terms of frequency of errors, the time it takes to complete the task and the extent to which assistance is required to complete the task.

33In her s. 25 report, Dr. Hamilton finds the applicant to have a class 4 Marked impairment under this domain. Dr. Hamilton noted that the applicant takes a long time to complete tasks, she requires assistance as she is easily distracted, and she has difficulty focusing on more than one thing at a time. Dr. Shahmalak in his s. 25 report finds the applicant to have a class 3 impairment under this domain. He noted that given the significant duration of time that has elapsed since the accident, as well as the previous workplace injury and subsequent 2013 head injury, it is likely that psychiatric impairments are significantly contributing to her post-concussive symptoms. Dr. Wiesenthal in her s. 44 report finds the applicant to have a class 2 impairment under this domain.

34In my view, the evidence does not support Dr. Hamilton’s opinion that the applicant has an impairment under this domain that significantly impedes useful functioning. In their report dated October 16, 2009, Dr. Nikkhou and Dr. Salmon, clinical psychologists, indicated that the applicant was experiencing difficulties in sustained attention, verbal communication, distractibility and work/pace stamina. In addition, in his report dated March 5, 2012, Dr. Miller noted that since the December 2007 workplace accident, the applicant has short-term memory and concentration problems; her cognitive efficiency is slower; she has word finding and expressive language difficulties involving decreased fluency and reduced speech speed; and she has trouble with receptive language and comprehension. Against these facts, I find it unlikely that any of applicant’s deficit in CPP is attributable to the motor vehicle accident since her pre-accident history reveals a similar struggle.

35Therefore, any assessment of the applicant under this domain must be done in the context of the applicant’s pre- and post- accident functional abilities. I am not convinced based on the evidence and the testimony and self-reporting of the applicant that there has been a significant change between the applicant’s pre- and post-accident ability to sustain focussed attention long enough to permit the timely completion of common tasks and that this change is a result of the accident. She may be having some difficulty organizing the dishes to wash them properly, but I am not persuaded that she has an impairment level that significantly impedes useful functioning as a result of the accident.

Adaptation

36The factors to consider under this domain are: deterioration or decompensation in work or work like settings (also referred to as adaptation) refers to repeated failure to adapt to stressful circumstances. Under stressful circumstances an individual may withdraw from the situation or experience exacerbation signs and symptoms of a mental disorder. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks and interacting with supervisors and peers.

37Dr. Hamilton opines that the applicant has a class 4 Marked impairment under this domain because when she is experiencing stress she decompensates and has difficulties remembering and following through on instructions. Dr. Shahmalak also finds the applicant to have a class 4 Marked impairment under this domain. Dr. Shahmalak noted that the applicant did not demonstrate the capacity to maintain work-appropriate engagement and emotional demeanor during the assessment and there was evidence of impairment in social functioning that would interfere with her capacity to maintain work-like relationships with peers or supervisors. Dr. Wiesenthal indicated that from a psychiatric perspective and in consideration of the medical evidence, concurrent reports, her clinical experience, invalid findings on testing and inconsistency that was noted, it was her opinion that the applicant has a class 2 impairment under this domain.

38I am not persuaded by Dr. Hamilton’s and Dr. Shahmalak’s opinion under this domain. Dr. Sokolon noted on April 15, 2009, that the applicant appears to have difficulty coping with everyday life and everyday stresses that will occur with work. Also, in a letter to Great West Life dated April 16, 2009, Dr Sokolon indicated that the applicant feels she is not able to cope with the same level of stress that she was able to prior to her workplace accident. It was also his opinion that the level of stress the applicant was under with her return-to-work program was a contributor to her emergency room visit on April 05, 2009, and her syncopal episode. As such, I am not convinced that the applicant’s response when faced with stressful circumstances is substantially different post-motor vehicle accident than it was pre-accident given the pre-existing medical findings of Dr. Sokolon, Dr. Adel and Dr. Miller.

Causation

39The applicant argues that “but-for” the motor vehicle accident she would not have been catastrophically impaired. She submits that as in Sabadash v. State Farm, 2019 ONSC 1121 (Ont. Div. Ct.), the “but-for” test does not require that the motor vehicle accident be the only contributing factor to her condition. She claims there can be other contributing factors and the effect can be cumulative, but if both contribute to her injuries then the “but-for” test is met. She indicated that the Tribunal adopted this statement in 17-006372 v Allstate Canada, 2019 CanLII 43902 (ON LAT). She further submits that in Ratnam v. Primmum Insurance Company, 2021 CanLII 93249 (ON LAT) the Tribunal found that the insurer ignored the documented decline in the Applicant’s mental health and rejected the insurer’s notion that the Applicant’s mental health was an event and not a process.

40First, while I am not bound by the decisions in 17-006372 v Allstate and Ratnam v. Primmum Insurance Company, I do not find that the applicant sustained a catastrophic impairment as defined by the Schedule and as such, determining causation is not necessary. Second, and unlike in 17-006372 and Ratnam, it is clear from a review of the contemporaneous medical and documentary evidence that the accident mildly exacerbated the applicant’s pre-existing psychological impairment, resulting in little to no impact on her functional abilities. Third, the bulk of the medical evidence indicates instead that the applicant’s numerous impairments were caused by her workplace injuries in December 2007. Fourth, there is no mention in Dr. Sokolon’s or Dr. Adel’s CNRs that the accident caused or significantly contributed to her injuries. Instead, on numerous occasions over a ten-year period, these records state, even as late as January 5, 2021, that the applicant’s workplace accident on December 12, 2007, is the cause for her psychological impairments.

41As a result of the above, I find that the applicant has not demonstrated that she has at least one Class 4 Marked impairments and therefore I find that the applicant is not CAT as defined under the Schedule.

ORDER

42The applicant does not meet the definition for a catastrophic impairment.

43The application is dismissed.