Citation: Rana v. Coachman Insurance Company, 2023 ONLAT 21-001456/AABS

Licence Appeal Tribunal File Number: 21-001456/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:

Kris Rana

Applicant

and

Coachman Insurance Company

Respondent

DECISION

ADJUDICATOR:

Laura Goulet

APPEARANCES:

For the Applicant:

Kris Rana, Applicant (self-represented)

For the Respondent:

Derek Greenside, Counsel

Hearing Reporter:

Greg Vaughan

HEARD: by Videoconference:

February 13 to 17, 2023

OVERVIEW

1Kris Rana, the applicant, was involved in an automobile accident on August 8, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by the respondent, Coachman Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2The applicant submits that the accident on August 8, 2017 ("subject accident") triggered mental health issues in her life and she is now dealing with loneliness, pain, isolation, loss of her livelihood and that she has lost all ability to think. She submits that the subject accident has led to a designation of catastrophic impairment.

3The respondent takes the position that the applicant's mental health is directly attributable to her physical health prior to the accident and that her mental and behavioural functioning is no different than it was prior to the accident. The respondent denies that the applicant sustained a catastrophic impairment as a result of the subject accident.

PRELIMINARY ISSUES

The issue of catastrophic impairment as defined under Criterion 2 of the Schedule will not be added to this hearing

4This hearing originally proceeded by videoconference on August 15, 16 and 17, 2022 before Adjudicators Rowsell and Prowse. For reasons that are set out in their Order dated September 6, 2022, the Tribunal ordered a de novo hearing, with a differently constituted panel.

5At the beginning of the August 2022 hearing, the applicant brought a motion to add a medical report dated August 1, 2022 into evidence which found the applicant to be catastrophically impaired under Criterion 2 of the Schedule. The Tribunal denied the applicant's motion, as the issue then in dispute was whether the applicant met the definition of a catastrophic impairment under Criterion 8. The Tribunal held that to allow this new issue at the hearing stage would unduly prejudice the respondent, who requested an opportunity to proceed with insurer's examinations of the applicant based on the new report.

6The applicant was of the understanding that this motion would be heard again at the start of this hearing. The respondent took the position that this motion was filed before the August 2022 hearing, was denied at the hearing and since the matter had been adjudicated, it may not be pursued again. It was not prepared to argue this motion now. Since the Tribunal ordered a de novo proceeding after the August 2022 hearing, I held that the motion could be heard again before this hearing. I provided the respondent with some time to prepare a response.

7The applicant submitted that she was prepared to deal with Criterion 2 and that the medical documents in support of that issue should be accepted by the Tribunal for this hearing. She relied on Rule 9.2 of the Tribunal's Common Rules of Practice and Procedure ("Rules"), which allow a party to seek an order from the Tribunal at any stage of the proceeding with respect to the disclosure of documents or witnesses. The applicant further submitted that this rule should be liberally interpreted pursuant to Rule 3.1.

8The applicant submitted that the respondent had sufficient notice of her request to add this issue now, as she sent the respondent's counsel an email on August 23, 2022, advising that she would be asking that the motion to add the issue of Criterion 2 be heard at the next hearing. The applicant did not file a written motion to add the issue of Criterion 2 to this hearing, nor did she serve the respondent with materials with respect to Criterion 2.

9The respondent argued that the issue of catastrophic impairment under Criterion 2 should not be added at this hearing as the applicant had not filed any documents in support of Criterion 2. Further, the applicant served the respondent with her witness list which did not include the witnesses who would reasonably have been expected to testify on the issue of Criterion 2. The respondent did not anticipate that this issue would be dealt with at this hearing and it is still in the process of conducting assessments regarding Criterion 2. The respondent submitted that as a matter of procedural fairness, it should not be compelled to proceed on an issue in the absence of having an opportunity to respond. Further, the respondent submitted that to deny the applicant's motion to add the issue of Criterion 2 would not result in prejudice to the applicant as she is not precluded from proceeding with respect to this claim in the future. On the other hand, to proceed with Criterion 2 at this hearing would cause extreme prejudice to the respondent.

10I noted that the latest witness list that was served by the applicant on February 9, 2023 did not include witnesses who would testify on the issue of Criterion 2. In these circumstances, the respondent had no reasonable expectation that the applicant would be relying on Criterion 2 at this hearing and was unable to prepare a response.

11Taking everything above into account, I made a finding that the admission of the documents on the issue of Criterion 2 at this stage would be extremely prejudicial to the respondent. Conversely, there is little prejudice to the applicant in denying the motion as she is free to pursue that issue in the future. I held that this hearing would proceed on the issue of whether the applicant is catastrophically impaired as defined under Criterion 8.

The applicant's adjournment request is denied

12After I made a finding that we would not be dealing with the issue of Criterion 2 at this hearing, the applicant requested an adjournment in order to proceed with one hearing dealing with the issue of catastrophic impairment as defined under Criteria 2 and 8 together. The applicant referred to Vice Chair Lake's Order dated January 24, 2023, which denied the respondent's adjournment request for this hearing. The applicant interpreted this Order to mean that Criteria 2 and 8 would be considered together in this hearing and advised that that this is why she did not consent to the respondent's adjournment request. The applicant advised that she was prepared to proceed at this hearing with respect to both Criteria 2 and 8. Further, she indicated that she would not be in Canada for the next two to three months as she would be returning to India.

13The respondent opposed the applicant's adjournment request, pointing out that the August 2022 hearing proceeded for two and a half days, and the applicant logged off on the third day. Further, the respondent brought a motion to adjourn this hearing and the applicant opposed the request. After the respondent's motion to adjourn this hearing was denied, it had to prepare for a second hearing and it incurred further costs of paying its witness' retainer a second time.

14I denied the applicant's request for adjournment. This is the second time this hearing has been scheduled to proceed. The respondent requested an adjournment of this hearing in order to deal with the issues of Criteria 2 and 8 together at a later date and its request was denied by the Tribunal on January 24, 2023. The applicant was now seeking an adjournment for the same reason. I made an order that this hearing proceed on the issue of Criterion 8, as scheduled, in order to ensure an efficient and timely resolution of the merits of this issue.

ISSUES

15The issue in dispute is:

i. Has the applicant sustained a catastrophic impairment as defined under Criterion 8 of the Schedule?

RESULT

16The applicant does not meet the definition of catastrophic impairment under Criterion 8 of the Schedule.

17PROCEDURAL ISSUE

18In anticipation of my agreement to her adjournment request, the applicant cancelled her witness Dr. William Gnam, Psychiatrist. This was done on the third day of the hearing. Further, she indicated that because she was very "nasty" with him, Dr. Gnam would no longer return her calls. As a result, the applicant wanted to submit Dr. Gnam's report into evidence without calling him as a witness. The respondent objected to this.

19On January 31, 2023, the respondent sent an email to the applicant, copying the Tribunal, requesting that the applicant produce Dr. Gnam as a witness at the hearing for the purpose of cross-examination, should the applicant intend to rely on his reports, pursuant to s. 10.4 of the Rules. On February 9, 2023, the applicant sent an email to the respondent indicating that she would be calling Dr. Gnam as a witness.

20The respondent submitted that the two key witnesses for this hearing are Dr. Gnam (for the applicant) and Dr. Philips (for the respondent). The respondent submitted that it required Dr. Gnam to testify in order to test his credentials and opinions, and it objected to the admission of this report without the witness' attendance, submitting that no weight should be given to the report at all.

21I ordered that I would admit Dr. Gnam's report into evidence as it deals with Criterion 8 and is very relevant to the issue in dispute, but I would take submissions from the parties with respect to the weight the report should be given, considering the respondent did not have the opportunity to cross-examine Dr. Gnam, who was on the applicant's latest witness list.

22Since I made a finding, based on the applicant's evidence alone, that the applicant has not met her onus to prove that she sustained a catastrophic impairment as defined under Criterion 8 of the Schedule, I gave Dr. Gnam's report full consideration.

ANALYSIS

The applicant has not demonstrated that she sustained three Marked impairments sufficient to meet the requirements of catastrophic impairment under Criterion 8 of the Schedule

23I find that the applicant is not catastrophically impaired because she has not demonstrated that she sustained three marked impairments sufficient to meet the requirements of catastrophic impairment under Criterion 8 of the Schedule.

24The applicant bears the onus to prove on a balance of probabilities that she is catastrophically impaired. In reference to Criterion 8, she must prove that, as a result of the accident, she has Marked or Class 4 impairments in at least three of the four domains as outlined in the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the "Guides") due to a mental or behavioral disorder. In Chapter 14 of the Guides, impairments are classified according to how much they impair a person's useful functioning in the following four areas of function: activities of daily living, social functioning, concentration, persistence and pace and adaptation.

25I find that based on the testimony of the applicant, that of her friend, and the medical evidence presented, the applicant does not meet the test as set out in the Schedule.

The applicant did not suffer a Marked impairment in her activities of daily living because of the subject accident

26The Guides specify that activities of daily living include self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep and social and recreational activities. Any limitation in these activities should be related to the person's mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual's overall situation. The Guides set out that it is not simply the number of activities that are restricted, but rather the overall degree of restriction or combination of restrictions.

26The applicant testified about prior injuries from her childhood and before the subject accident. Her right hip was dislocated at the age of nine when she fell from a window. She was involved in a car accident in 1997 where she broke her right ankle and femur. The applicant advised that despite her disability in her right leg, she had a strong left leg and was able to be independent without assistance until the subject accident in 2017. She could do things such as cooking, cleaning, riding a bicycle, and working. She continued to have difficulties with her right leg however the doctor refused to conduct surgery for a hip replacement because they discovered she had "silent Polio." Despite these difficulties, the applicant testified that she was happy, and this did not affect her mental stability.

27The applicant filed pictures to show how happy she was before the subject accident. She filed a picture of herself that was apparently posted on Facebook on June 1, 2016 in the open driver's side door of a limousine, waving, where she says that she drove a limousine for the first time. She also filed a picture of herself apparently posted on Facebook on June 28, 2016, where she was riding a bicycle.

28The applicant testified that the first injury to her left leg was caused by the subject accident in 2017. At the time of the accident, the applicant was in a mobility scooter provided to her by ODSP, as her wheelchair had been stolen. The applicant filed medical documents in support of her left hip, knee, calf and foot pain due to the subject accident and an MRI dated November 17, 2017 indicating that she suffered a labral tear. The applicant testified that since the accident she is in severe pain and only goes out for medical appointments.

29In cross-examination, the respondent questioned the applicant about a motor vehicle accident where the applicant injured her left leg in April of 2013. The applicant denied that this occurred. When the respondent showed the applicant a hospital record dated June 12, 2013 indicating that the applicant was in a car accident in April requiring surgery and a cast on her left leg, the applicant testified that there was no car accident and that this report was a mistake.

30The respondent questioned the applicant about a June 10, 2016 medical record indicating that the applicant reported constant radiating leg pain on her left side since an accident in October 2015. The report went on to say that the applicant reported that she was no longer able to participate in many activities including cycling, swimming, walking and cleaning. In her testimony, the applicant denied this. When presented with a medical record and asked why the applicant had an MRI on her left knee on August 11, 2015 at the hospital in Toronto, she advised that she did not recall and suggested that the respondent may have "morphed" the document, meaning that the document was not related to that date.

31The applicant was questioned about another incident of her reporting left leg pain and left-sided low back pain as a result of the accident in October of 2015. The applicant denied that she injured her left leg in that accident. When showed a medical report dated November 11, 2016 where the doctor indicates that the applicant complained of constant left leg symptoms for the prior eleven months, the applicant testified that this was untrue and the doctor made a mistake.

32The respondent questioned the applicant about other medical documents demonstrating that she had pain in her left knee in 2015 and 2016 that affected her ability to sleep, walk and focus on work, and that she had left leg pain in February of 2017, prior to the subject accident. The applicant testified that she either did not recall or did not agree with the reports.

33The applicant arrived in Canada in 2005 with a law degree from India. She took some courses to improve her English and enrolled in the law clerk program but was not allowed to complete it because she was accused of plagiarizing the assignment. The applicant testified that she worked as a legal assistant from March 2006 to September 2007 and also worked for three lawyers from 2008 to 2010. She said that she received ODSP from 2009 to 2012. The government deducted money when she worked but she was able to get medication. When she did not work, she was able to get money for rent. She testified that from August 2011 until 2014 she defended herself with respect to an impaired driving charge, and she argued her case up to the Supreme Court of Canada. The applicant also testified that she was working for cash for a lawyer named William Grey on and off until the subject accident. After the accident, she could not spell properly and the consistent pain did not allow her to function psychologically.

34Although the applicant filed hundreds of pages of materials in support of her claim, she did not file any supporting evidence that she was working at any time prior to the subject accident. When the respondent asked her why she had no employment income declared since 2011, the applicant responded that from 2013 she worked mostly cash jobs and that she worked mostly for William Grey for cash until August 2017. When the respondent pointed out that William Grey has not practiced law since 2011, the applicant advised that she was working for him for his taxi business as he was disbarred in 2011. She also helped him with his appeal to the Law Society.

35The applicant testified that until June and July 2017, she attended sessions for eligibility to receive $28,000.00 for tuition fees to take a hospitality program and the classes were to begin in August of 2017. She said that they provided her with a username and password to start her new program. The applicant filed a document in support of her testimony. It was an email dated July 25, 2017 from "donotreply@careerfoundation.org" apparently indicating that she had submitted her registration successfully and advising that she can access a job seeking website. There was nothing in the document about attending classes or when they would begin.

36The applicant testified that she saw a psychiatrist for the first time in 2007 when she was going through a divorce and she was put on depression medication for a maximum of six months. She said she was diagnosed with a mental health condition in 2019. She had suicidal thoughts but she was too cowardly to follow through. She filed medical records to demonstrate how many times she had suicidal thoughts. One record from March 6, 2021 indicated that the applicant was seen for suicidality after she uttered a statement that she would like to jump into a lake and die. It went on to say she received bad news from her landlord about some complaints that were made against her and she was upset about this. The doctor noted that she vehemently rescinded the statement and stated that she was never going to give up. The doctor made note that the applicant has multiple coping strategies to help her in these types of situations and that she requests help so that she can better deal with the stressors. He concluded that she was not suicidal and she had insight into the fact that this utterance was related to bad news.

37The applicant testified about other incidents where she had suicidal thoughts:

i. October 17, 2020: when she was taken to hospital because she was overmedicating with percocets, trying to kill herself;

ii. December 12, 2020: where she was at the emergency department because she was trying to cut her hand as she felt like suffering and had no help because of the pandemic; and

iii. September 13, 2022: when she was in the hospital for surgery on her femur to straighten her knee and she wanted doctors to approve her for assisted suicide.

38The applicant filed a consultation report dated June 9, 2022 from Dr. Malcolm Chan, Psychiatrist, where the chief complaint was that the applicant has become more irritable and socially isolative, which is opposite of her nature. The report makes note of significant stressors since 2019 such as the passing of her father and her mother who provided psychological and financial support, surgeries to extend her right femur, chronic pain and immobility, inability to be in a relationship due to pain associated with sexual activity, increased irritability, getting into more arguments with friends and others, and being socially reclusive. Dr. Chan notes that the applicant has endorsed low feelings overall for the past three years (i.e. since 2019), on and off. The subject accident occurred in 2017. There is no mention in the report of the subject accident.

39Another report by Dr. Chan dated October 17, 2022 lists the subject accident in the "past medical history" however the report goes on to discuss the applicant's depression as a result of worries due to financial instability, and goes on at length about harassment the applicant is subjected to by individuals at her building which she feels are because of her race. Again, there is no indication that her depression is related to the subject accident.

40A progress report by Dr. Chan dated November 9, 2022 discusses the applicant having fleeting suicidal thoughts related to issues with other tenants in her building and her mood being low due to the alleged harassment. The report indicates that the applicant's nephew in India offered to come to Toronto to support her for a few months and her brother offered to take care of her back in India. The report went on to say that the applicant is in the midst of a settlement regarding her past accident in August of 2017 that caused her leg injury. There is no indication that her suicidal thoughts were related to the subject accident.

41The respondent filed documents that made reference to the applicant's psychiatric health history prior to the subject accident:

i. Where the applicant cut her wrist in 1997 as she thought her leg was going to be amputated;

ii. Where the applicant made a call to Tele-Health on March 4, 2013 with complaints of constant whole lower body, hips, legs, knees and left foot pain. The report indicated that the applicant was seen at a pain clinic that morning and was upset as the doctor would not sign a form to send to ODSP for a prescription refill for Oxyneo. The doctor made a referral for mental health assistance for the applicant to be assessed for mental health and addiction. (The applicant testified that this did not happen.); and

iii. Where the applicant attempted suicide by jumping into a lake on May 13, 2017 and was pulled out by four by-standers.

42Before the subject accident, the applicant testified that she had healthy sexual function. Since the accident, she has been unable to have sexual relations as a result of pain related to her left leg injury. The Guides specify that the limitation in activities of daily living should be related to the person's mental disorder. It is clear from the applicant's testimony that issues with respect to her sexual function are related to physical issues.

43The applicant filed a Catastrophic Impairment Determination Occupational Therapy Community Situational Assessment Report ("OT Report") prepared by Christina Phillips, occupational therapist, dated March 19, 2020. Ms. Phillips assessed the applicant for 5.25 hours on August 7, 2019. The applicant did not wish to discuss details about the subject accident with Ms. Phillips, indicating that this exacerbates her anxiety. She said she was frustrated at having to repeat herself and she asked Ms. Phillips to refer to the medical brief. Ms. Phillips noted several times throughout the OT Report that the applicant was not a reliable historian during the assessment.

44The applicant described her pre-accident functioning as being active and independent and reported earning up to $3,000.00 per month performing paralegal activities. She described her accident-related symptoms as including depressed mood, anxiety, anger and irritability, panic attacks, poor sleep, nightmares and flashbacks, constant worry and stress, social withdrawal, among others. She described herself as feeling "truly disabled" and having suicidal thoughts. The applicant described how her behavior changed after the subject accident, and that she now has confrontations with neighbors, family, friends, and complete strangers. Ms. Phillips noted that the applicant was observed to smile and converse politely with others and the concierge during the community portion of the assessment and the applicant had commented that she puts on a brave face to avoid stares. The applicant was quoted as saying "I make it look like everything is fine, and I'm happy, so the neighbors and staff don't think something is wrong with me and make a complaint."

45Ms. Phillips noted that the applicant became visibly anxious and shaken while at the road-side, hesitant to proceed at road crossings, and was screaming for Ms. Phillips to be careful while she crossed the road at a crosswalk, turning her wheelchair and placing her head in her hands. By the end of the community outing, Ms. Phillips noted that as the applicant's pain increased, her mood changed and she became panicked and distracted.

46The applicant reported that she was functioning independently with her activities of daily living prior to the subject accident and that she is now assisted with aspects of personal care by a personal support worker ("PSW"). She is independent with dressing and is able to do some tidying and dishwashing, but she is assisted with aspects of grooming and hygiene by the PSW as needed and the PSW does all of the housekeeping tasks and the cooking. The applicant's mother came from India for a while to assist her, and a friend assists with grocery shopping. She is no longer able to tolerate standing activities and relies heavily on her wheelchair and walker.

47Dr. William Gnam, Psychiatrist, conducted an assessment of the applicant on September 25 and 26, 2019 for a total of 240 minutes and completed a report dated May 1, 2020. During this assessment, the applicant reported the following symptoms that were present in the 30 days prior to the examination:

i. pain in the left hip and buttock;

ii. pain the shoulders and arm;

iii. headaches;

iv. standing and sitting intolerance;

v. sleep disruption due to pain;

vi. suicidal ideation: daily passive suicidal ideation without plan or intent, noting that she is motivated to remain alive out of consideration for her mother;

vii. depression: sad and depressed mood most of the day almost every day, feelings of isolation with minimal motivation to leave the home, fatigue and low energy levels (her physical injuries also interfere with her ability to leave the home);

viii. emotional lability, with irritability towards others, and frequent crying;

ix. visual flashbacks of the subject accident at least once per week, anxiety while in a wheelchair or scooter driving on a bicycle path or close to a road; and

x. extremely fearful when she drives.

48Dr. Gnam indicated that the applicant did not report further psychological symptoms however in response to diagnostic questions and a functional inquiry conducted by the examiner, the applicant described that she has spontaneous episodes of rapid onset of anxiety almost every night, inability to focus or concentrate, was distracted, and had memory difficulties.

49The applicant reported that prior to the subject accident she had physical limitations however she did not have significant anxiety or depression and she was able to consistently work part time as a legal assistant, cook, clean, do groceries, participate in sports, drive a modified vehicle independently and that she was sexually active. Prior to the accident, as a result of multiple surgeries and having to begin using a wheelchair, she became depressed from 2013 to 2015 and consulted with three different psychiatrists. She stated that by 2016, she moved on with her life, no longer considered herself disabled, and did not undergo any further surgical procedures. She reported that after the accident, she developed persistently depressed mood, more intrusive and disabling pain, and was unable to remain sexually active because of pain and low libido.

50Dr. Gnam assessed the applicant with a Class 4 or marked impairment rating with respect to her activities of daily living. Dr. Gnam based his assessment on the applicant's self-reported symptoms, medical documentation and the applicant's responses to various tests and questionnaires administered by a Psychometrist under his supervision.

51Dr. Gnam diagnosed the applicant with Major Depressive Disorder ("MDD"). He indicated in his report that based on a psychiatric consultation that was performed in February 2017, a few months prior to the subject accident, the applicant had relatively mild anxiety and depressive symptoms that did not warrant a diagnosis of MDD. In addition, Dr. Gnam relied on the applicant's self-reporting about her abilities to engage in a whole spectrum of social, housekeeping and recreational activities as well as competitive employment prior to the subject accident. One report he relied upon contained information that the applicant was employed pre-accident as a legal assistant and typically worked full-time hours Monday to Friday on an on-call basis. Dr. Gnam concluded that the evidence was persuasive that the applicant would not have any of the current mental disorders "but for" the accident.

52Dr. Gnam's report refers to pre-accident medical documentation that he referred to prior to completing his assessment. One Psychiatry Consultation Report dated November 4, 2014, refers to the applicant being very depressed since July 2014 due to being advised that she required a wheelchair and that she was neglecting her self-care, not socializing, overreacting and was socially withdrawn. She was diagnosed with MDD. The year prior, the applicant had suicidal thoughts of jumping into a lake or in front of a car. She was diagnosed with MDD once again on February 23, 2015 and was having thoughts of driving her wheelchair into the water. In October 2015, the applicant was in the hospital with a right leg fracture when she struck a wall from a parked car in an underground garage at high velocity. Although the applicant denied that this was a suicide attempt, psychiatric follow-up was initiated. Finally, on February 18, 2017 in the Psychiatry Consultation Report that Dr. Gnam refers to where he says the applicant had relatively mild anxiety and depressive symptoms that did not warrant a diagnosis of MDD, Dr. Youssef, who came to that conclusion, indicated in his report:

Past Psychiatric History: Seen by a psychiatrist for about 6 months in 2008 due to relationship problems. Never been in ER for any mental health condition. No previous meds...

Dr. Youssef diagnosed the applicant with Adjustment Disorder with some depressive and anxiety symptoms based on the applicant's reporting of depressive and anxiety symptoms as a result of interpersonal, financial and health issues due to partial disability due to a previous car accident.

53During the hearing, the applicant referred to the respondent's video surveillance evidence to demonstrate that she has a severe left leg external rotation. Although the video depicts the applicant walking with a limp, the surveillance video, taken in an uncontrolled environment, clearly demonstrates the applicant's abilities as well.

54A video time stamped on October 26, 2019, demonstrates the applicant driving a vehicle in heavy traffic on her own, exiting the vehicle without assistance, carrying a backpack, walking without a cane or other assistive devices (although with a significant limp), going into a retail store, and walking quickly down a set of stairs by herself while holding on to the railing for support.

55Another video time stamped on January 7, 2020, demonstrates the applicant in her vehicle alone, parking her vehicle beside another one, then backing up her vehicle in the parking lot while holding her cell phone in her left hand, stopping, apparently having a conversation on her cell phone, then backing up again while holding her cell phone in her left hand, apparently continuing her conversation. She did not appear to be nervous or distressed while driving. The applicant is later seen exiting her parked vehicle without assistance and retrieving a walker from the back seat, closing her door and walking with the assistance of the walker to the doorway of a residence, walking up a few stairs and entering the building.

56The applicant testified that she never required the help of a PSW prior to the subject accident and she now needs long term PSW assistance. She advised that surgeons told her in 2019 not to be alone in the shower or to walk without someone helping her. The applicant filed invoices apparently from her PSW from 2019 through to 2021 totaling over $40,000.00. A medical progress report filed by the applicant dated December 12, 2022 indicates that the applicant will likely require PSW assistance in the long term as a result of her hip twisting, which makes her walking difficult. On the other hand, Dr. Gnam opined that the applicant's inability to complete meal preparation or heavier housekeeping tasks that she completed prior to the accident is in part due to greater physical impairments but predominantly caused by mental impairments that include poor motivation, fatigue and the deterrent effects of pain.

57There is a lack of clear, convincing medical evidence that the applicant requires a PSW in relation to a mental or behavioral disorder that was caused by the subject accident, rather than with respect to her physical difficulties.

58Taking all of the evidence above into consideration, I find that the applicant has not demonstrated on a balance of probabilities that she suffered a Marked impairment with respect to her activities of daily living as a result of the subject accident. The evidence strongly suggests that the applicant suffered from physical and psychological impairments that impaired her activities of daily living prior to the accident.

The applicant did not suffer a Marked impairment in social functioning as a result of the subject accident

59According to the Guides, the factors to consider under this domain are an individual's capacity to interact appropriately and communicate effectively with others, including getting along with family members, friends, neighbours, grocery clerks, lenders, etc. Some examples of impaired social functioning would be a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, etc. A person's strength in social functioning could be demonstrated by their ability to initiate social contact with others, communicate clearly with others, interact and actively participate in group activities, exhibit cooperative behaviour, consideration for others, awareness of others' sensitivities and social maturity.

60In the OT Report prepared by Ms. Phillips, she indicated that the applicant described herself as a happy and social person prior to the subject accident, who enjoyed socializing with friends, participating in sports, working with a lawyer, driving the BMW her parents bought her, and interacting with people in her building cordially and without issues. Since the accident, the applicant reported that she has become increasingly isolated at home and spends most of her time listening to prayer, reciting prayers and talking to her mother, rarely calling or seeing her friends. She is anxious and irritable while out of her home, gets into verbal confrontations with neighbors and strangers, and does not participate in any social or recreational activities.

61Dr. Gnam assessed the applicant's level of impairment with respect to social functioning, noting that she only demonstrated partial cooperativeness during his assessment and that her participation was limited by impairment in affect regulation with anxiety, distress, pain fatigue and irritability. Dr. Gnam opined that the observations made during the assessment almost certainly generalize and imply that the applicant has difficulties maintaining adaptive interactions with members of the public. He refers to an example of an interview with the building concierge that was conducted by a social worker, discussed below.

62Dr. Gnam felt that the applicant's capacity for clear communication was impacted by emotional lability and vulnerability to develop irritability and lapses in working memory that reduce her capacity to remain focused, and that problems with communication were observed across multiple assessments. In addition, the applicant reported motivation impairment, fatigue and the negative anticipated consequences of social interactions have resulted in considerable social isolation. Further, the applicant's reduced community mobility (attributable to low motivation and travel and situational anxiety) substantially interferes with her capacity to initiate and sustain social interactions in the community.

63Dr. Gnam also based his assessment on multiple collateral interviews with the applicant's friends as conducted by a social worker, Isabelle Zonenberg, which apparently documented the applicant's pre-accident social functioning. Ms. Zonenberg assessed the applicant on July 30 and August 7, 2019. It should be noted that the interview with the applicant's concierge makes reference to the applicant's behaviour both in the past and present tense. The concierge mentions that the applicant does not go out as often anymore and discusses an incident where the applicant had a confrontation with someone in the walkway of their building and created a scene. Since that confrontation, she does not seem happy and is not as friendly with him. He mentions that he had not seen her using a wheelchair before the accident. Only the first name of concierge is provided. The statement is undated. It should also be noted that although he states that he had never seen the applicant in a wheelchair before the accident, the applicant was in a scooter when the accident occurred because her wheelchair had been stolen.

64Ms. Zonenberg also interviewed the superintendent of the building who talks about how the applicant used to be a friendly, polite person and now she seems sad and unhappy. She now uses a wheelchair and he had not seen her in a wheelchair before. He indicated that she has a car that has hand controls and he thinks her cat is her only companion as he does not see any friends visiting her. The interview is not dated and there is no reference to the subject accident.

65Another friend who was interviewed makes reference to the applicant being a fun, happy, outgoing person. She indicated that they used to go to concerts and festivals and ride their bicycles. She said that right before the accident they would see each other once per week and now they see each other once per month or less and the applicant is agitated and extremely moody. The friend indicated that the applicant has closed off from her. It should be noted that the friend said that she has known the applicant for 2 to 3 years. Ms. Zonenberg's assessment was completed in July and August 2019. The subject accident occurred two years prior to the assessment, on August 8, 2017.

66The last friend that was interviewed, Joseph Westwood, also testified at the hearing. Mr. Westwood refused to swear an oath or affirmation to tell the truth. As such, I did not consider his testimony in coming to my decision.

67Dr. Gnam bases his opinions in large part on self-reporting by the applicant. Having heard from the applicant at the hearing, and considering the medical evidence that was filed, I do not consider the applicant to be reliable. In several instances, the applicant was presented with medical evidence and she simply denied that it was true. This would suggest that the applicant very likely misrepresented information with respect to her medical situation to Dr. Gnam, who in turn relied upon this information to form his opinions.

68Dr. Gnam concludes that mental impairments in the area of social functioning attain the level whereby they significantly impede useful functioning and thus a Class 4 (Marked) mental impairment rating applies. For the reasons set out above, I place very little weight on Dr. Gnam's report.

69A friend of the applicant's, Richard Mulrooney, testified on the applicant's behalf. He said that he has known the applicant since approximately August of 2011 when they became friends and went on bicycle rides, cooked and went to church together. He testified that the applicant was able to ride a bicycle until around 2017. He indicated that they lost touch after his father passed away in March of 2017. They met only once in April of 2017 and then he went to Newfoundland and did not see her again until about 2021.

70Mr. Mulrooney's attendance to testify on the applicant's behalf demonstrates that she still maintains a friendship with him, which is an example of her ability to maintain interpersonal relationships.

71The applicant submitted a document into evidence containing the clinical notes of Dr. Richard Jenkinson, Orthopaedic Surgeon, dated November 18, 2021, with respect to a postoperative follow up appointment she had from a right distal femur lengthening procedure. Dr. Jenkinson directed her to a website she could refer to, to do at-home exercises but did remind her that she should be quite careful when doing them on her own. The doctor noted that the applicant was happy to try working on the exercises and would use her PSW and her friends for help.

72It is clear from the evidence presented by the applicant, that she continued to have relationships with her nephew, her mother, her brother, and friends after the subject accident. Based on all of the evidence, I am not satisfied that the applicant has proven that, as a result of the subject accident, she suffered a Marked impairment in the area of social functioning due to a mental or behavioral disorder.

The applicant did not suffer a Marked impairment in concentration, persistence and pace because of the subject accident

73The Guides specify that the factors to consider under this domain are concentration, persistence and pace needed to perform many activities of daily living, including task completion. Task completion refers to the ability to sustain focused attention long enough to complete tasks commonly found in activities of daily living or at work. In order to consider strengths and weaknesses in mental concentration, there is a consideration of frequency of errors, the time it takes to complete the task and the extent to which assistance is required to complete the task.

74In the Catastrophic Impairment Determination Occupational Therapy Community Situational Assessment Report prepared by Ms. Phillips, she concluded after her assessment that the applicant presents with physical, functional, cognitive and emotional impairments which affect her concentration, persistence and pace with most activities.

75In Dr. Gnam's report dated May 1, 2020, he indicated that the applicant was found to be capable of sustaining concentration with sufficient pace and task persistence to complete simple conversations or tasks, particularly within the first stages of the examinations. Dr. Gnam found that the applicant's mental impairments in this domain are compatible with some useful functioning but do not clearly attain the level whereby they significantly impede useful functioning, which corresponds to a Class 3 (Moderate) mental impairment rating.

76The applicant's own assessor indicates that the applicant does not have a Marked impairment in concentration, persistence and pace. I am not convinced by any other evidence presented by the applicant that, as a result of the subject accident, she suffered a Marked impairment in relation to concentration, persistence and pace due to a mental or behavioral disorder.

77Since I have found that the applicant did not sustain Class 4 or Marked impairments in the functional domains of activities of daily living, social functioning and concentration, persistence and pace, I do not need to address the remaining functional domain. In order to meet the criteria for a catastrophic impairment determination under Criterion 8, the applicant would have to have Class 4 or Marked impairments in at least three of the four functional domains. Taking all of the evidence into consideration, I find that the applicant does not meet the definition of catastrophic impairment as defined under Criterion 8 of the Schedule.

ORDER

78The applicant does not meet the definition of a catastrophic impairment as defined under Criterion 8 of the Schedule.