Licence Appeal Tribunal File Number: 19-009136/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:
Dilshad Laljee
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Dilshad Laljee, Applicant
For the Respondent:
Jason Frost, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Dilshad Laljee, the Applicant, was involved in an automobile accident on August 27, 2009 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the “Schedule”). The Applicant was denied benefits by Aviva General Insurance Company, the Respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Did the applicant sustain a catastrophic impairment as defined under the Schedule?
Is the applicant entitled to case manager services in the amount of $4,220.55 recommended by Spine Health Care Clinic Inc. in a treatment plan dated September 9, 2015?
Is the applicant entitled to an in-home assessment in the amount of $2,231.19 recommended by Spine Health Care Clinic Inc. in a treatment plan dated January 14, 2016?
Is the applicant entitled to an occupational therapy assessment in the amount of $2,200.00 recommended by Spine Health Care Clinic Inc. in a treatment plan (OCF-18) dated February 6, 2017?
Is the applicant entitled to physiotherapy treatment in the amount of $5,117.79 in a treatment plan dated March 8, 2017?
Is the applicant entitled to occupational therapy services in the amount of $5,571.88 recommended by Rehab Results in a treatment plan dated March 15, 2017?
Is the applicant entitled to a social work assessment in the amount of $1,936.66 recommended by ARCG in a treatment plan dated August 17, 2017?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The Applicant has not sustained a catastrophic impairment as a result of the accident, as defined by the Schedule.
4Given that she has not sustained a catastrophic impairment and there is no evidence that she purchased optional benefits, she is not entitled to case management services.
5The Applicant is not entitled to issues 3, 4, and 5 as she failed to make any submissions as to their reasonableness and necessity. Further, the limitation period to dispute these plans expired prior to her LAT application filed August 8, 2019, thus they are statute barred.
6The Applicant is not entitled to the plans in issues 6 and 7. She made no submissions on these issues, and thus has not demonstrated that the proposed services are reasonable and necessary as a result of the accident.
7Since no payment is owing, no interest is payable.
8The application is dismissed.
BACKGROUND
9The Applicant was reversing out a parking space in a parking lot, when she reversed into the side of another vehicle that was travelling approximately 5km/hr. No EMS attended the scene, it doesn’t appear that the Applicant sought immediate medical attention and the third party completed a report at a collision centre.
THE LAW
10Pursuant to section 2(1.2)(g) of the Schedule, an impairment is catastrophic if, in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”), results in a class 4 (marked) impairment or a class 5 (extreme) impairment due to mental or behavioural disorder.
11Per chapter 14 of the Guides, there are four spheres of functioning that are considered in evaluating mental or behavioural impairment. The Applicant bears the onus to prove, on a balance of probabilities, that as a result of the accident she sustained a marked or extreme impairment in one of the spheres.
12Impairments are classified according to how seriously they affect a person’s useful daily function in four broad, overlapping, activity categories, or “domains” using word descriptions in a five category scale that ranges from no impairment to extreme impairment. It is not the category label that has to be assessed, but rather the language in the descriptions. Each of the four domains of functioning, classes of impairment, and rating criteria are set out in the following table from Chapter 14 of the Guides1:
| Area or aspect of functioning | Class 1: No Impairment | Class 2: Mild Impairment | Class 3: Moderate Impairment | Class 4: Marked Impairment | Class 5: Extreme Impairment |
|---|---|---|---|---|---|
| Activities of Daily Living Social Functioning Concentration Adaptation |
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 |
ANALYSIS
Catastrophic Impairment
13An OCF-19 was completed by Dr. Pflug (dated July 20, 2015) and indicates that the Applicant was catastrophically impaired under both Criteria 7 (whole person impairment) and Criteria 8 (psychological impairment). The Applicant subsequently underwent comprehensive assessments, and the experts concluded that she did not meet the threshold under Criteria 7. The dispute is whether the Applicant met the threshold under Criteria 8, therefore I have limited my analysis to the psychological impairment.
14The Applicant bears the onus of establishing, on a balance of probabilities, that she sustained a catastrophic impairment as a result of the accident as defined by the Schedule.
15I am not persuaded, on a balance of probabilities, that the Applicant sustained a either a marked or extreme impairment in one of the four spheres of function as a result of the accident. The Applicant’s pre-accident medical history is remarkable for a longstanding history of psychological impairments, which in my view, were not sufficiently taken into account by the Applicant’s assessor.
16The Applicant relies on a catastrophic assessment report prepared by Dr. William Gnam, dated January 15, 2020. It was completed in conjunction with a social work assessment by Ms. Zonenberg, dated December 27, 2018, and an occupational therapy assessment by Ms. Go, dated June 1, 2019.
17Dr. Gnam notes in his catastrophic assessment report that the Applicant had pre-existing issues, and that her self-reports were inconsistent with some of the medical information with respect to her employment and medical history. He reviewed the available medical evidence and provided ratings for her pre-MVA level of function as follows:
a) Activities of Daily Living: Class 2 to 3
b) Social Functioning: Class 3 to 4
c) Concentration, Persistence and Pace: Class 2
d) Adaptation in Work and Work-Like Settings: Class 2 to 3
18Dr. Gnam indicates that the Applicant was making gains in treatment in the months preceding the accident, which increased the plausibility that following the accident she developed new depressive and post-traumatic symptoms and further functional decline superimposed on “moderate functional impairments” that appear to have commenced prior to an accident in 1996. With respect, I do not agree that the Applicant had “moderate functional impairments” prior to the accident. I find that the evidence indicates that the Applicant’s functional impairments were quite significant. She had been unable to work in approximately 10 years, she was receiving Ontario Disability Support Program benefits (“ODSP”)and Canada Pension Plan Disability (“CPPD”) benefits, had lost her home and was living in hotels and temporary accommodations, had poor relationships with her family, and didn’t have any friends. Her behaviours and interactions with others were often inappropriate, which her doctor noted just a month prior to the accident was “clearly a personality disorder requiring psychiatric care”.
19While Dr. Gnam suggests that the Applicant was making gains in the months leading up to the accident, the evidence shows that in fact it seems quite the opposite. The Applicant was refusing psychiatric treatment, and both her physician and her social worker terminated their relationships due to her conduct. I find that the evidence clearly shows an individual experiencing significant psychological impairments prior to the subject accident.
20Contrary to the inaccurate self-reports made by the Applicant to various assessors regarding her lack of pre-accident impairments, the Applicant suffered from longstanding functional impairments, physical ailments, and psychological problems which caused the loss of her job, the forfeiture of the condo she inherited from her father, legal disputes, and a conviction for criminal harassment before the accident.
21According to a letter dated October 21, 1996 from the Applicant’s former family doctor, Dr. Paula Williams, in September 1996 the Applicant was involved in a parking lot altercation with police, which resulted in her trying to run officers over with her car. She was arrested and hospitalized. The Applicant worked part time as a high school teacher from 1997 to 1999, and then applied for long term disability benefits. It appears that the Applicant has been on leave from her job since 1999. The Applicant reportedly provided care to her ill sister until she passed away in 2003. The Applicant was hospitalized at Homewood psychiatric facility for approximately 3 months in 1999. The treating psychiatrist, Dr. Lit, indicates that she was suffering from delusional disorder (persecutory type), dysthymia, paranoid personality disorder and borderline personality disorder, and symptoms of schizophrenia. Dr. Dennis, psychiatrist, diagnosed schizoaffective disorder and paranoid personality disorder in the Statement of Disability dated July 27,1999. The Applicant’s symptoms included persistent anxiety, hypervigilance, suspiciousness, loneliness, and depression. The Applicant was also diagnosed with fibromyalgia and chronic fatigue syndrome in 1999, and she received chronic pain treatment for 8 years prior to the accident. She was approved for CPP disability benefits in 2002, and ODSP since 2003. In 2005 the Applicant was convicted of making harassing phone calls. She inherited a condo from her father, however, due to flooding in her condo which had not been repaired and failure to pay maintenance fees, she lost her home approximately a year prior to the accident. The Applicant was homeless and living in motels in the year prior to the accident. The OHIP summary indicates that the Applicant was seen for psychological issues on multiple occasions in the year prior to the accident.
22The clinical notes and records of her previous physician, Dr. Saul, cover the period from 2001 to September 2009. There are repeated references to the Applicant being “totally disabled” and “totally incapacitated” due to her physical and cognitive issues. There is an undated letter from Dr. Saul with respect to the Applicant’s appeal of the denial of her LTD claim. He indicates that her fibromyalgia and chronic fatigue syndrome was prolonged and severe, and caused a total disability from work, due to pain, fatigue, sleep disturbance and cognitive disturbance of decreased memory and concentration. In February 2009 Dr. Saul made an urgent referral to crisis management for the Applicant.
23A psychiatry assessment report dated January 27, 2009 indicates that she went to the ER on the advice of her family doctor after losing her home, struggles with legal issues, and poor relationships with family and friends. She reported poor sleep, concentration, and energy, and described her mood as depressed. The doctor noted that she had some possible paranoid thought in regard to people being against her, and that she had few friends and social supports. She was discharged from crisis services with referrals to mobile crisis. The reason for visit is noted to be anxiety/situational crisis and the discharge diagnosis is depression. The Applicant returned to the ER in April 2009 for anxiety and situational crisis. She reported a several year history of increased anxiety, related to family deaths, loss of home, medical disability, and litigation.
24The Applicant followed up with a social worker from the mobile crisis team on February 6, 2009. They note that she was feeling overwhelmed with various stressors such as losing her home, financial issues, and social isolation, causing her to feel depressed. She reported having no supports, as she had a very poor relationship with her family and did not have any friends. A further follow up on March 3, 2009 notes further stressors, and the Applicant reported that people were after her. The social worker was not sure if that was paranoid thinking or the Applicant’s personality, as they didn’t have a baseline for comparison. The Applicant denied any psychiatric history despite having previously been diagnosed with several psychiatric conditions. A psychosocial assessment report was completed by Ms. Bannerman, social worker, dated March 11, 2009. At that time, the Applicant reported a history of major depressive disorder. The writer noted that there seemed to be a long history of interpersonal alienation, vocational interruption, and housing instability. The writer queried paranoid personality problems and felt that the Applicant’s needs were primarily psychiatric.
25More progress notes from March 2009 documents further reports of anxious and depressed mood, and that she displayed limited insight and judgement with regards to mental health issues. The Applicant was resistant to seeing a psychiatrist.
26In April 2009 the Applicant returned to the emergency room, requesting a referral to a psychiatrist and for stronger medication for her depression and anxiety. She was given a prescription for more medication and a referral to a psychiatrist. In June 2009 the social worker notes that the Applicant continued to report her mood as anxious, and decreased energy, motivation, and concentration levels.
27A June 25, 2009 outpatient psychiatry report by Dr. Rajendra indicates that the Applicant had a history of major depressive disorder. She was presently living in a hotel having been evicted from her home, was struggling with legal issues and financial difficulty. She reported feeling anxious and depressed, depending on her pain levels and due to situational stressors. The doctor recommended she continue with counselling.
28The social worker followed up in July 2009, noting that she received numerous calls from the Applicant in a very distraught state. The social worker was attempting to get the Applicant to participate in a day program, but she refused. Dr. Saul and the social worker discussed referring the Applicant to a psychiatrist, but she again refused, and advised that she no longer wanted to see Dr. Saul. Further notes from July 2009 note concerns raised by the social worker because the Applicant’s behaviour towards her appeared threatening. As a result, the services were terminated.
29The records from Dr. Saul from July 2009, approximately one month prior to the accident, indicate that he terminated the relationship with the Applicant due to inappropriate behaviour towards him and his staff. Dr. Saul indicates that “this is clearly a personality disorder requiring psychiatric help which she refuses to see despite repeated suggestions” and the social worker’s recommendations. Dr. Saul’s notes also reference multiple threatening messages left in April 2009.
30On July 1, 2009, an ambulance attended the motel where the Applicant was staying. She was noted to require crisis intervention, as she was demonstrating abnormal behaviour. She described some paranoid behaviours and concerns about being attacked.
31Just a few days after the accident, the Applicant presented at the ER on August 31, 2009. There is no mention of the accident – she is noted to have a depressed mood, passive suicidal ideation, believing that people were coming after her, and feeling neglected. She refused to wait to speak to the crisis team for psychiatric consult and left.
32She returned to the ER on September 6, 2009 in crisis, requesting to be admitted. and reported being anxious and distressed. Again, there is no mention of the motor vehicle accident. Instead, she reported stresses such as having to move out of her apartment, a history of losses in her life, and feeling victimized by others. She was suspicious of others and was feeling socially isolated. The psychiatrist noted that she reported having visions, and pervasive persecutory ideation about friends, family, condo board, her family physician, etc. She was given information for the outpatient clinic to follow up.
33Despite the foregoing, the Applicant reported to various assessors that her medical history was unremarkable, and that she was teaching business studies in high school at the time of the accident. She reported that her pre-existing symptoms related to fibromyalgia had resolved prior to the accident, and she didn’t have any significant complaints. To Dr. Gnam, she reported that she was employed as a teacher and attempted to return to work after the accident.
34Dr. Gnam indicates that his approximate pre-2009 ratings provide a basis for interpreting the shift/increases in the ratings post-accident. Dr. Gnam then provides his post-accident ratings as follows:
a) Activities of Daily Living: 3
b) Social Functioning: Class 4
c) Concentration, Persistence and Pace: Class 3
d) Adaptation in Work and Work-Like Settings: Class 4
35However, Dr. Gnam’s opinion that her pre-existing depressive disorder was substantially in remission in the months immediately prior to the accident is inconsistent with the evidence. The Applicant repeatedly reported feeling anxious and depressed in the months preceding the accident.
36Dr. Gnam’s concluded that the Applicant experienced significant social functioning impairment prior to the accident, which he attributed to either paranoid personality disorder or delusional disorder.
37To me, Dr. Gnam’s ratings fail to take into account the significant degree to which the Applicant was impaired prior to the accident. While I agree that the Applicant’s impairment level significantly impeded useful functioning in Social Function and Adaptation, that level of impairment pre-dated the subject accident. I cannot find that the level of impairment was as a result of the accident. In my opinion Dr. Gnam’s pre-accident ratings for Social Functioning and Adaptation were underestimated. With respect to Adaptation, the Applicant had been on leave from her job for approximately 10 years prior to the accident. She had been receiving CPPD and ODSP since 2002 and 2003 respectively. Regarding Social Functioning, Dr. Gnam indicates that the difference in the pre- and post-accident ratings is due to her post-accident affect regulation impairment and low motivation. However, it is clear that the Applicant had issues with affect regulation prior to the accident: the evidence shows that the Applicant had a history of threatening behaviours, including in 2005 for criminal harassment (which Dr. Gnam was unaware of), she left threatening voicemails to her doctor and social worker, and both terminated their care the month prior to the accident due to her threatening behaviour. The notes of the social worker also document issues with low motivation in the months leading up to the accident. Clearly these issues were longstanding, and not attributable to the accident.
38Dr. Gnam’s report is only as accurate as the information available to him at the time of his assessment. His understanding of the Applicant’s pre-accident history and function was not accurate. Dr. Gnam did not have the benefit of reviewing the pre-accident psychiatric reports in LTD file or from the admission to Homewood psychiatric facility. The Applicant advised Dr. Gnam that she had been a teacher for more than 20 years pre-accident, however the records show she taught part time from 1997 to 1999. He was not aware of her pre-accident altercations, the conviction for criminal harassment, or that she was living in temporary accommodations for approximately a year prior to the accident. While Dr. Gnam accepted that Applicant’s self-report that she was living on her own and able to cook and clean her house, that mistaken understanding of her pre-accident function led him to misunderstand the extent of her pre-existing conditions and overstate the effect of this minor collision.
39Given these inconsistences, I am unable to agree with Dr. Gnam’s conclusions and give his opinion less weight.
40The longstanding history of the Applicant’s psychological impairment was confirmed by Dr. Tulk, the Applicant’s former family physician. After leaving the care of Dr. Saul in July 2009, the Applicant sought a new family doctor. Dr. Tulk was the Applicant’s family physician for the period from November 11, 2009 and July 21, 2010. Dr. Tulk provided a sworn affidavit dated September 7, 2016. During his initial assessments with the Applicant, she reported that she had been living in hotels for the past year following eviction from her condo. She described an extensive history, including an MVA 13 years prior, treatment for chronic pain over the last 8 years, admission to the Homewood psychiatric facility in 1999, deaths of her family members, her unemployment and pursuit of LTD benefits, and various other financial and social stressors in her life. The Applicant didn’t mention the August 2009 MVA, or any related impairments. Given that they discussed her prior MVA from 1996, he expected that the Applicant would have mentioned it if it was relevant to her care. Dr. Tulk only became aware of the accident when he was contacted by a legal representative for completion of a document. He declined to complete the requested report as there was no record of complaint relating to any injuries suffered in an accident. Dr. Tulk noted that between November 2009 and February 2010 the Applicant visited his clinic quite frequently, once or twice a week. In the course of providing care to the Applicant Dr. Tulk reviewed the prior records of Dr. Saul and the June 2009 consultation of Dr. Rajendra, which showed ongoing fibromyalgia, chronic pain, cognitive dysfunction, stress, PTSD, anxiety, mood swings, depression, and personality disorder. He opined that all of those conditions pre-dated the accident. Dr. Tulk’s overall assessment was that she suffered a complicated history of chronic pain, depression, and personality disorder for many years prior to August 2009. He could not diagnose any impairments as a result of the accident, as he was not advised of the accident during the course of his care, and he did not observe any physical or psychological impairments attributable to the accident.
41Benefits are only payable for accident-related impairments. According to Dr. Tulk, the treating family doctor and his contemporaneous notes from that time, there were no accident-related impairments.
42Based on all of the evidence, I find that the Applicant has not met her onus to prove that she suffered a catastrophic impairment as a result of her accident-related injuries.
The Applicant is not entitled to case management services
43Per s.17(1)(a) and (b) of the Schedule, the Applicant is not entitled to case management services unless she is deemed catastrophically impaired as a result of the accident or if she purchased optional benefits from the insurer.
44Given that the Applicant is not deemed catastrophically impaired, and no evidence presented that she purchased optional benefits, the Applicant is not entitled to case management services.
The Applicant is not entitled to the treatment plans in issues 3, 4 and 5
45The Applicant made no submissions as to why these treatment plans are reasonable and necessary.
46Further, the two-year limitation to appeal the denial of these treatment plans had expired prior to the LAT application and is barred per s. 56 of the Schedule. The Applicant failed to make any submissions with respect to the limitation issue, therefore I decline to exercise my discretion to extend the limitation period for these claims pursuant to section 7 of the Licence Appeal Tribunal Act.
The Applicant is not entitled to the treatment plans in issues 6 and 7
47The Applicant made no submissions as to why these treatment plans were reasonable or necessary. I find that the Applicant has not discharged her burden to prove that these plans are reasonable and necessary.
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.
ORDER
49The Applicant has not sustained a catastrophic impairment as a result of the accident, as defined by the Schedule.
50Given that she has not sustained a catastrophic impairment and there is no evidence that she purchased optional benefits, she is not entitled to case management services.
51The Applicant has not met her burden to prove that the remaining treatment plans were reasonable and necessary. Further, the limitation period to dispute the plans with respect to issues 3, 4, and 5 expired prior to filing her LAT application, thus they are statute barred.
52Since no payment is owing, no interest is payable.
53The Application is dismissed.
Released: July 31, 2023
Kate Grieves
Adjudicator
