Citation: Veljko v. Intact Insurance Company, 2023 ONLAT 21-009749/AABS

Licence Appeal Tribunal File Number: 21-009749/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:

Malinka Veljko

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Sandra Driesel

APPEARANCES:

For the Applicant:

Malinka Veljko, Applicant

David Cutler, Counsel

For the Respondent:

Dylan Crosby, Counsel

Linda Matthews, Counsel

Chelsea Don, Legal Assistant

Court Reporter:

Taylor Boden

HEARD: by Videoconference:

November 21 – November 25, 2022

REASONS FOR DECISION

BACKGROUND

1The applicant Malinka Veljko was involved in an automobile accident on January 12, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2Mrs. Veljko was in the front passenger seat of a 2001 Honda Civic driven by her husband when they were rear ended by another vehicle while approaching a stop light. According to the Ottawa Paramedic Service report¹ taken at the scene, the airbags did not deploy, the applicant did not hit her head and she was wearing her seat belt. The applicant did not lose consciousness and she was able to remember the accident details. The report noted her legs did not hit the dash. The applicant complained of neck pain and back pain at the scene. The report states the applicant denied having any chest pain or pain in the abdomen, chest, limbs or signs of trauma.

3The applicant was initially treated for minor physical injuries determined to be as a result of the MVA. In May 2021, the applicant submitted an Application for the Determination of Catastrophic Impairment (“OCF-19”) to the respondent Intact Insurance Company (“Intact”) based on a mental and behavioural impairment (Criterion 8) as a result of this 2019 MVA.

4The respondent takes the position that Mrs. Veljko has failed to meet her onus that her impairments are catastrophic. They submit the applicant never lost consciousness and she has not been diagnosed with a concussion. She has never sought psychological or psychiatric treatment and (at the time of the hearing) she still has the majority of her non-catastrophic benefits² available to her. The respondent also notes the OCF-19 and any opinion as to her Criterion 8 impairments are not provided by any medical person with an expertise in psychology or psychiatry. Intact further submits that surveillance in evidence as well as a review of clinic notes and records will indicate that the applicant has failed to be consistent in her reporting of her pre- and post-accident life.

ISSUES

5Has the applicant sustained a catastrophic impairment as defined by the Schedule?

LAW

Catastrophic Impairment

6The applicant argues that she suffers from psychological and behavioural disorders that meet the definition of catastrophic impairment (CAT), set out in paragraph 8 of s. 3.1(1) of the Schedule (Criterion 8) as follows:

For the purposes of this Regulation, an impairment is a catastrophic impairment if an insured person sustains the impairment in an accident that occurs on or after June 1, 2016, and the impairment results in……

….an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one of more areas of function that precludes useful functioning, due to mental or behavioural disorder.

7The Guides establish various criteria for establishing if someone is CAT. Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides set out the four spheres of functioning and the levels of impairment as represented in the chart below:

Area or Aspect of Functioning

Class 1: NO Impairment

Class 2: MILD Impairment

Class 3: MODERATE Impairment

Class 4: MARKED Impairment

Class 5: EXTREME Impairment

Activities of Daily Living

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

Social Functioning

Concentration, Persistence and Pace

Adaption (in a work-life setting)

8In order to meet the threshold for a CAT impairment under criterion 8, an individual must have sustained a marked (class 4) impairment as a result of the MVA in three of the four spheres (or “aspects”) of functioning or one extreme (class 5) impairment due to a mental and behavioural disorder.

REVIEW OF EVIDENCE

The applicant’s evidence

Applicant’s testimony of her pre- and post-MVA life

9The applicant is a 71-year-old woman resident of Ottawa and whose first language is not English; it is Serbian. She did not request or arrange for a Serbian interpreter for these proceedings. During her testimony at the videoconference hearing, her husband assisted with the computer operation as she participated from her home, but he left the room while she testified. She presented as having an understanding of the hearing process but expressed several times that she found the situation tiring.

10When speaking about her pre-accident life, the applicant mentioned she came to Canada in 1993 because of the Croatian war. She stated that at the time prior to the MVA her health was excellent, she had no psychological issues, no trouble with sleeping and wasn’t taking any medication. She loved her work and her co-workers. She did all the household chores while her husband did any outside work. She stated she did the grocery shopping, and her husband would sometimes assist her because he drives, and she doesn’t. Before the accident, she had no issues with riding in a car and she would travel by plane occasionally. She was very social, participating in holiday celebrations with family and her church and she enjoyed babysitting her grandchildren. The applicant says she was happy, without frustrations or irritability. She could deal with stress and having people around her.

11The applicant recalls she was working the day of the MVA. At the time, she was employed as a cleaner at the Ottawa hospital and had been so for approximately 15 years on a permanent part-time basis. She remembers her husband was driving her home but the next thing she can recall is waking up in the hospital. She was released after hospital testing was completed, at which time she remembers feeling disoriented and unable to find the exit in the hospital where she’d been employed for many years.

12Following the MVA, the applicant remembers seeing her family doctor, Dr. P. Fluit. She also remembers going to physiotherapy, noting it helped and that her pain gets worse when she stops. The applicant states that since the MVA she takes prescription medication that her husband helps administer but she doesn’t recall what medication she’s taking. She states that because of the accident she is not happy, and she has continuous pain in her head, back of her head, neck, shoulder, lower back and legs. She experiences a lot of headaches. She says the level of her pain goes up and down.

13In explaining her post MVA life the applicant stated she has “good days and bad days”. On a good day she goes out a little bit, goes to the park and goes out with her husband to grocery shop or go to the pharmacy. She explained that she returned to work, but it was difficult because of pain, and she was depressed. She found that people around her and loud noises bother her. She says that although she decided to retire, she misses working, misses helping people and her friends at work. The applicant states she can no longer do household chores, cleaning or cooking because of poor balance, headaches and pain. She can’t shop and she requires help bathing and dressing.

14The applicant explains her inability to socialize after the MVA is because of her health problems. She hasn’t travelled outside of Ottawa, and she won’t go to church because it is noisy. She doesn’t want to see people because she is depressed and in pain. She can no longer babysit and doesn’t feel close to her husband and children because of her pain. She now has to write things down because of her poor memory and she feels frustrated and cries a lot. She is now scared to ride in the front seat of a car. She feels up and down, doesn’t sleep well and is worried about her health.

15When questioned by the respondent, the applicant claims she doesn’t remember many details of the MVA. She responded to the majority of questions with “not sure” or “I can’t remember”. The applicant couldn’t remember if the air bags deployed but stated she lost consciousness. When counsel directed her to the Ambulance Report stating she did not lose consciousness, the applicant replied, “I can’t remember anything”. When reminded of the account of the MVA she gave to Intact on February 7, 2019³ the applicant claims she doesn’t remember making the statement. In this same account to Intact, the applicant stated she was diagnosed with a concussion at the hospital. Her counsel confirmed during this testimony that in fact, there is no diagnoses of concussion.

16While the applicant testified that she remembers physiotherapy, seeing her family doctor and seeing Dr. S. Marshall following the MVA, she says she can’t remember the Functional Abilities Evaluation conducted July 26,2019 by Dr. Damien Marion (Doctor of Chiropractic)⁴ where he concluded that the applicant was able to kneel, crouch, sit and stand and that she demonstrated an ability to work at a light to medium level, appropriate for her pre-accident work description. The applicant said she can’t remember the medical examination on January 28, 2020, by Dr. Margaret White, Specialist in Sports Medicine⁵. In this examination, the applicant reports to doing light cooking, light cleaning, but not vacuuming or mopping due to her back and left shoulder pain. The applicant reported to have returned to work on modified duties. The applicant claims she does not remember telling the doctor anything. When her family doctor records were reviewed with her, the applicant stated she cannot remember why she didn’t mention all the symptoms she now reports to be related to the MVA until after multiple visits and many months after the MVA.

17When asked why she didn’t mention psychological or emotional issues to her family doctor anytime soon after the MVA and why she never sought psychological counselling as suggested by one or more examiners, the applicant would only respond with “don’t know”.

Testimony of the applicant’s son

18The applicant’s son Sasa (“SV”) testified about his mother’s behaviour before and after the MVA. He is currently in Serbia with his wife and daughter. He and his family moved there in June 2022. He says he talks to his mother approximately twice a week. He talks to his father more regularly because his father is more computer literate. SV states he is concerned about being away from his mother, given her health. He has an older brother in Ottawa, but this brother is on the road a lot and not able to be there for the applicant. SV testified that he did not know of his mother having any health issues prior to the MVA. He noted his father had health issues at one time, so his mother was his caregiver while she continued to take care of the household while working part-time. He also spoke of her community involvement prior to the MVA, she hosted parties, BBQ’s and worked in support of the Serbian Festival and church celebrations.

19SV states that within six months after the MVA his mother began to get confused, when before she was always sharp. She was in pain and wasn’t communicating as she once had. She complained of headaches. He notes his mother returned to work, but things were different. She was only doing light cleaning and cooking. SV and his wife would drive his mother to various doctor appointments, and they began assisting with cooking and housekeeping. He opined that his mother’s mental and physical health has worsened. She stopped socializing and she stays home most days. He knows that his mother is worried about her health and that she can no longer enjoy life like she did before the MVA. SV was aware that sometimes his mother walks with a cane, or she leans on a shopping cart or relies on a person to assist her with her balance. He noted that the physiotherapist suggested she stop using the cane, but she has a fear of falling down. He did add that sometimes she has better days when she doesn’t feel she needs assistance to walk.

20SV knows of the recommendation for a Serbian speaking psychiatrist or psychologist, to counsel his mother, but he says couldn’t find one in Ottawa. He states he neither contacted the College of Psychologists or Psychiatrists nor explored other avenues because his mother’s lack of computer literacy limits her ability to do virtual appointments.

Dr. Shawn Marshall, ABI Specialist

21The applicant’s OCF-19 was completed by Dr. Shawn Marshall who was consulting with the applicant in the Ottawa Hospital’s post-concussion outpatient clinic, his specialty being Acquired Brain Injury (“ABI”). The doctor testified, not as an expert witness but as a treating physician. He admits that he has no formal certification to complete a CAT assessment in accordance with the Guides and that is why he provided a letter with the OCF-19 and not a formal CAT assessment or evaluation report. Dr. Marshall notes that he completed the OCF-19 believing it would initiate CAT testing and not that it would stand alone on its merits to confirm any finding the applicant meets the test of CAT.

22Dr. Marshall admits that his opinion that the applicant may have suffered a CAT impairment was derived by the applicant’s self-reporting and not based on any activities of daily living (“ADL”) or cognitive testing. Also, he notes he didn’t review other notes or reports from other medical professions or occupational therapists because he wasn’t completing an assessment report.

23Dr. Marshall did, multiple times, recommend psychological counseling for the applicant and further suggested the counselor should speak Serbian.

Dr. Bob Karabatsos, Orthopaedic Surgeon

24Dr. Karabatsos testified in support of an Orthopaedic Medicolegal Assessment of the applicant conducted on June 29, 2021⁶.

25Through an interview with the applicant, Dr. Karabatsos determined the details of the subject MVA to be that the applicant was rear ended in a vehicle driven by her husband. The applicant reported the driver of the other vehicle fled, but later presented to police. The applicant was uncertain as to whether the airbags deployed, and she reported having no memory of the accident. The doctor ascertained the applicant did not sustain specific fractures or dislocations, and no surgery was recommended or performed as a result of the accident. He notes she was diagnosed with a severe closed head injury. He also notes the vehicle was written off due to damage sustained in the accident.

26The doctor recorded the applicant’s pre- and post-accident health and employment situations. He notes that the applicant did not suffer any pre-existing back or neck pain, that she experiences post-accident. The applicant reported to be confined to her home and she can sit in her backyard. She claims she is unable to interact with her community, family and children and unable to play with her grandchildren. She walked with a cane and relied on her son for support while walking. Dr. Karabatsos opined that as a result of the accident, Ms. Veljko has not fully recovered from the trauma of her MVA injuries. She is unable to perform all of her personal and housekeeping activities, she has not been able to resume employment and that physical and psychological therapy is required. He adds that psychological symptoms and impairments need to be managed if further improvement is expected.

Summary of the applicant’s evidence

27The applicant was unable to recall or comment on information presented in evidence, such as her family doctor records, or reports and records from various professional and medical examiners. Therefore, her testimony was not useful in helping me determine an explanation for inconsistencies that exist between some evidence.

28The testimony of the applicant’s son was slightly supportive to establishing some of his mother’s pre- and post-MVA activity, but he was unaware of when his mother returned to work after the MVA and when she eventually stopped working or why she stopped working. SV was aware of the recommendations for a Serbian speaking psychologist or psychiatrist and explains he didn’t pursue any online access because his mother is not computer literate, yet other evidence shows that the applicant has participated in medical examinations virtually, including most visits with her latest family physician. He did however testify to knowing that his mother has ‘good and bad days’ as she stated. What I derive from this, is that with certain activities of daily living the applicant does not suffer a complete inability to perform certain tasks when she is having a ‘good day’.

29Both Dr. Marshall and Dr. Karabatsos admitted that when forming their opinion regarding the applicant’s impairments related to the MVA, they were unaware of inconsistencies in what the applicant had reported to them and what has been either reported by her or included in other notes or records in evidence, such as:

a. According to the Ambulance Report, the damage to the applicant’s vehicle was “minor.” Counsel for the respondent noted that the car was most likely not repaired because it was near 20 years old (2001 Civic), nothing to due with the severity of the impact.

b. On more than one occasion (including Ambulance Report and the report to the insurer), the applicant had been able to recall the details of the accident. However, the applicant reported to have no memory of the MVA to both doctors.

c. The applicant reported to some assessors that she hit her head in the accident and lost consciousness. At the accident scene, the applicant said she did not hit her head and she had not lost consciousness.

d. While both doctors assumed the applicant never returned to work after the MVA, evidence shows she had returned to work for some time before finally retiring.

30I have put little weight on the findings by either Dr. Marshall and Dr. Karabatsos that the applicant suffers marked impairments that would establish any psychological and behavioural impairment meet the definition of catastrophic because, while each admit that their expertise is not in the area of psychological or psychiatric care, their focus was on the applicant’s physical ability to carry out various activities versus her inability to function due to a psychological impairment. Also, they did not perform testing to evaluate any impairments for each sphere of functioning in accordance with the Guides related to Criterion 8, and therefore neither concluded that she suffered a class 5 impairment in any one sphere or a class 4 impairment in at least three of the spheres. Finally, both doctors presumed a psychological impairment based on the self-reporting of the applicant, which has proven to be inconsistence with some of the other evidence presented.

31As the burden of proving a CAT impairment rests with the applicant, for the reasons above, I find the applicant failed to meet that burden. This is enough to dismiss this application. However, for completeness, I will review the respondent’s evidence.

Respondent’s evidence

Video Surveillance of the applicant (April 9, 10 & 11, 2022)

32The respondent submitted video surveillance by Northwood & Associates⁷. In this surveillance, nothing was captured on April 9. On April 10, the applicant walks out of her house to the car unassisted. She opens the rear passenger door, enters, sits and reaches to close the door. She is later seen entering a pharmacy, exiting and then entering a grocery store where inside, she is seen pushing a shopping cart and bending over to select an item. The applicant walked back to her car. She and her husband drove a mere minute or two to a Giant Tiger in the same plaza (she wasn’t followed into the store). When exiting the Giant Tiger, with her husband walking ahead and carrying bags, the applicant picked up, inspected and returned a pillow from an outdoor bin and walked back to the car. From her initial departure from the car to the pharmacy until she entered the car to go home, the applicant walked unassisted by any device or person. When arriving home, the applicant got out of the back seat unassisted and entered her home.

33The next day, April 11, the applicant and her husband leave their house to attend an insurance examination with Dr. Ranjith Chandrasena. On this day, the applicant walks with a cane and relies on her husband to assist her in and out of the car, assist her in going through the front doors of the office building and she holds onto him for support.

34Regarding the video surveillance, the applicant states the change in her demeanor on the dates shown is evidence of what she had previously reported of her having “a good day versus a bad day”. I find this surveillance evidence to support the applicant’s ‘good and bad day’ explanation. It also indicates that she can, sometimes perform certain tasks of daily living.

Dr. Ranjith Chandrasena, Psychiatrist

35Dr. Chandrasena testified in support of his CAT assessment report⁸. The doctor assessed the applicant on April 11, 2022, as documented in his report dated May 20, 2022. The applicant attended in person with the doctor and her husband was present. A nurse attended via videoconference and telephone. The doctor performed psychological testing in accordance with the Guides to determine if the applicant suffers from a catastrophic impairment under Criterion 8. The doctor concluded the applicant only suffers a moderate impairment (class 3) in each of the four spheres of functioning measured to establish catastrophic impairment. He did however suggest the applicant may suffer from dementia. He testified that he arrived at this conclusion considering the reporting by the applicant as to her pre- and post-MVA life, specifically the fact that she reported to him her inability to remember many things.

36Dr. Chandrasena notes his review of various other assessments, including that of Dr. Margaret White, Specialist in Sports Medicine dated March 30, 2020⁹. The report by Dr. White reports the applicant as stating she was able to complete certain functions of daily living such as light cooking, light cleaning and she was able to perform self-toileting. Dr. White was aware that the applicant had returned to work after the MVA. Dr. White admits that diagnosis of the applicant’s mental status is not in her area of expertise, but she notes that within two years, from when Dr. White previously assessed the applicant, the applicant presented differently, whereas in this latter assessment she relied heavily on her husband. Dr. White also suggested in her conclusion, that the applicant was taking pain medication that could make the applicant confused and may affect her stability and cognition.

37Dr. Chandrasena also reviewed the FAE assessment by Dr. Damien Marianne, Chiropractor¹⁰ that was conducted for determining the applicant’s entitled to Income Replacement Benefits. Dr. Marianne concluded the applicant was physically capable of light to medium work. Ms. Sherry Mosher-Taillefer, OT conducted an assessment to determine if the applicant suffered catastrophic impairment and her report was reviewed by Dr. Chandrasena. The OT’s report notes the applicant had an inability to recall the day before her assessment and did not remember much before the MVA. The applicant reported to the OT that she was often frustrated, easily irritated, has reduced mood and isolates herself. The OT reported that her current presentation was considerably different from what was noted in prior assessments.

38In the catastrophic assessment by Ms. Mosher-Taillefer, she notes that the reasons for the drastic and severe reduction in the applicant’s movements are not known to her and later added, “There is no explanation for this presentation”. As an OT, Ms. Mosher-Taillefer does not make a diagnosis of the applicant’s psychological impairment and defers same to an appropriate assessing medical practitioner.

39Dr. Chandrasena, who was the only medical assessor qualified to assess catastrophic impairment, concluded that the applicant is not CAT impaired based on Criterion 8 as he did not find her to suffer marked impairments in any spheres of functioning.

40In summary, I found the respondent’s evidence consistent with itself that the applicant had not suffered an impairment that meets the definition of catastrophic.

CONCLUSION

41The applicant has applied for a catastrophic impairment for a mental and behavioural impairment and failed to provide psychological or psychiatric assessments by a qualified professional and the applicant has failed to seek psychological or psychiatric counselling that not only may support her wellbeing but may have assisted her in meeting her onus that she may have such an impairment. With the evidence presented, I do not find the applicant sustained a catastrophic impairment as a result of the accident, as defined in the Schedule. I dismiss the application.

Footnotes

1. 1Page 7 of the Applicant’s Document Brief
2. 2Sec. 18 of the Schedule sets the monetary limit for those who have sustained more that minor but non-catastrophic injuries to be $65,000 for medical and rehabilitation benefits.
3. 3Page 1160 of the Respondents Document Brief
4. 4Page 536 of the Respondents Document Brief
5. 5Page 1170 of the Respondents Document Brief
6. 6Page 167 of the Applicant’s Document Brief
7. 7Page 1145 of the Respondent’s Document Brief
8. 8Page 56 of the Respondent’s Document Brief
9. 9Page 585 of the Respondents Document Brief
10. 10Page 535 of the Respondent’s Document Brief