Licence Appeal Tribunal File Number: 21-015103/AABS
In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Fawzi Abboud
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Frank McNally, Counsel
For the Respondent:
Tessie Kalogeras, Counsel
Interpreter:
Bayan Quandla (Arabic language)
Court Reporters:
Celina Servanez, Daminee Salahuddin & Graeme Peto
Captioner:
Abby Estes
Heard by Videoconference:
December 16-20, 2022
OVERVIEW
1Fawzi Abboud, the applicant, was involved in an automobile accident on September 2, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule1 (the “Schedule”). The applicant was denied certain benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
a. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
b. Is the applicant entitled to housekeeping and home maintenance benefits of $100 per week from September 2, 2013, to date and ongoing?
c. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
d. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not catastrophically impaired.
4The applicant is not entitled to housekeeping and home maintenance benefits or interest.
5The applicant is not entitled to an award or interest.
LAW
6The applicant’s application for determination of catastrophic impairment (the “OCF-19”)—completed by Dr. Uchenna Ofokansi (psychiatrist) on August 17, 2020—indicates Criteria 7 and 8 are at issue.
7For Criterion 7, the applicant must satisfy the Whole Person Impairment (the “WPI”) test for catastrophic impairment under Section 3(2)(e) of the Schedule, which provides for an impairment or combination of impairments that, in accordance with the 4th Edition (1993) of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”), results in 55 per cent or more impairment of the whole person.
8Alternately, the applicant can satisfy the Criterion 8 test for catastrophic impairment as set out in Section 3(2)(f) of the Schedule. The applicant must prove the accident caused a Class 4 (“marked”) impairment—which is one that significantly impedes useful functioning—or a Class 5 (“extreme”) impairment, which is one that precludes useful functioning, in one of the four areas of function contemplated by the Guides. These four areas are: activities of daily living; social functioning; concentration, persistence, and pace; and adaptation to work or work-like settings. As well, the impairment must result from a mental or behavioural disorder caused by the accident.
ANALYSIS
Catastrophic impairment determination on Criterion 8
9I am not persuaded the applicant has met his onus to prove catastrophic impairment under Criterion 8. My reasons for this follow.
10The applicant relies on the evidence of Dr. Ofokansi, who made the determination of catastrophic impairment on both Criterion 7 and Criterion 8. However, Dr. Ofokansi’s evidence on catastrophic impairment is restricted to only the OCF-19. There are no complementary reports or analyses prepared by Dr. Ofokansi that speak to what Dr. Ofokansi relied on to conduct the determination. In fact, the rationale for Dr. Ofokansi’s finding is just one sentence on the OCF-19 that reads: “(the applicant’s) accident caused post-traumatic stress disorder and major depressive disorder (persistent and severe), with extreme impairments in functioning across all domains.”
11This evidence alone is insufficient to meet the applicant’s burden of proof. Dr. Ofokansi provides no medical evidence whatsoever to explain why the applicant’s impairments are determined to preclude useful functioning (i.e., an extreme impairment). In fact, there is no description of the applicant’s functional impairments, only the diagnoses. There is no analysis provided by Dr. Ofokansi of the applicant’s performance in any of the areas of functioning to explain an extreme rating. In short, there is only an unsubstantiated conclusion.
12Although the applicant relies heavily on the psychological assessment report (dated March 24, 2020) by Dr. Ken Reesor (psychologist) to fill in the gaps on Dr. Ofokansi’s evidence and prove he is catastrophically impaired, I decline to give this evidence much weight. This is partly because Dr. Reesor is not a physician and is therefore precluded from conducting a determination of catastrophic determination under the Schedule. Further, I have no evidence that Dr. Ofokansi was assisted by Dr. Reesor per Section 45(2)1 of the Schedule, which says “an assessment … of catastrophic impairment shall be conducted only by a physician but the physician may be assisted by such other regulated health professionals as he or she may reasonably require.”
13In fact, I have no idea what medical evidence Dr. Ofokansi relied on to conduct the determination. Dr. Ofokansi provides no indication as to whether Dr. Reesor’s report was reviewed, or if any aspects of that report informed Dr. Ofokansi’s determination. I cannot rely on the letter (dated April 17, 2020) from applicant’s counsel to prove anything other than Dr. Reesor’s report—which investigated whether the applicant met the threshold for catastrophic impairment—was made available to Dr. Ofokansi to review.
14Unlike Dr. Ofokansi, Dr. Reesor’s analysis did not provide a finding of extreme impairment in any of the four areas of functioning in the Guides. Further, Dr. Reesor was unable to place the applicant within a defined class of impairment for any of the areas of functioning, save for adaptation to work and work-like environments (termed alternately as “adaptation” and “deterioration or decompensation” in the report), which he described as being in the “upper” moderate range (i.e., not marked). For each of the remaining three areas, Dr. Reesor concluded the applicant straddled the moderate and marked impairment classes to varying degrees.
15To me, this is not helpful because the Schedule does not contemplate partial catastrophic impairment based on “straddle” ratings. As well, the Schedule does not say the applicant is catastrophically impaired if he is partly moderate and partly marked in an area of functioning. This irregularity was raised by the respondent during the hearing, and is another reason why I place little weight on Dr. Reesor’s evidence (i.e., he did not definitively conclude the applicant to be markedly impaired in any domain, which persuades me to believe it is more likely than not that the applicant’s impairments have failed to meet the catastrophic threshold).
16Considering the inconsistencies between Dr. Reesor’s findings and Dr. Ofokansi’s determination, the confusing application of impairment ratings by Dr. Reesor—and given that Dr. Ofokansi did not testify at the hearing to bring clarity to the OCF-19 evidence—I can only conclude, on a balance of probabilities, that Dr. Ofokansi either did not review the March 2020 report of Dr. Reesor, or chose not to rely on his findings.
17In short, Dr. Ofokansi did not substantiate the applicant’s “severe” impairments with medical evidence, and there is no evidence that Dr. Ofokansi relied on the assistance of Dr. Reesor’s report—or any other medical report put forward by the applicant during his hearing, such as those by psychologists Andrea Lee and Rose Matousek, family physicians V. Ning and Bryan Boyd, or occupational therapist Sebastian Ferland—to conduct the determination of catastrophic impairment under Criterion 8. As such, I assign little weight to these reports because I cannot conclude they were considered as part of Dr. Ofokansi’s impairment determination. And without establishing a medical basis for catastrophic impairment, the applicant’s testimony about his medical history, symptoms, complaints, and difficulties, in and of itself, is insufficient to meet his burden of proof.
18I therefore find the applicant has failed to prove he is catastrophically impaired.
Catastrophic impairment determination on Criterion 7
19Similarly, the applicant has failed to prove he is catastrophically impaired under Criterion 7. Although Dr. Ofokansi indicates that Criterion 7 is applicable to the applicant, the rationale for catastrophic impairment provided by Dr. Ofokansi is limited only to factors associated with Criterion 8. Put differently, there is no mention whatsoever of WPI—there are only references to two mental or behavioural disorders that relate to domains of functioning, which I interpret as relevant to Criterion 8 per the Schedule. As such, Dr. Ofokansi offers no medical evidence or basis for applying Criteria 7 to the applicant’s case, and did not provide a WPI rating. I can therefore only conclude the applicant has not met his burden to prove catastrophic impairment under Criterion 7.
The respondent’s evidence and arguments on catastrophic impairment
20The onus to prove catastrophic impairment falls solely upon the applicant. In this case, the applicant’s evidence has fallen short and not met this burden. Therefore, an analysis or incorporation of the respondent’s evidence into my decision is not necessary.
Housekeeping and home maintenance expenses
21I find the applicant is not entitled to a housekeeping and home maintenance benefit. Section 23 of the Schedule obligates the insurer to pay these types of expenses only “if, as a result of the accident, the insured person sustains a catastrophic impairment …”. As I have determined the applicant is not catastrophically impaired, it follows that I cannot find the applicant entitled to a housekeeping and home maintenance under the Schedule.
Award
22I find the respondent is not liable to pay an award per Section 10 of Regulation 664. This is because the applicant failed to meet his burden of proof on catastrophic impairment. Therefore, there is no basis on which to consider an award.
Interest
23There is no interest owing because no benefits are payable.
ORDER
24The application is dismissed.
Released: August 11, 2023
Michael Beauchesne
Adjudicator