Cabral v. Northbridge General Insurance Company, 2023 CanLII 7271

Citation: Cabral v. Northbridge General Insurance Company, 2023 ONLAT 20-013500/AABS

Licence Appeal Tribunal File Number: 20-013500/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:

Elvis Cabral

Applicant

and

Northbridge General Insurance Company

Respondent

ADJUDICATORS:

Deborah Neilson

Christopher Evans

APPEARANCES:

For the Applicant:

Georgiana Masgras, Counsel

For the Respondent:

Nicole A Dowling, Counsel

Jordan Kazan Baigrie, Articling Student

Court Reporter:

Michelle Gordon

HEARD: by Videoconference:

October 31, November 1-4, 7-8, 2022

OVERVIEW

1Elvis Cabral (the “applicant”) was involved in an automobile accident on February 9, 2006, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the “Schedule”).¹ The applicant was denied certain benefits by Northbridge General Insurance Company (the “respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

2In the 2006 accident, the applicant was the front-seat passenger of a taxi that collided with an oncoming trailer when the van towing it turned left. The applicant suffers from chronic pain and psychological disorders that impair his ability to work and engage in housekeeping, social, and recreational activities. He alleges that these impairments were caused by the 2006 accident. The respondent alleges that these impairments were caused entirely by a previous car accident in 2002, and not the 2006 accident.

3The applicant seeks a determination that he sustained a catastrophic impairment on the basis of a mental or behavioural disorder under s .2(1.2)(g) of the Schedule. He also seeks an award pursuant to s. 10 of Regulation 664² on the grounds that the respondent unreasonably withheld or delayed payments.

ISSUES

4The issues in dispute are:

Has the applicant sustained a catastrophic impairment as defined by the Schedule?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the respondent entitled to costs?

RESULT

5The applicant has not established that he sustained a catastrophic impairment due to the 2006 accident.

6The applicant is not entitled to an award.

7The respondent is not entitled to costs.

PROCEDURAL ISSUE

8At the start of the hearing, the applicant brought an oral motion to call Joe Resendes as a witness. The respondent objected on the grounds that Mr. Resendes was not listed as a witness in the case conference Order of August 17, 2021, which specified that only the witnesses listed in the Order could be called at the hearing. The applicant did not bring a motion to amend the Order. However, he submits that he gave the respondent notice that he intended to call Mr. Resendes as a witness. On July 5, 2022, the applicant served and filed a witness list including Mr. Resendes and served a witness statement. In the lead-up to the hearing, he communicated to the respondent that he intended to call Mr. Resendes.

9The applicant was not entitled to add Mr. Resendes as a witness unilaterally. This is a breach of the Order, which specifies that the hearing shall be limited to the testimony of the witnesses listed in the Order, and that witness lists may only include witnesses listed in the Order. However, we granted the applicant’s motion to add Mr. Resendes as a witness for the following reasons.

10The applicant submitted that he was entitled to add Mr. Resendes at least 10 days before the hearing pursuant to Rule 9.2.³ We disagree. Rule 9.2 provides that a witness list shall be provided at least 10 days before the hearing, or at any other time ordered by the Tribunal or undertaken by the party (emphasis added). In this case, the Tribunal ordered the parties to identify their witnesses at the case conference. They were not entitled to add new witnesses up to 10 days before the hearing. The purpose of setting out witnesses in the Order is to ensure that the parties know the case to be met and can prepare for the hearing accordingly.

11To add Mr. Resendes as a witness, the applicant’s proper course of action was to bring a motion to amend the Order. He could have done so after the Order was released on August 17, 2021, more than one year ago. During argument, the applicant conceded that he failed to do so inadvertently.

12However, we allowed the applicant to add Mr. Resendes as a witness in the circumstances of this case. First, he substituted Mr. Resendes for a witness listed in the Order who was no longer being called. Second, the hearing schedule allowed sufficient time to hear Mr. Resendes’ testimony. Third, the respondent was not prejudiced because it knew as of July 5, 2022 that the applicant intended to call Mr. Resendes and what the substance of his evidence would be.

HAS THE APPLICANT SUSTAINED A CATASTROPHIC IMPAIRMENT?

13The applicant alleges that he sustained a catastrophic impairment on the basis of a mental or behavioural disorder under s. 2(1.2)(g) of the Schedule. He must prove on a balance of probabilities that he suffers from a marked (class 4) or extreme (class 5) impairment in at least one of the four areas of function identified in chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “AMA Guides”). He alleges that he suffers from a marked impairment in all four areas of function. He does not allege that he suffers from an extreme impairment in any of the four areas.

14This application concerns the accident of February 9, 2006. The applicant was involved in a previous car accident on September 27, 2002. His medical records demonstrate that he developed chronic pain and psychological disorders after the 2002 accident and before the 2006 accident. However, he alleges that he sustained a catastrophic impairment solely on the basis of the 2006 accident, not the 2002 accident.

15The respondent concedes that the applicant suffers from impairments due to a mental or behavioural disorder, but submits that: (1) they do not rise to the level of a marked impairment in any of the four areas of function; and (2) they were caused entirely by the 2002 accident, and not the 2006 accident.

16The Divisional Court followed a two-step analysis in Thiruchelvam v RBC General Insurance Company, 2022 ONSC 554 (“Thiruchelvam”) at paragraphs 101-103. As in this case, the applicant in Thiruchelvam claimed that he had sustained a catastrophic impairment on the basis of a mental or behavioural disorder, and causation was disputed because the applicant had been injured in previous accidents. Although the Divisional Court applied the material contribution test for causation in Thiruchelvam, in our view the two-step analysis is not specific to that test. As discussed below, the parties agree that the “but for” test for causation applies in this case. We agree, but we adopt the following two-step analysis set out in Thiruchelvam because it is helpful for determining catastrophic impairment when an insured person has been injured in previous accidents:

Does the applicant suffer from a marked impairment in any of the four areas of function; and
If so, did the 2006 accident cause the impairment?

1. Does the Applicant Suffer From a Marked Impairment in Any of the Four Areas of Function?

17The four areas of function are:

Activities of daily living;
Social functioning;
Concentration, persistence, and pace; and
Deterioration or decompensation in work or work-like settings (adaptation).

18As will become clear, these four areas of function overlap.

19The AMA Guides define the five classes of impairment as follows:

Class 1:

No impairment

Class 2:

Mild impairment

Class 3:

Moderate impairment

Class 4:

Marked impairment

Class 5:

Extreme Impairment

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

20Classes 1, 2, 3, and 5 are defined by a person’s level of useful functioning: respectively, all useful functioning, most useful functioning, some useful functioning, and no useful functioning. Class 4, on the other hand, is defined by whether useful functioning is significantly impeded rather than the residual level of useful functioning. Put in the same terms as the other classes, a class 4 (marked) impairment entails less than some useful functioning, but more than none.

21The parties agree that the applicant suffers from impairments in all four areas of function, but disagree on whether they amount to marked impairments. The applicant submits that he suffers from marked impairments, and the respondent submits that the applicant suffers from moderate impairments at most.

22The applicant testified at the hearing and called two lay witnesses: Jennifer Youmans, his partner, and Mr. Resendes, his long-time friend. The applicant called two expert witnesses: Dr. Judith Pilowksy, a psychologist,⁴ and Frank Kakarelis, a kinesiologist. We give no weight to Mr. Kakarelis’s evidence because he was not qualified to give an opinion on whether the applicant suffered from a catastrophic impairment due to a mental or behavioural disorder. His observations of the applicant were focused on musculoskeletal issues and, therefore, were not relevant to the catastrophic impairment.

23The respondent called two expert witnesses: Dr. Lawrence Tuff, a psychologist,⁵ and Ms. Jackie Auger, an occupational therapist.⁶

The Applicant’s Psychological Disorders

24The applicant testified that pain was the primary cause of his functional impairments. He experiences pain as a result of the accident throughout his body, but mainly in his back, neck in shoulders. He testified that it may feel like there are knives in his shoulders, and that his back is on fire or on ice. Pain limits his capacity to engage in many physical activities. He testified that if he overexerts himself, he “will pay for it” the next day or couple of days, meaning that he will be incapacitated by pain and bedridden. Dr. Pilowsky and Dr. Tuff diagnosed the applicant with somatic symptom disorder with predominant pain, persistent, a disorder set out in the Diagnostic and Statistical Manual of Mental Disorders (DSM-V). This diagnosis relates to functional impairment caused by the applicant’s preoccupation with his pain to a disproportionate extent.

25The applicant did not testify he had mood-related issues other than feeling irritable and impatient due to pain. However, according to Ms. Youmans and Dr. Pilowsky, the limitations imposed by his pain and the resulting feelings of helplessness and hopelessness cause him to feel depression, anxiety, and a lack of motivation. Dr. Pilowsky diagnosed the applicant with major depressive disorder, single episode, moderate to severe with anxious distress. Dr. Tuff diagnosed him with an adjustment disorder with mixed anxiety and depressed mood. Dr. Tuff diagnosed an adjustment disorder because the applicant specifically attributed his depression and anxiety to pain from his accident-related injuries. However, it was also Dr. Pilowsky’s understanding that the applicant attributed these symptoms to his accident-related injuries.

The Severity of the Applicant’s Impairments

26Dr. Pilowsky opined that the applicant suffered from marked impairments in all four areas. Dr. Tuff opined that the applicant suffered from moderate impairments in all four areas.

27Both Dr. Pilowsky’s and Dr. Tuff’s reports provided limited assistance because neither clearly explained what differentiates a marked from a moderate impairment, or why the applicant’s impairments qualify as one rather than the other. Dr. Pilowsky’s report lists the applicant’s impairments in each area of function, but does not articulate why these limitations amount to a marked impairment rather than a moderate impairment. Dr. Tuff’s report makes only conclusory statements that the applicant’s impairments are moderate and that there is no evidence of any marked impairments.

28Dr. Tuff briefly commented on the difference between moderate and marked impairments in his testimony. He described a marked impairment as almost complete functional impairment, and opined that the applicant’s ability to drive, sit through the assessment interview without distress, and complete activities without supervision or attendant care indicate that his impairments are moderate at most. Because Dr. Tuff did not describe the difference between moderate and marked impairments in his report and only touched on the issue in his testimony, it is difficult to assess whether his understanding is consistent with the direction provided in the AMA Guides. Defining marked impairment as almost complete impairment arguably borders on the definition of a class 5 (extreme) impairment. Accordingly, we do not give much weight to his opinion.

29In addition, we place less weight on Dr. Pilowsky’s opinion because she largely relied on the applicant’s self-reported impairments in the interview component of her assessment, and did not review his pre-accident records. Dr. Pilowsky reviewed only two documents:

A “Medical File Review and Summary Report” dated September 21, 2020 by Mr. Kakarelis;⁷ and
An insurer’s independent assessment report dated January 8, 2019 by Dr. Frank Lipson, a physiatrist.⁸

30The AMA Guides state that while the applicant’s self-report is an important source of information, adequate descriptions of his functional limitations should be obtained from reports by accepted professional sources such as psychiatrists and psychologists. Many of these documents were available, most importantly the clinical notes and records of Dr. Jacques Gouws, the applicant’s psychologist from 2003 to 2004, Dr. Giampier Bartolucci, the applicant’s psychiatrist from 2004 to 2007, and Dr. Daniel Cekan, the applicant’s family doctor from 2011-2021. Although some of these records are summarized in Dr. Lipson’s report, Dr. Pilowsky did not obtain them.

31We place more weight on the applicant’s medical records than his self-report because he has a very poor memory. He was unable to answer most questions about his history in his examination-in-chief or on cross-examination. It is understandably difficult to keep track of all that has happened in the last 20 years, but the applicant also had little or no memory of relatively recent events, or of basic facts such as where he had lived and when, or the names of previous girlfriends. Dr. Pilowsky stated in her report that the applicant suffered from impaired short- and long-term memory.

32Dr. Pilowsky’s reliance on the applicant’s self-report is particularly problematic given that he had a very limited memory of his mental health history. In particular, he had essentially no recollection of his psychological symptoms after the 2002 accident and before the 2006 accident. For example, on cross-examination, Dr. Pilowsky was taken to Dr. Bartolucci’s clinical note dated November 8, 2004, which states that the applicant was continuing to experience a high level of anxiety and was socially withdrawn.⁹ She acknowledged that this was inconsistent with the information she received from the applicant in her interview.

33As discussed in further detail below, we find that Dr. Pilowsky generally tended to overstate the applicant’s functional limitations. Some of the impairments described in her report are more severe than the evidence bore out, and others are uncorroborated or contradicted by the evidence. Furthermore, Dr. Pilowsky cannot be correct that the applicant suffers from marked impairment in all four areas of function. The AMA Guides provide that a marked impairment in two or more areas would likely preclude a person from performing complex tasks without special support or assistance, such as that provided in a sheltered environment. As illustrated by the following discussion of the four areas of function, the applicant’s impairments clearly do not rise to that level of severity.

Activities of Daily Living

34The AMA Guides state that activities of daily living include activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities, cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring for self, grooming, using the telephone and directory, using the post office, and working. The AMA Guides direct assessors to judge the quality of these activities in the context of the individual’s overall situation by their independence, appropriateness, effectiveness, and sustainability, to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction, and to assess not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

35We find that the applicant has not met his onus of establishing that he suffers from a marked impairment in this area of function. While the applicant’s impairment places very real limits on his activities of daily life, it is consistent with some useful functioning, and therefore qualifies as moderate rather than marked.

36There is no dispute that the applicant is fully capable of basic activities such as communicating and ambulating. The applicant testified that pain could limit his mobility when bathing or dressing, but that on the whole he is independent in self-care and hygiene activities. He does not require attendant care. He testified that he is unable to participate in sexual activity when he is feeling severe pain, but that his sexual function is intact. He also testified that he sleeps poorly, partly because pain will wake him up during the night.

37The applicant and Ms. Youmans, with whom he lives, testified that pain significantly limits his ability to perform household chores. Ms. Youmans is largely responsible for tasks such as cleaning, grocery shopping, cooking, and outdoor maintenance tasks such as mowing the lawn. If the applicant overexerts himself, he “will pay for it” and be immobilized by pain for one or more days following. However, he retains some useful functioning:

The applicant and Ms. Youmans acknowledged in their testimony he that helps with less physically demanding tasks such as folding laundry and cooking;
The applicant reported to Dr. Tuff and Ms. Auger that he is involved in housekeeping and maintenance activities such as washing and drying dishes, laundry, cooking, occasional yard work, sweeping, and taking out the garbage. He also reported to Dr. Tuff that he drives locally most days to run errands such as buying groceries or cigarettes, and to Ms. Auger that he can independently shop for small grocery orders. Dr. Tuff testified that it was noteworthy to him that the applicant drove more than an hour to attend the independent assessment at his office.
Although the applicant currently relies on Ms. Youmans for support, he has lived independently on and off since the 2002 accident. Around 2014, he bought a house and lived there on his own for several years while performing renovations. At other times he lived with his parents, who spend roughly six months per year abroad. Before moving in with Ms. Youmans, he moved several times using his pickup truck. He testified that although he had the help of his friends, he packed, lifted, and carried boxes.

38The applicant testified that he has been unable to work since the 2002 accident. He returned to his job as an apprentice electrician after the accident, but after 10 months it was clear he was unable to continue due to his pain, and he quit after he nearly lost an eyeball in an accident. In 2011, he briefly worked for a subcontractor of Loblaws as a “lumper” loading and unloading packages, but quit after he collapsed at work. The respondent points to evidence that suggests the applicant has done more work than he admits.¹⁰ Even if this were true, we are satisfied that the applicant’s capacity to work is limited. However, work is only one of the activities of daily life referenced in the AMA Guides, which are illustrative examples rather than a closed list.

39The applicant testified that pain and amotivation limit his ability to participate in social and recreational activities. Before the accident, he played the drums in a band and at “jam nights” at bars. Now he has difficulty concentrating on the music, lacks the stamina to play more than two or three songs, and left his band. Before the accident, he frequently rode his motorcycle. Now he does so much less often, and when he does, he uses cruise control due to pain in his hand and wrist. However, the applicant and Ms. Youmans acknowledged that he participates in social and recreational activities with her encouragement. In the month preceding the hearing, he attended a Halloween party of 80-100 people, and travelled by car and bus from his home in Cambridge to downtown Toronto to attend a Toronto Football Club match and an Iron Maiden concert on separate occasions. Earlier in the year, he attended a biker rally in Port Dover. Since the 2006 accident, he has uploaded a number of music videos to YouTube. He testified that he played all of the instruments in the video.

40The applicant relies on Dr. Pilowsky’s opinion that he suffers from a marked impairment because he is unable to work, lacks the physical and psychological capacity to be active within the home or live independently, and is unmotivated to engage in social or physical activities. We find that Dr. Pilowsky overstates the severity of the applicant’s impairment. Her report and her testimony paint a picture of a person who has succumbed to despair, and who lacks the motivation or stamina to meaningfully participate in any activities inside or outside the home. This is out of step with the applicant’s own evidence. He and Ms. Yeomans testified that that he is motivated to assist in household activities to the extent possible because he wants to be a supportive partner and feels guilt about being a burden. He has also lived independently for periods of time since the 2006 accident. On cross-examination, Dr. Pilowsky testified that she was unaware that the applicant participated in social and recreational events such as those he attended in the month before the hearing. For these reasons, we are unable to give any weight to her opinion. Accordingly, we find that the applicant has failed to prove on a balance of probabilities that he has a class 4 (marked) impairment in his functioning with respect to activities of daily living.

41The AMA Guides state that social functioning refers to an individual’s capacity to interact appropriately, communicate effectively, and get along with others, including family members, friends, and members of the public. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Other indicators of social functioning include the ability to initiate social contact with others, communicate clearly, and interact and actively participate in group activities and cooperative behaviour, and to show consideration for others, awareness of others’ sensitivities, and social maturity. An assessor must consider the number of aspects in which social functioning is impaired and also the overall degree of interference with a particular aspect or combination of aspects.

42We find that the applicant has not met his onus of establishing that he suffers from a marked impairment in this area of function. The applicant’s impairment is consistent with at least some level of useful functioning for the following reasons.

43Both the applicant’s and respondent’s experts noted that he was pleasant and co-operative during the assessments, and that he had no difficulty communicating with them. On cross-examination, he agreed that he generally gets along with his parents, siblings, and members of the public. He has no history of evictions, altercations, or other indicators that his functionality has been severely impeded. This demonstrates that the applicant’s ability to communicate and interact appropriately with others has not been meaningfully impaired, except to the extent that he can be more irritable or impatient.

44The applicant, Mr. Resendes, and Ms. Youmans testified that the applicant has “cut off” many of his friends since the 2006 accident, and become more irritable, moody, and withdrawn. Ms. Youmans described their social life as “grim.” Mr. Resendes testified that the applicant went through a “chaotic” series of romantic relationships after the accident. However, this is evidence that the applicant continues to socialise by entering into romantic relationships. He and Ms. Youmans have been in a relationship since September 2020 and currently live together. They both testified that their relationship is very strong. Mr. Resendes testified that although he and the applicant see less of each other, they have continued to be friends, and their relationship has not deteriorated or been “cut off” as others have. Mr. Resendes also testified that the applicant has maintained another close friendship with a fellow musician. The applicant testified that he actively interacts with others through social media and met a number of romantic partners online over the years before he started dating Ms. Youmans. As noted above, he attended a Halloween party of 80-100 people, a Toronto Football Club match, and an Iron Maiden concert in the month preceding the hearing, and an out-of-town biker rally earlier in the year. The applicant testified that he avoids crowds because it will be painful if he is jostled, but not because he is averse to interacting with other people.

45In her report, Dr. Pilowsky stated that the applicant is socially isolated post-accident to the point that he alienates himself from others and is withdrawn and that he often does not wish to spend time with others, even his family and close friends. She noted that he has cut off most people previously involved in his life, speaks to his remaining friends less often, retreats to his bedroom to avoid visitors, and finds crowds particularly bothersome because he no longer trusts others, and fears being harmed or bumped. She stated that he prefers to be alone most of the time, and if he does leave the home, it is to sit alone in a parking lot and listen to music. We give little weight to Dr. Pilowsky’s opinion because she again overstates the applicant’s level of impairment and is inconsistent with the testimony of the applicant and the other lay witnesses. Her description of the applicant’s tendency to withdraw is more absolute than those given by Ms. Youmans, Mr. Resendes, and the applicant himself, and does not account for his demonstrated ability to attend large-scale social and recreational events. For these reasons, we find that the applicant has failed to prove that he has a class 4 (marked) impairment in social functioning.

Concentration, Persistence, and Pace

46The AMA Guides state that concentration, persistence, and pace refer to the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings or to complete everyday household tasks.

47We find that the applicant has not met his onus of establishing that he suffers from a marked impairment in this area of function. The evidence does not show that his ability to concentrate or maintain focus has been significantly impeded.

48The applicant and Ms. Youmans testified that he can be forgetful. They gave two examples: (1) the applicant forgot that she had taken some ground beef out of the freezer two minutes after she told him that she had, and (2) the applicant will go out to get a prescription filled, but come back without it. These examples on their own are insufficient to establish a marked impairment. To the contrary, the applicant has demonstrated that he is able to engage in complex tasks requiring sustained concentration:

In 2015, the applicant successfully completed a written examination to qualify as a licenced electrician. He testified that the examination was two to three hours long, and that he discussed changes to the Building Code with other licenced electricians to prepare. He testified that he still does “small jobs” as an electrician, such as changing a plug or breaker.
Ms. Auger conducted a situational assessment involving three tasks: (1) scheduling a list of tasks and appointments in a planner, (2) making a budget using a list of monthly bills and costs, an opening bank balance, and a monthly income, and (3) making a weekly meal plan and a corresponding grocery list. She observed that the applicant understood what was being asked and did not find it overwhelming, that he persisted with the tasks despite reporting pain and fatigue, and that he took a normal amount of time to complete the tasks. The applicant completed all three tasks with a few errors, namely failing to include one appointment in the schedule, making an addition error in the budget, and repeating meals in the meal plan.
The applicant and Ms. Youmans testified that he could drive safely. Ms. Auger opined that driving can be cognitively demanding, requiring one to know and follow rules, maintain focus, plan ahead, and emotionally tolerate unexpected occurrences. Dr. Tuff noted that the applicant drove more than an hour to attend the assessment at his office, and opined that this was indicative of a moderate impairment at most.

49Dr. Pilowsky stated that the applicant disclosed problems with short and long-term memory, concentration, decision-making, problem-solving, and multitasking and often forgets appointments, misplaces items, and struggles with following conversations or retaining the content of television shows. She opined that he suffered from a marked impairment because his ability to concentrate was impaired to the extent that it interfered with his ability to complete self-care tasks, reintegrate back into his social life, return to the workforce, and complete his prior household tasks. We do not accept Dr. Pilowsky’s opinion for the following reasons:

Except for poor memory, the cognitive impairments Dr. Pilowsky identified are uncorroborated or contradicted by the evidence.
The applicant did not attribute any limits on his ability to complete self-care tasks, socialise, work, or complete household tasks to an incapacity to concentrate or maintain focus.
Dr. Pilowsky’s opinion does not account for the applicant’s demonstrated ability to engage in the activities highlighted above. On cross-examination, she stated that she thought the applicant had completed his licencing examination before the 2002 accident, and was unaware that he had done so in 2015. She did not have the results of the situational assessment or comparable information from other sources such as Ms. Youmans or family members. On cross-examination, Dr. Pilowsky agreed that driving involves executive function, concentration, decision making, and route mapping.
Dr. Pilowsky stated in her report that the applicant’s cognitive impairments caused him difficulty in completing the assessment, particularly the testing component. This is inconsistent with the other assessors’ observations that the applicant did not take an unusually long time to complete tests or have difficulty completing them. On cross-examination, Dr. Pilowsky admitted that she did not observe the applicant complete the tests, but delegated this task to a psychometrist. She clarified that the applicant worked slowly but not with undue difficulty and that he asked her to explain a question in one of the tests, which is not unusual.

50We find that the applicant’s ability to drive a car and a motorcycle, to successfully write his electrician licencing examination, and to do small electrical repairs is inconsistent with a class 4 (marked) impairment.

Deterioration or decompensation in work or work-like settings (adaptation)

51The AMA Guides describe 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 activities of daily living, continuing social relationships, and completing tasks. Stressors common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers.

52We find that the applicant has not met his onus of establishing that he suffers from a marked impairment in this area of function. While his pain and psychological symptoms are no doubt a burden on his capacity to handle stress, he retains at least some useful functioning, as illustrated by his completion of the situational assessment tasks and the licencing examination. Notably, Ms. Auger observed that he did not find the tasks in the situational assessment overwhelming and was able to complete them despite reporting pain and fatigue.

53Dr. Pilowsky opined that the applicant is significantly impeded in his ability to follow instructions or procedures, maintain a schedule, plan, prioritize, make decisions, adapt to stressful situations, problem solve, respond to emergency situations, and complete activities without a break. We do not accept her opinion for the following reasons:

Other than poor memory, the cognitive impairments Dr. Pilowsky identified are uncorroborated or contradicted by the evidence.
Dr. Pilowsky did not have the results of the situational assessment, which specifically tested the applicant’s capacity to engage in tasks such as following instructions, planning, and prioritizing.
Dr. Pilowsky did not account for the applicant’s successful completion of the licencing examination, which she agreed on cross-examination was an example of decision making, problem solving, performing activities within a schedule, setting realistic goals, and making independent plans.

54Accordingly, we find that the applicant has not demonstrated a deterioration or decompensation in work or work-like settings that significantly impedes useful functioning, and that he has therefore failed to prove that he has a class 4 (marked) impairment.

Conclusion

55We conclude that the applicant has not established that he suffers from a class 4 (marked) or a class 5 (extreme) impairment in any of the four areas of function set out in the AMA Guides. Consequently, he has not established that he sustained a catastrophic impairment within the meaning of s. 2(1.2)(g).

2. Did the 2006 Accident Cause the Applicant’s Impairment?

56Given our finding that the applicant is not catastrophically impaired due to a mental or behavioural disorder, it is unnecessary to determine whether the 2006 accident caused his impairment. Nevertheless, we have considered this issue, and find that it did not.

57The applicant developed severe psychological symptoms after the 2002 accident. He received treatment from 2002 to 2004 from Dr. Gouws, who diagnosed him with an adjustment disorder with depressed mood and post-traumatic stress disorder.¹¹ From 2004 to 2007, he received treatment for chronic pain from Dr. Bartolucci, who also diagnosed him with severe depressive syndrome with suicidal ideation, and observed that he suffered from extreme anxiety and paranoia and was socially withdrawn.

58The parties agree that the applicable test for causation is whether the applicant would not be catastrophically impaired “but for” the 2006 accident. The applicant must prove that the 2006 accident was a necessary cause of his impairment, but need not prove that it was sufficient in itself to cause that impairment: Sabadash v State Farm et al, 2019 ONSC 1121 (Div. Ct) at para 39. The applicant can meet the “but for” test by proving that the 2006 accident exacerbated his pre-existing impairment from the 2002 accident: Thiruchelvam, supra at para 33.

59We find that the 2006 accident did not cause the applicant’s impairment for the following reasons:

After the accident on February 9, 2006, the applicant did not see Dr. Bartolucci until October 23, 2006, roughly eight and a half months later. According to Dr. Bartolucci’s note to file of that date, the applicant reported no change in symptoms and no new symptoms due to the accident.
In 2007, the applicant reported to three separate medical examiners that his pain and psychological injuries stemmed from the 2002 accident only, and did not change after the 2006 accident.¹²
The applicant obtained little to no treatment for his psychological disorders for approximately five years after the 2006 accident. This stands in contrast with the treatment he received from Dr. Gouws and Dr. Bartolucci after the 2002 accident.

i. It appears that the applicant did not see Dr. Bartolucci again after the October 23, 2006 appointment. There is no record of a visit in his OHIP summary, and the only document in evidence is a progress report dated April 16, 2007 from Dr. Bartolucci to the applicant’s insurer for the 2002 accident.¹³

ii. The applicant’s OHIP summary shows that his next doctor’s appointment after October 23, 2006 was on July 20, 2007 for the common cold and acute nasopharyngitis. It indicates that he had medical appointments for mental health issues on June 29, 2008, July 4, 2008, and March 30, 2009, but as the corresponding medical records are not in evidence, it is not possible to identify whether and how these appointments relate to the 2006 accident.

iii. After he stopped seeing Dr. Bartolucci, the applicant did not obtain any treatment from a psychologist or a psychiatrist.

The applicant did not apply to the respondent for medical benefits until May 29, 2012, six years after the accident. This was two and a half months after he sustained a concussion in a motorcycle accident on March 3, 2012. Although we can only speculate as to whether and how this accident contributed to his impairment, it further clouds the issue of causation.

60The applicant was adamant that his impairments arose from the 2006 accident, and not the 2002 accident. However, we place little weight on this assertion because of the applicant’s demonstrably poor memory. In particular, he testified that he had essentially no recollection of his psychological condition before the 2006 accident, or the treatment he received from Dr. Gouws and Dr. Bartolucci. We consequently find that the applicant’s self-report is not sufficiently reliable to meet his burden of proof.

61Ms. Youmans, Mr. Resendes, Mr. Kakarelis, and Dr. Pilowsky all testified that the applicant’s pain and psychological symptoms were exacerbated by the 2006 accident. However, the ultimate source of their knowledge is the applicant’s self-report: to them directly, and to the medical examiners in the records reviewed by Mr. Kakarelis and Dr. Pilowsky.

62The applicant also relies on an expert report dated May 18, 2006 by Dr. Dinesh Kumbhare, a physiatrist.¹⁴ Dr. Kumbhare reported that the 2006 accident exacerbated the applicant’s pre-existing chronic pain and psychological symptoms from the 2002 accident. This is the only evidence relied upon by the applicant that is contemporaneous with the 2006 accident. However, we do not place much weight on it because Dr. Kumbhare’s opinion is also based on the applicant’s self-report, which contradicts what he reported to Dr. Bartolucci on October 23, 2006 and three medical examiners in 2007. Further, Dr. Kumbhare did not explain to what extent the 2006 accident exacerbated the applicant’s injuries. We prefer Dr. Bartolucci’s evidence over Dr. Kumbhare’s. Dr. Bartolucci had been the applicant’s treating psychiatrist since 2004. He was much more familiar with the applicant’s psychiatric history and condition than Dr. Kumbhare, who conducted a one-day assessment. Furthermore, Dr. Kumbhare’s assessment was relatively soon after the accident (i.e. seven weeks). At that time, the applicant’s symptoms may still have been acute. His report to Dr. Bartolucci ten and a half months after the 2006 accident is a more reliable indicator of its ongoing impact.

63For these reasons, we conclude that the applicant has not met his onus of proving that the 2006 accident caused him to sustain a catastrophic impairment due to mental or behavioural disorder.

IS THE APPLICANT ENTITLED TO AN AWARD?

64Section 10 of Regulation 664 states that, in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, the Tribunal may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award.

65The applicant did not address his claim for an award in his submissions. The respondent submits that an award can only be ordered with respect to benefits that an insurer unreasonably withheld or delayed in paying. Because no benefits are in dispute, there is no basis for an award.

66We agree with the respondent that an award cannot be made where there are no benefits at issue. A catastrophic impairment determination increases policy limits. It does not mean that any benefits are payable. Accordingly, the claim for an award is dismissed.

COSTS

67The respondent claims its costs thrown away for having to prepare for the issue of whether the applicant suffered a catastrophic impairment because he had a 55% whole person impairment (“WPI”). In addition to claiming a catastrophic impairment under s. 2(1.2)(g) of the Schedule, the applicant had also claimed under s. 2(1.2)(f) that he sustained a combination of physical and psychological impairments resulting in a 55% WPI in accordance with the AMA Guides. Shortly before the hearing began, the applicant informed the respondent that he would not be pursuing this claim. Consequently, each party found it unnecessary to call one of its witnesses: Dr. Tajedin Getahun for the applicant, and Dr. Greg Jaroszynski for the respondent.

68The respondent submits that the applicant decided to abandon his claim under s. 2(1.2)(f) of the Schedule by at least October 28, 2022, when it served a witness list that did not include Dr. Getahun. The respondent asked the applicant to confirm whether he still intended to pursue the claim, and advised that if so, it intended to call Dr. Getahun as a witness. The respondent submits that, because the applicant did not respond until the morning of October 31, 2022, it unnecessarily incurred the cost of preparing Dr. Jaroszynski for the hearing and its submissions on the WPI issue. The respondent relies on Bablak v Gore Mutual Insurance Company, 2022 CanLII 46858 (ON LAT), in which the Tribunal awarded costs against the applicant when she advised minutes before the start of the hearing that she intended to withdraw her application.

69Rule 19.1 provides that costs may be awarded against a party that has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 provides that the Tribunal must consider all relevant factors, including the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to other parties, and the potential impact an order for costs would have on individuals accessing the Tribunal system.

70We decline to award costs against the applicant. By discontinuing his claim under s. 2(1.2)(f) of the Schedule, the applicant streamlined the issues and shortened the hearing. Parties should not be dissuaded from abandoning claims they do not wish to pursue for fear of being punished with a costs award. While it would have been preferable to provide advance notice, in practice, strategic decisions such as this are often made in the late stages of preparation for a hearing, as are settlements. Bablak v Gore Mutual Insurance Company is distinguishable because in that case, the Tribunal found that the applicant’s conduct interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process: para 12. In this case, the applicant’s decision to discontinue his claim under s. 2(1.2)(f) increased the efficiency of the hearing by focusing the issues and obviating the need to call two witnesses.

ORDER

71The applicant has not established that he sustained a catastrophic impairment due to the 2006 accident.

72The applicant is not entitled to an award.

73The application is dismissed without costs.

Released: February 2, 2023