Islamovic v. Co-operators General Insurance Company, 2023 CanLII 67922

Islamovic v. Co-operators General Insurance Company

Citation: Islamovic v. Co-operators General Insurance Company, 2023 ONLAT 21-006080/AABS

Licence Appeal Tribunal File Number: 21-006080/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:

Muradija Islamovic

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Taivi Lobu

APPEARANCES:

For the Applicant:

Anushika Anthony, Counsel

Dimithra Anthony, Counsel

For the Respondent:

Stanislav Bodrov, Counsel

Interpreter (Bosnian)

November 14 & 15, 2023:

Court Reporters:

Anna Velikonja

Linda Litt, Marbrae Court Reporting

Kelly Lockley, Marbrae Court Reporting

HEARD: by Videoconference:

November 14, 16, 16, 17, 22 and 23

OVERVIEW

1Muradija Islamovic, the applicant, was involved in an automobile accident on November 4, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was a front-seat passenger in a Honda CRV going through an intersection, when her vehicle was struck by a truck making a left-hand turn. Her vehicle was deemed a write-off. Amongst her injuries the applicant suffered an L1 compression fracture to her lumbar spine, a foot fracture and ankle sprain. The applicant, who is in her early 50s, has not worked since the accident, has been receiving treatment for chronic pain, and faces other accident-related challenges.

3The applicant and respondent disagree as to whether the applicant has sustained a catastrophic impairment because of the accident. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

4At the outset of the hearing, I was asked to address a contested motion filed by the applicant to admit documents disclosed to the respondent after the production deadlines set out in a Case Conference Order.

5The Case Conference Order directed the exchange of productions by July 8, 2022. The applicant was to produce “Complete records from family” (sic) and the respondent was to produce the accident benefits file and a summary of benefits paid to date. The respondent may have sought additional productions at the Case Conference, but whether because of typo/clerical error or other reason, such productions do not appear in the Order. No correction to the Case Conference Order had been sought by either party.

6The Case Conference Order set one other date for productions: October 14, 2022. This was the deadline for any items responsive to what had been produced. The Order was silent as to the production of any other records, documents or reports for the hearing.

7On July 12, 2022, after the initial production exchange deadline, the respondent scheduled s. 44 insurer examinations for August 11 (with Dr. N. Philips, psychiatrist), and September 13 and 14, 2022 (with Mr. C. Wong, occupational therapist). The respondent produced the reports from these insurer examinations on October 4, 2022.

8On November 1, 2022, the applicant filed the motion to have the following accepted as evidence: a rebuttal report to Dr. Philips’ section 44 report and updated clinical notes and records of Dr. J. Dhaliwal from 2022 (a treating psychiatrist seen by the applicant on three occasions in 2020 and on three occasions in 2022).

9The applicant submitted that she would be prejudiced if she could not respond to the insurer examination reports which were produced in October, and that she sought a rebuttal report promptly upon receipt of Dr. Philips’ section 44 report. The applicant stated that the rebuttal report did not contain new information but was a review of existing information. It was also submitted that applicant’s counsel was unaware of the 2022 treatment records of Dr. Dhaliwal prior to October 2022, and that the merits of the inclusion of such records outweigh the prejudice caused by late production.

10In addition, the applicant submitted that the respondent did not produce the accident benefit file by July 8, 2022 as required by the Case Conference Order, but on October 6, 2022. The respondent’s accident benefit file produced at that time included clinical notes and records of Dr. Dhaliwal (from 2020); the applicant’s family physician (2014 – 2021); a Pain Clinic Report (2020); the decoded OHIP summary (to 2021) and prescription summaries (2018- 2021). After reviewing this late production from the respondent, the applicant produced updates of these documents on October 31, 2022.

11The respondent submitted that its assessors did not have an opportunity to review and respond to the rebuttal report. The respondent took the position that the late filing of documents was akin to trial by ambush and should not be permitted.

12An accident benefits dispute should be determined on the merits, with parties having a fair opportunity to present their case. This was underscored by the Divisional Court in Lockyear v. Wawanesa Mutual Insurance Company, 2022 ONSC 94.

13Rule 9.2 of the Common Rules of Practice and Procedure requires that a party shall, at least 10 days before the hearing, or at any time ordered by the Tribunal, disclose the existence of any document which it intends to present at the hearing. Under Rule 9.4 I have discretion to allow evidence even where a party has failed to comply with production orders.

14In this case, there have been issues with adhering to production dates on both sides. Both parties ought to have taken additional measures. Be that as it may, I am satisfied that at this juncture both parties have had adequate notice of the evidence sought to be relied upon. The evidence is presumptively relevant. Most of the documents at issue were updates of previously produced records. The documents were produced close to two weeks prior to the hearing. If there were specific issues raised by the new productions, the respondent had opportunity to address this in the course of the eight days scheduled for the hearing. I admitted the documents at issue.

ISSUES

15At the outset of the hearing, the applicant advised that all issues had been resolved with the exception of the following:

i. Has the applicant sustained a catastrophic impairment as defined by section 3.1(1)8 of the Schedule? (Criterion 8)

RESULT

16The applicant is catastrophically impaired under Criterion 8.

ANALYSIS

Does the applicant have a catastrophic impairment?

17The issue before the Tribunal is whether the applicant has demonstrated, on a balance of probabilities, that as a result of the 2018 motor vehicle accident she sustained an accident-related impairment defined as catastrophic by the Schedule. I find that she has.

18The application for catastrophic impairment determination was made under section 3.1(1)8 of the Schedule (Criterion 8). Impairment under Criterion 8 is an impairment resulting from a mental or behavioural disorder. It was submitted by Dr. Lisa Becker on March 15, 2022 under section 45 of the Schedule and was based on a “Catastrophic Impairment Summary and Analysis Report” completed by physicians Dr. L. and Dr. H. Becker (the Becker report).” In completing the Becker report, the physicians were assisted by the assessments of Dr. G. Braganza (psychologist) and Ms. Z. Bukhari (occupational therapist).

19The respondent determined that the applicant was not catastrophically impaired and relied upon a report of psychiatrist Dr. N. Phillips. The respondent had also obtained occupational therapy assessments conducted by Mr. C. Wong, occupational therapist.

Mental and behavioural disorder

20In Pastore v Aviva, 2012 ONCA 642 the Court of Appeal set out the following approach for determining whether a person has sustained a catastrophic impairment due to a mental or behavioural disorder:

i. Did the accident cause the applicant to suffer a mental or behavioural disorder?

ii. If it did, what is the impact of the mental or behavioural disorder on the applicant’s life and the level of impairment?

Is there an accident-cause mental or behavioural disorder?

21I will first address whether the accident caused the applicant to suffer a mental or behavioural disorder. The Becker report relied upon the psychological diagnosis of Dr. Braganza. In addition to documentary and witness evidence from Dr. Braganza, the applicant presented further evidence pertaining the diagnosis of a mental or behavioural disorder, including the clinical notes and records of Dr. J. Dhaliwal, a treating psychiatrist who had seen the applicant for a few visits in 2020 and again in 2022. The respondent relied on the catastrophic impairment assessment and witness evidence of Dr. Philips, and also produced previous psychological assessments conducted by Dr. J. Seigel.

22While there was some variance in diagnoses, all of the psychologists and psychiatrists who assessed the applicant noted accident-related symptoms of depression, anxiety, driving phobia, post traumatic stress, and an adjustment disorder.

23The main difference between Dr. Braganza’s and Dr. Philips’ assessment of the applicant’s mental and behavioural disorder was the extent to which pain was considered in the course of the Criterion 8 assessment. This is important as pain plays a significant role in the applicant’s limitations. If an impairment is not related to a mental or behavioural disorder, it is not included under Criterion 8.

24I prefer Dr. Braganza’s assessment of the applicant’s mental and behavioural disorder to that of Dr. Philips.

25Dr. Braganza determined that the applicant met DSM-V criteria for diagnoses including adjustment disorder with depressed mood, specific phobia (related to vehicular travel), features of post-traumatic stress disorder and somatic symptom disorder with predominant pain. Dr. Philips diagnosed the applicant with adjustment disorder with anxious and depressed mood, driving phobia and signs of post-traumatic stress.

26While Dr. Philips testified that limitation caused by pain would have been covered by his diagnosis of adjustment disorder, he expressly stated in his report that he did not rate impairment caused by pain. Dr. Braganza on the other hand, included pain-based impairment.

27I prefer Dr. Braganza’s approach inclusion of pain-based impairment. The applicant had been diagnosed by “somatic symptom disorder with predominant pain” by both Dr. Braganza and another psychologist, Dr. Siegel who had conducted other insurer examinations of the applicant.

28Dr. Braganza’s diagnosis was supported by psychometric testing. The Personality Assessment Inventory (PAI) showed somatic concerns and difficulties consistent with a significant depressive experience; the Pain Catastrophizing Scale (PCS) which showed a high score, with significant rumination about pain, magnification, and elevation on the helplessness scale; the Tampa Scale for Kinesiophobia (TSK) which had an elevated score on the scale for fear of movement/reinjury; the Pain Patient Profile (P3) which identified a valid profile of emotional distress associated with pain, with the applicant’s responses above average for depression and somatization.

29In addition, Dr. Siegel’s insurer examination report of 2020 found that the applicant had “a significant tendency to catastrophize about pain which suggests that psychological factors may continue to be operative in the clinical picture.” In subsequent insurer examination reports dated January 27, 2022, Dr. Siegel expanded his diagnoses to include somatic symptom disorder with predominant pain, reflecting increases in somatization scores and ratings on the pain catastrophizing scale and noting that “Psychological factors may play a role in maintenance, intensification and perpetuation of pain.”

30Lastly, the involvement of pain on the applicant’s mental and behavioural condition was documented by both psychiatrists who had assessed the applicant. Dr. Philips affirmed that the applicant’s low frustration tolerance was affected by pain. The applicant’s treating psychiatrist observed that the applicant’s symptoms of persistent depressive disorder and PTSD were going on “side by side” and worsened by pain.

31As confirmed in paragraph 68 of the Court’s decision in Pastore, where an individual’s diagnosed mental disorder includes pain associated with a general medical condition, then it is reasonable to include such pain when determining an individual’s impairment level under Criterion 8. I am satisfied that it is appropriate to consider pain-based limitations in the applicant’s impairment level under Criterion 8.

Presutti/Brunshaw Report

32Before leaving the matter of the applicant’s mental and behavioural disorder, I note that the applicant included in her evidence a document entitled “Psychological Report” issued under the letterhead of Complete Rehab Centre, and signed by Nicole Presutti, as registered psychotherapist, and Dr. J. Brunshaw, as supervising psychologist. It was based on a review of the Becker report, Ms. Presutti’s interview of the applicant and the administration of psychometric tests. It was not part of any of the assessments employed for the Becker report.

33The Presutti/Brunshaw report contains a section entitled “Diagnosis” which states “it is our opinion that… “ and sets out the following DSM-5 criteria for the applicant:

i. Adjustment Disorder with Anxiety

ii. Major Depressive Disorder, Single Episode

iii. Specific Phobia, Situational Type (Vehicular: driver, passenger, pedestrian), Severe level of severity

34I am not relying on this report for my findings. In Ontario, psychologists, psychotherapists, physicians, social workers, occupational therapists and nurses can be qualified to treat cognitive, emotional or behavioural disturbances. However, the ability to communicate a diagnosis identifying the cause of a person’s symptoms, a neuropsychological disorder or psychologically based psychotic, neurotic or personality disorder, is restricted to psychologists and physicians (see section 27(1) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, and relevant health professional legislation.)

35The Prescutti/Brunshaw report is co-signed by Dr. Brunshaw as a supervisor. While the report is entitled “psychology report,” it appears that Ms. Presutti, who is not a psychologist, is the prime author of the report and is, at least in part, communicating the diagnosis. She is not qualified to communicate to do so: only Dr. Brunshaw is. While Dr. Brunshaw has co-signed the report, there is no suggestion that her role in the assessment was anything beyond supervising a psychotherapist. Even if Dr. Brunshaw’s regulatory college accepts such a practice as being within professional standards for psychologists, it affects the weight to be assigned to the work product. A person acting in the capacity of a registered psychotherapist is not authorized to communicate a diagnosis.

What is the impact of the mental or behavioural disorder and level of impairment?

36Criterion 8 determinations under the Schedule employ the American Medical Associations’ Guides to the Evaluation of Permanent Impairment 4^th edition, 1993 (AMA Guides). The AMA Guides set out four functional domains: (1) activities of daily living; (2) social functioning; (3) concentration, persistence and pace and (4) adaptation (deterioration or decomposition in work or work like settings).

37There are four levels of impairment within each domain: no impairment, mild impairment, moderate impairment, marked impairment and extreme impairment. The levels are explained in the Table below:

Area of functioning:

Class 1: No Impairment

Class 2: Mild Impairment

Class 3: Moderate Impairment

Class 4: Marked Impairment

Class 5: Extreme Impairment

Description:

No impairment noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some but not all useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

38An impairment is catastrophic under Criterion 8 of the Schedule if, as a result of a mental or behavioural disorder, a person has an “extreme” level of impairment in any one of the four functional domains or has a “marked” level of impairment in at least three of the four functional domains. The onus is on the applicant to demonstrate this on a balance of probabilities.

Criterion 8 – Impairment Levels - Positions of the Parties

39The Becker report, relying upon the assessments of Dr. Braganza and Ms. Bukhari, determined that the applicant had a marked level of impairment in three of four domains of function under Criterion 8: activities of daily living; concentration, persistence and pace; and adaptation. With regard to social functioning, the Becker report assessed the applicant as having a mild impairment.

40In contrast, the respondent submits that the applicant has not demonstrated she meets Criterion 8 impairment levels. The respondent relies on the evidence of Dr. Philips who determined that the applicant has moderate impairments in the domains of social functioning and adaptation; and mild impairments in the domains of activities of daily living and concentration, persistence and pace.

41For the reasons that follow, I prefer the applicant’s position as to impairment levels. While only physicians are entitled to conduct an assessment or examination in connection with the determination of catastrophic impairment, under section 45(2)1 of the Schedule, they can be assisted by other regulated health professionals in doing so. In this case, the physicians conducting this assessment for the applicant (Drs. Becker and Becker) where assisted with regard in the Criterion 8 analysis by the assessments of Dr. Braganza and Ms. Bukhari.

42When considering the applicant’s status under Criterion 8 function, I had the benefit of the witness evidence of the applicant, her family physician Dr. Myat, Dr. Braganza, and Dr. Phillips. I also had the benefit of a range of documentary evidence - including documentation from the physicians and psychologists identified earlier in this decision as well as the occupational therapy functional assessments by Ms. Bukhari on behalf of the applicant, and Mr. Wong on behalf of the respondent.

43The occupational therapy functional assessments did not rate Criterion 8, impairment levels, but did provide relevant professional observations and evaluations of the applicant’s function. Ms. Bukhari’s two day evaluation carried out on December 7 and 8, 2021, included a clinical interview, objective observations, physical, cognitive and functional testing, and a review of collateral information. Mr. Wong’s two-day assessment carried out September 13 and 14, 2022, was similar - including a review of documentation, an applicant interview, a non-standardized cognitive screen and observation of physical and cognitive abilities and psycho-emotional responses during functional tasks.

44Dr. Braganza’s assessment was based on a clinical interview of the applicant as well as other documentation including collateral information from the applicant’s husband. Her March 2022 mental/behavioural evaluation relied significantly on the occupational therapy assessment report of Ms. Bukhari and transparently included as part of her analysis, relevant observational information of the applicant in functional assessment settings. Mr. Wong’s assessment report was not available at the time.

45Dr. Philips’ assessment was based on a clinical interview of the applicant. For his September 2022 report he also had other documentation for review, including the occupational therapy reports of Ms. Bukhari and Mr. Wong. Dr. Philips did not reference information from the occupational therapy assessments in his report’s analysis of impairment levels.

46The respondent submits that occupational therapists are not qualified to provide opinions on Criterion 8 status or psychological and emotional conditions. While I agree that occupational therapists are not qualified to diagnose, I find no issue with either Ms. Bukhari’s or Mr. Wong’s evidence.

47First, the scope of practice for occupational therapists includes the assessment of function and adaptive behaviour in the areas of self-care, productivity and leisure (see section 3, Occupational Therapy Act, 1991, S.O. c.33). Given this express scope of practice, occupational therapy functional assessments provide information directly relevant to determining factors under Criterion 8.

48Secondly, Ms. Bukhari’s role as an occupational therapist was carried out under 45(2)1 of the Schedule. This section specifically provides for physicians being assisted by regulated health professionals in carrying out catastrophic impairment assessments. Ms. Bukhari was part of the team of regulated health professionals together with Dr. Braganza, assisting Drs. L. and H. Becker, in their assessment of the applicant’s catastrophic impairment status.

49I am satisfied that Ms. Bukhari’s report was suitably completed as an occupational therapy evaluation, which assisted Drs. Braganza in determining Criterion 8 domains of function, and in assisting in the catastrophic impairment assessment of Drs. Becker and Becker. Accordingly, I accept Ms. Bukhari’s evaluation as a occupational therapist, when addressing impairment levels in the domains of functioning under Criterion 8.

Functional Domain: Activities of Daily Living

50Chapter 14 of the AMA Guides describe “Activities of Daily Living” as including activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities. The Guides state:

In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

51When explaining what is meant by the overall degree of restriction, the AMA Guides give the example that while a person might be able to cook and clean, if they were too fearful to leave the home to shop or see a physician, the restriction may be considered marked.

52When comparing the applicant’s pre and post activities of daily living, Dr. Philips concluded that the applicant had a mild level of impairment in this realm. The applicant’s assessors however concluded that the applicant suffers a marked impairment. I prefer assessment. I find that the evidence shows on a balance of probabilities that the mental and behavioural disorder arising from the applicant’s accident-related impairment significantly impedes useful functioning.

Pre and Post Accident Activities of Daily Living

53Prior to the accident, the applicant, who is in her early 50s, was in good health, physically and mentally. She worked four to five days a week, with a steady part-time position as a department store sales associate. The applicant had been independent for many years, driving her car to support her family and herself, accessing the community for work, shopping and other activities. She ran her household, which included her husband and two children (both of whom are now in their early twenties and living at home). While assisted by her husband with outdoor maintenance and occasionally with cooking, she played the central role in the home, responsible for preparing meals for her family, household chores, laundry, grocery shopping, and a good portion of the gardening. She would see friends about twice a month, engage in family activities once or twice a week, go hiking on weekends, attend restaurants and engaged in other local recreation. She attended the mosque weekly, vacationed annually, and visited her family in Bosnia every couple of years. She had an active and fulsome life with her family and friends.

54Post-accident, the applicant is unable to work and basically homebound. She is afraid of being in the car. She avoids vehicular travel unless her husband or daughter is driving and even then, is overly vigilant with her heart racing, trouble breathing at intersections, and other symptoms. She testified about what she described as panic attacks. Her husband has had to take time off to drive her to appointments as it is hard for her to be in a car with others: she puts her head down, gets nauseous and tries to hide her anxiety. She testified that she has attempted to drive since the accident, but almost caused an accident because of her fear – this last effort to drive was about two years ago. She testified that she has nightmares if she sees an accident on television, she has flashbacks, and recently when a friend of hers had an accident, it was as if her own accident was happening to her again. Her vehicular anxiety was observed by both Ms. Bukhari and Mr. Wong in the occupational therapy assessments when a taxi or uber was used.

55During her two-day occupational therapy assessment with Ms. Bukhari, she stated that she had could not tolerate busy, crowded or unfamiliar places, that she avoids going into the community unaccompanied as she is more likely to become disoriented and confused. She is afraid she will faint or become dizzy, or that her body would give up physically. Her husband in a collateral interview advised Dr. Braganza that the applicant stayed home almost 24/7, with her anxiety, sadness and irritability increasing with time.

56Because of her fear of driving and avoidance of public places the applicant testified that she does not go see her friends, they have to come to see her, and she testified seeing them now maybe every three to four months.

57The evidence shows that the applicant is able to participate in some activities of daily living. For example, she is able to carry out self-care and personal hygiene, albeit with slowness and difficulty. She reports a varied sleep pattern with five to six hours of non-restorative, noncontinuous sleep per night, contributing to fatigue during the day. To keep herself spiritually stable, she now prays three to five times per day in her home, rather than two to three. Pre-accident she attended the mosque weekly but now rarely attends religious activity in the community. She reported changes in her marital life, financial management and decision-making. She currently stretches up to an hour per day, breaking that up over the day and will go for 10- or 15-minute walks. She avoids grocery shopping because of the need to travel to the store, cognitive issues and ongoing emotional difficulties. She occasionally accompanies her husband grocery shopping, but when she does, she generally will not stay in the store and will wait in the car for him. She testified that her husband does 90 percent of the grocery shopping now, with her daughter also helping out.

58Pre-accident, the applicant was responsible for household chores and meals, cooking some two to three hours per day. She attempts to cook simple meals twice a week but often requires her husband or daughter to complete the task or food is ordered in. She testified that her husband now does most of the cooking, occasionally her daughter helps and her son sometimes orders in food for the family. She no longer does laundry independently and relies significantly on her daughter, who will leave the clean laundry on the bed for the applicant to fold. Other family members do most meal clean up - she unloads the top drawer of the dishwasher and may wipe down the kitchen counter or dining table. She stated that she can do small household chores totalling up to one hour in a day. This is in the context of the applicant being at home almost 24/7. Household cleaning, previously the applicant’s responsibility, is primarily left to the other family members, with a cleaner attending the home every three weeks.

59The above reports were consistent with both Mr. Wong’s and Ms. Bukhari’s observations of the applicant’s function in the course of their two-day functional assessments. Ms. Bukhari documented that the applicant had an almost complete cessation in her ability to engage in housekeeping tasks in a sustained and efficient manner.

Comparative Impairment Level Assessments

60I prefer Dr. Braganza’s analysis of impairment level in activities of daily living to that of Dr. Philips.

61First, as noted earlier, I find it appropriate in this case to include pain-related restriction under Criterion 8. Dr. Braganza stated in her analysis and testimony that the applicant avoids activities because of pain, worries about activity or pain causing damage, fears re-injury, and ruminates about pain/somatic symptoms. Dr. Braganza also described the applicant’s reported weakness and imbalance due to pain; dizziness and tremors related to anxiety. Dr. Philips on the other hand stated in his report that limitation due to pain was not rated. He expressly excluded pain-related impairment in determining that the applicant was capable of living independently and performing almost all of the activities of daily living.

62It also appears that Dr. Braganza’s appreciation of the applicant’s circumstances is more consistent with other evidence of the applicant’s experience in this domain, and is thus preferred. For example, in his five-line assessment of the applicant’s impairment under activities of daily living, Dr. Philips describes the applicant as “enjoying the support of her husband.” While this may well be true, it appears to be a consequence of the applicant’s restrictions rather than a matter of choice - particularly when considered alongside Ms. Bukhari’s functional assessment which for example, describes the applicant as breaking down emotionally during the assessment when speaking of how difficult it was for her not to be able to maintain her home and to have her children and husband burdened with her responsibilities.

63Lastly, while Dr. Philips reported that his opinion encompassed limitations due to fatigue, his appreciation of the applicant’s limits in this regard appeared to be primarily based on interview data. It did not address features observed during both Mr. Wong’s or Ms. Bukhari’s occupational therapy assessments. Both occupational therapists reported a need for significant breaks and observed compromised functional performance because of pain and fatigue. I will address some examples from the functional assessments below.

Examples from Functional Assessment

64During Mr. Wong’s in-home assessment, about one and a half hours into his meeting with the applicant, the applicant was asked to complete four household chores in one and a half hours. The tasks were as follows: meal preparation (a simple meal using the stove and at least three main ingredients); meal setup (setting a table with four plates, four cups and four utensils); meal clean up (loading the meal setup dishes into the dishwasher); and cleaning the bathroom (sink, toilet and shower).

65The applicant indicated that she was too tired and in too much pain to prepare the meal during the Wong assessment, so this was not attempted. For the meal set up, the applicant took three breaks totalling 20 minutes, but she continued and completed the meal set up at the 29-minute mark. The meal clean up (loading the dishwasher with the four plates, four cups and four utensils) took 9 minutes. Mr. Wong observed that during the process, the applicant exhibited pain behaviours, slow transitions, and weakness, becoming emotional and tearful at points. After 29 minutes when she completed the two tasks, she took a 16-minute break, and then at the 54-minute mark, she indicated that she could not continue to attempt any other tasks and needed to lie down. The bathroom cleaning task was abandoned. No further household chores could be attempted that day.

66During the Bukhari assessment, when seeking to complete simple housekeeping tasks, the applicant’s efforts to push through was observed as being accompanied by significant physical and emotional distress (tearfulness, shaking, emotionality) despite efforts to accommodate through taking breaks and using physical supports. The applicant had to withdraw from the assessment prematurely – just after the half-way point for the day. Ms. Bukhari had scheduled six hours for each of the two assessment days. Even with extended and/or frequent breaks the applicant withdrew from both the Wong and Bukhari assessments after close to three hours on each of the four days.

67Limits were also observed in non-physical activity. For example, in a 25-minute planning and scheduling task in the Wong assessment, 14 activities and errands were to be scheduled into a blank calendar with instructions. Mr. Wong observed that the applicant had difficulty understanding the instructions, which he repeated numerous times. Pain behaviours were demonstrated during the activity and just after the halfway point for the time allotted, the applicant asked to withdraw from the task. At that point, the applicant had entered four of the 14 activities/errands into the blank calendar, with one of the four entries being incorrect, and one of the rules being broken. Mr. Wong documented emotionality throughout the assessment, noting that the applicant was upset, tearful and cried on numerous occasions when discussing her difficulties and when she noted her pain as aggravated.

68Even with substantial breaks in both the Wong and Bukhari assessments, tasks were significantly uncompleted and assessments prematurely terminated because the applicant could not continue.

69I find that Dr. Braganza’s finding of a marked impairment which was adopted by the Becker report, is in accord with the findings of both functional assessment, whereas Dr. Philips’s conclusion that the applicant only suffers a mild impairment in activities of daily living, is not.

Conclusion – Activities of Daily Living

70Under the AMA Guides, it is not the number of activities that are restricted that is important, but the overall degree of restriction; and the quality of the activities of daily living are judged by their independence, appropriateness, effectiveness and sustainability. Other than daily prayer which the applicant is currently engaged in three to five times a day in her home, and self-care/personal hygiene which the applicant carries out on a somewhat compromised basis, the applicant’s restrictions are significant: she is unable to work, relies on other family members to substantially carry out nearly all other activities, and is significantly homebound.

71Given the applicant’s pre-accident level of independence, employment, activity in the community, and responsibility in her household, and considering the pain-related components of the applicant’s mental and behavioural disorder identified by Dr. Braganza, I find that the applicant is significantly impeded in her activities of daily living under Criterion 8 – a marked level of impairment.

Domain of Function: Concentration, Persistence and Pace

72According to the AMA Guides, the domain of concentration, persistence and pace speak to qualities needed to perform many activities of daily living including task completion:

Task completion refers to the ability to sustain focussed attention long enough to permit the timely completion of tasks commonly found in activities of daily living or work settings…Strengths and weaknesses in mental concentration may be described in terms of frequency of errors, the time it takes to complete the task and the extent to which assistance is required to complete the task.

73Dr. Braganza found that the applicant suffers a marked impairment in this domain – that the mental and behavioural disorder arising from her accident-related impairment significantly impedes useful functioning in the domain of concentration, persistence and pace. Dr. Philips found the applicant to have a mild impairment.

74I prefer Dr. Braganza’s assessment over that of Dr. Philips in this domain. Apart from the question of pain-related issues, she specifically encompassed data from the functional assessment of Ms. Bukhari. (Mr. Wong’s functional assessment was not available to her at the time).

75Dr. Philips’ finding of a mild impairment in this domain was based on his assessment that she was able to initiate and complete tasks, her focus and attention were preserved when she was doing her own tasks, and that she could pray, read and watch television. However, the informational foundation for his conclusion appears to be more limited than that of Dr. Braganza. His analysis primarily relied upon his evaluation of the applicant’s mental functioning as presented in the interview setting and the information provided during this meeting with her. As noted earlier, while Dr. Philips listed both the Wong and Bukhari reports in his available documentation, he did not reference data from the functional assessments in his report’s analysis.

76Dr. Braganza testified that when someone is challenged functionally, it is important to see if they can manage tasks and consider what happens when they are asked to perform tasks. She expressly stated that her opinion about the applicant’s concentration, persistence and pace would have been different had she not included the functional data, particularly given that the applicant had completed the interview in under two hours with only one break.

77I accept that in this case the functional observations in the occupational therapy assessments are important for the assessment of the applicant in this domain - particularly given consistent observations of the applicant’s deterioration when challenged by tasks.

78Task-related activity in both the Wong and Bukhari assessments show substantial issues in task completion, frequent breaks and impeded pace. For example, in addition to the applicant’s challenges with the calendar task referenced earlier, Mr. Wong noted that she was unable to follow instructions for a loom construction task, withdrawing prior to completing and having significant errors in the segments completed. From both days of assessment, Mr. Wong found that the applicant performed poorly, observing her struggle to complete functional test items, her decreased pace of work, and the lengthy breaks needed in what she did participate in.

79Ms. Bukhari described the applicant’s early withdrawal from tasks due to heightened pain symptoms and emotional decompensation. The applicant withdrew from the first day’s housekeeping task after attempting two of five activities, only having completed one with noted difficulty. On her second assessment day, the applicant was unable to engage in light work-related tasks (arranging clothing): she was seen to make best efforts to persist, but this took a toll on her emotional well-being, and she had to withdraw. She took a lengthy break, attempted a further light task but had to withdraw after fourteen minutes despite modifications offered. The applicant attempted a cashier task (similar to her previous work) but had to withdraw after twelve minutes as she could not sit, focus and engage. She apologized for her inability to complete tasks and was described as discouraged and defeated. Ms. Bukhari had to prematurely terminate both days of assessment at close to the three-hour mark, with close to half of the testing time remaining on both days. Ms. Bukhari attributed to the premature termination due to factors such as pain, fatigue and emotional decompensation.

80Ms. Bukhari’s and Mr. Wong’s observations were also in accord with other observations of the applicant’s ability relevant to this domain. Dr. Braganza noted that the psychometric testing, which, usually takes one and a half hours, took the applicant close to three and a half hours. The applicant’s self-reporting to Dr. Braganza included difficulties with focusing and sustaining attention, distractibility, and occasional slower information processing speed.

81While the applicant may have some capacity to read or watch television, the applicant testified that she has trouble reading as her mind is running and her thoughts are flying around. She reported to Dr. Braganza that when completing paperwork, she has to re-read information a few times due to concentration difficulties and she is not sure what she is reading and that her distractibility affects her ability to watch television and movies.

82I find that the preponderance of the evidence supports Dr. Braganza’s conclusion that the applicant has a marked impairment under Criterion 8 in this realm.

Area of Function: Adaptation

83The AMA Guides explain the domain of Adaptation (or “Deterioration or Decompensation in Work or Work-like settings”) as:

repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation signs and symptoms…He or she may decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks. Stressors common to the environment include attendance, making decisions, scheduling, completing tasks and interacting with others.

84Dr. Braganza found the impairment at a marked level in adaptation whereas Dr. Philips assessed the applicant with a moderate level of impairment. Again, I prefer Dr. Braganza’s assessment in this realm.

85As noted earlier, Dr. Philips did not reference the observations of the applicant in functional assessment settings, and Dr. Braganza found that functional data about the applicant provided important information not otherwise available to her. I agree that information relevant to assessing adaptation would not necessarily be available in an interview setting alone.

86Dr. Braganza testified that the applicant’s emotional state affected her adaptation, with even mild stressors leading to emotional decompensation. This was supported by the observations of both Mr. Wong and Ms. Bukhari, who reported the applicant as becoming upset, tearful and crying in the course of the functional assessments, particularly when challenged by tasks. Both assessments documented the need to prematurely terminate activity.

87In reviewing the applicant’s performance, Ms Bukhari observed that the applicant would “shake, become frustrated, and become largely discouraged with her inability to manage activities […] Ms. Islamovic decompensated rapidly over the course of each testing day and from one testing day to the next.” Neither the Wong or Bukhari reports suggest any credibility concerns, nor did I observe any in the applicant’s testimony.

88I find that Dr. Braganza’s determination of the applicant’s impairment in the domain of adaptation domain is consistent with both functional assessments and preponderance of other evidence.

89Particularly when considering the evidence of the applicant’s active and diverse engagement in her pre-accident life, I find that the preponderance of evidence shows that the applicant’s mental and behavioural disorder significantly impedes the applicant in the domain of adaptation.

Areas of Function: Social Functioning

90Social Functioning is the fourth domain of function under the AMA Guides for Criterion 8 assessment. As I have found the applicant to have a marked impairment in three of four domains of function and the applicant does not assert that she has a marked impairment in Social Functioning, it is not necessary to address this domain.

Conclusion – Catastrophic Impairment

91I find that the applicant has demonstrated that as a result of mental or behavioural disorders, she suffers marked impairments in the domains of activities of daily living; concentration, persistence and pace; and adaptation. She therefore is catastrophically impaired under section 3.1(1)8 of the Schedule.

ORDER

92The applicant is catastrophically impaired under section 3.1(1)8 of the Schedule.