Lockyear v. Wawanesa Mutual Insurance Company, 2023 CanLII 74645

Citation: Lockyear v. Wawanesa Mutual Insurance Company, 2023 ONLAT 21-011819/AABS

Licence Appeal Tribunal File Number: 21-011819/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:

Jeffrey Lockyear

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

PANEL: Sandra Driesel and Mary Henein Thorn

APPEARANCES:

For the Applicant: Jeffrey Lockyear, Applicant Ava Williams, Counsel Ian Furlong, Counsel Daniel Garas, Articling student

For the Respondent: Jacqueline Montgomery, Adjuster Darrell March, Counsel Colleen MacKeigen, Jr. Counsel Samantha Silver, Law Clerk

Court Reporter: Corey Salazar

HEARD: By Videoconference: December 19 to December 23, 2022

OVERVIEW

1Jeffrey Lockyear (“the applicant”) was involved in an automobile accident on August 17, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010[1] (the ''Schedule''). He was denied certain benefits by Wawanesa Mutual Insurance Company (“the respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant collided with a motor vehicle at an intersection while riding his bicycle to work. He argues he meets the criterion for catastrophic impairment (“CAT”) because he was rendered unconscious at the scene of the accident and as a result has suffered from a traumatic brain injury. He submits his loss of consciousness was witnessed and recorded by the paramedic in attendance. The applicant further asserts that because of the brain injury he sustained, he suffers from mental and behavioural impairment that meets the definition of CAT under criterion 8 as defined in the Schedule.

3The respondent’s position is that the applicant’s condition at the scene of the accident is in question. They argue the reporting by the attending paramedic has been unexplainedly altered and lacks credibility and any assessor that has deemed the applicant to suffer a head injury is relying on this unreliable account of the applicant’s condition at the accident scene. Further to this, they argue the applicant’s mental and behavioural condition following the accident can be attributed to other causes and there is no evidence to support his condition is related to the accident.

PRELIMINARY ISSUE

4The respondent filed a motion with the Tribunal on September 15, 2022, requesting the Tribunal issue a summons for a City of Toronto (“City”) employee, Shamez Kassam, superintendent of professional standards for Toronto Paramedic Services, to speak to the documentary evidence submitted in relation to the testimony of ambulance attendant Adam Drew. Counsel for the City, Amanda Barclay and Amy Murakami, appeared on the first day of hearing. They argued that the City is not a party to the hearing and any expected testimony regarding the City’s internal policies and standards was either privileged or not relevant to the proceedings.

5The respondent failed to convince us that any evidence or testimony from Shamez Kassam was relevant to the issues before the Tribunal, as required by s. 12(1) of the Statutory Powers Procedure Act. We therefore declined to issue the summons requested by the respondent.

ISSUES

6The following are the issues to be decided:

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

ii. Is the respondent liable to pay an award under Regulation 664 for unreasonably withheld or delayed payments to the applicant?

iii. Is the applicant entitled to interest on any overdue payment of benefits Is the respondent entitled to the requested costs?

iv. Is the respondent entitled to costs?

7The applicant withdrew the following issue:

I. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from October 9, 2020, to date and ongoing?

RESULT

8We find the applicant has failed to satisfy the onus of providing that he sustained a CAT impairment as a result of the accident.

9The applicant is not entitled to an award under Regulation 664

10As no benefits are overdue, the applicant is not entitled to interest.

11The respondent is not entitled to costs.

ANALYSIS

12The applicant seeks a determination of catastrophic impairment (“CAT”) under two different criteria defined by the Schedule. The applicant submits he meets the test of CAT under Criterion 6 because he sustained a brain injury evidenced by the low Glasgow Coma Scale test (“GCS”) result determined at the scene of the accident by the attending paramedic. He adds that he also meets the definition of CAT under Criterion 8 because he now suffers a marked impairment in a mental or behavioural disorder as a result of the injury he sustained in the subject accident.

13The respondent argues the applicant has not met his onus to prove that he has sustained a CAT impairment as a result of the subject accident. They argue the applicant’s current mental and behavioural condition is not due to the accident and may be attributed to other situations such as his loss of job, breakup of his marriage, etc.

Catastrophic Impairment under Criterion 6

14In order to meet Criterion 6, the applicant must first prove that he sustained a brain injury as a result of the accident. According to s. 3(2)(d)(i) of the Schedule in effect at the time of this 2015 accident, any person who scores a 9 or less on the GCS as a result of the accident is deemed to be CAT. The GCS is an awareness/responsiveness test that measures three areas of response (eye opening, verbal response and motor skills, which are represented by the letters of E, V and M, respectively as discussed below) on a scale of 1 – 5. The combined maximum score of 15 indicates a complete awareness and the lowest score of 3 indicates a coma.

15Aside from his own testimony, the applicant relies on the attending paramedic with his reporting of the incident, the medical opinions of assessors, and video evidence to prove he lost consciousness when he collided with the vehicle. He submits this is proof he meets criterion 6.

16The respondent argues the video is not significant as it doesn’t provide evidence to prove the applicant suffered a loss of consciousness (“LOC”). They submit the paramedic’s evidence has been unexplainably altered and therefore lacks credibility. Further, the only assessors who agree with a LOC causing a brain injury are relying on questionable evidence.

Video Evidence

17The applicant submitted a video that he believes supports the argument that he meets criterion 6 because he lost consciousness at the scene of the accident. The applicant believes this video supports a disputed and revised report of a depressed GCS of 8 taken at the accident scene by the paramedic.

18Upon reviewing the video, we found that it was not helpful in any way in assessing the applicant’s condition at the scene of the accident because:

a. The view does not capture the actual accident,

b. We could not clearly identify any person in the video especially not the applicant or the paramedic.

c. There is no audio to establish communication, and

d. The video is not timestamped and therefore there is no way to determine any real time activity.

19For the reasons given above, we put no weight on this evidence as we did not find the video helpful in trying to determine the applicant’s condition at the accident scene.

GCS Score by the Attending Paramedic

20An important issue raised by the respondent is that the paramedic, Adam Drew, completed an Incident Report regarding the accident and recorded a GCS score of 15, meaning the applicant was conscious when the paramedic attended the scene. Months following the accident, the paramedic revised his report to show the applicant had a GCS score of less than 9. Validation of a correct score is most important because the latter score would deem the applicant CAT in accordance with the Schedule. As mentioned above, the video evidence was not supportive to any position. We then looked to the testimony of the paramedic to try to determine why the reported scores were significantly different.

The Ambulance Call Report:

21Adam Drew attended to the applicant at the scene of the accident. He testified that he witnessed the accident happen from approximately four car lengths behind the accident scene. He stated that when he approached the applicant, he found him unconscious for a brief period, but the applicant quickly regained consciousness and complained of a headache. Mr. Drew secured his neck and put him on a spinal board and there were no visible physical injuries.

22Mr. Drew and his partner completed and signed off on an Ambulance Call Report the morning of the accident This Ambulance Call Report notes the paramedic assessed and recorded the applicant’s GCS scores three times from 7:40 am to 7:50 am, all resulting in a score of “15 out of 15”. This report does not mention the applicant being unconscious at any time. Also, the paramedic’s notes state “no traumatic injuries to the head and neck found”. He also notes in this report the applicant suffered minor abrasion on the left upper arm, and minor abrasions on the right index finger and that Mr. Lockyear was able to speak and articulate to Mr. Drew that he had a headache.

The Toronto Paramedic Services Incident Report (August 18, 2015)

23In evidence is the Incident Report prepared August 18, 2015, a day after the accident. This statement of events recorded by Mr. Drew explains him witnessing the accident and states that on arrival the applicant was unconscious upon contact and was wearing a helmet. Mr. Drew writes the applicant regained consciousness shortly after contact and notes a ‘GCS 15’ with no physical injuries and the applicant complained of a headache. It notes the applicant was taken to the hospital.

The Toronto Paramedic Service Incident Report ( Revised November 20, 2015)

24Mr. Drew revised the Incident Report on November 20, 2015, three months after the subject accident. This revised report refers to the first Incident Report, citing the original to have a “more detailed description” of the events related to the accident. This report changes the statement of the paramedic to say that a GCS test administered upon arrival at the scene resulted in a score of “8 out of 15” , contrary to the score of “15 out of 15” originally recorded on the first Incident Report and the Ambulance Call Report.

25In his testimony, Mr. Drew could not explain why he changed the GCS score on the revised report. He stated that he does not have notes in his possession that he referenced that might explain the changed GCS test results. He could not explain how he was able to recall the detail of the revised 8 score (he records as E = 1, V = 2, M = 5) from sheer memory, three months after the accident. Further to this, Mr. Drew was unable to provide an explanation why a second incident report was necessary.

26The applicant was taken to the Toronto East General Hospital (“TEGH”) from the accident scene. The intake records of TEGH dated August 17, 2015 (‘Hospital Report’ in evidence) indicate that a GCS test was also conducted at TEGH and Mr. Lockyear scored 15/15. The applicant reported to TEGH attendant T. Bajwa that he did not recall striking his head at the time of the accident and the applicant also confirmed this in his testimony. There is no mention of a GCS score lower than 15 being recorded prior to admission to the hospital.

27We did not find the contradictory GCS information of 8/15 recorded on the revised Incident Report to be credible as such information and score are not supported by any other evidence, particularly that from Mr. Drew. There was no other evidence that suggests a GCS result of anything other than a 15/15. We therefore place no weight on the revised Incident Report.

Dr. K. Meloff, Neurologist

28Dr. K. Meloff, a now retired neurologist testified to his completion of the OCF-19 (Determination of Catastrophic Impairment Application) in support of his finding that the applicant meets criterion 6 and should be deemed CAT.

29Dr. Meloff states in his September 15, 2017, report that, having examined the applicant, his finding of CAT was based on the ongoing symptoms exhibited by the applicant and the depressed score of 8 recorded by the paramedic on the Incident Report. Dr. Meloff also stated that he relied on the findings of Dr. Staniloiu, Psychiatrist with the Sunnybrook Health and Sciences Centre, who reported on October 6, 2016, that her impression is that the applicant acquired a traumatic brain injury based on the GCS score of 8/15 at the scene of the accident.

30Dr. Meloff also testified to his findings in a report of September 12, 2018 where he notes that after viewing the video that captured images of Mr. Lockyear “following his collision with a motor vehicle on August 17, 2015”, Dr. Meloff claims the timeframe on the video shows the applicant unresponsive for almost two minutes. He claims he repeatedly viewed the video and concludes (what he states, “any other qualified person would”) that the applicant had a GCS score of nine or less during that period on the video. He therefore finds it reasonable that the revised GCS score on the Incident Report of the paramedic can be correct.

31In our review of the video, we found that we were unable to determine of who was in the video and if the applicant was ever unconscious. We cannot find how Dr. Meloff was able to calculate any LOC or determine any type of communication between the applicant and the paramedic. We are not satisfied the video can provide this detail to the doctor. Also, the doctor fails to provide any other explanation as to why he accepted the revised score of 8/15 while not accepting the scores of 15/15 reported multiple times. We therefore place no weight on Dr. Meloff’s evidence.

Dr. G. Esmail, Neurologist

32The respondent called Dr. G. Esmail, Neurologist who testified that after reviewing the Ambulance Call Report and the first and second Incident Report, there was insufficient information to make a CAT determination based on a GCS. He expressed his concerns with the reliability of the revised Incident Report being completed three months after the accident.

Conclusion regarding criterion 6

33We do not find from the evidence that the applicant sustained a catastrophic brain injury as defined under criterion 6 in the Schedule.

Catastrophic Impairment under Criterion 8

34Criterion 8 refers to CAT impairments due to a mental or behavioural disorder resulting from the accident. These impairments are rated according to how seriously they affect a person’s useful daily functioning. The AMA 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-like setting)

35Catastrophic impairment is a legal definition and not a medical test, although the legal test involves consideration of medical evidence. The burden of proof rests with the applicant to prove on the balance of probabilities that, as a result of the accident, he sustained a catastrophic impairment as defined in clause 3(2)(f) of the Schedule, that was in effect at the time of this accident. Under paragraph (f), a catastrophic impairment is a marked (Class 4), or extreme (Class 5) psychological impairment, that affects useful function in any one of the four functional domains.

Dr. L. Gerber, Psychiatrist

36Dr. Gerber completed the OCF-19 form for a CAT impairment based on criterion 8, as well as authoring the report of January 6, 2021, in support of his position. He conducted interviews with the applicant, the applicant’s ex-wife and the applicant’s sister-in-law. The doctor also reviewed an extensive list of documents from 2015 to date of his assessment. He writes at page 48 of his report:

“In summary, as a direct result of the accident on August 17th, 2015, Mr. Lockyear sustained a Severe Traumatic Brain Injury. He has ongoing symptoms of a Mild Neurocognitive Disorder due to a Traumatic Brain Injury with classic symptoms of a Postconcussional Syndrome.”

and:

“Given the chronicity and severity of his symptoms, my assessment of Mr. Lockyear is that he sustained a serious and permanent impairment of important mental health functioning as a direct result of the accident on August 17, 2015.”

37Dr. Gerber explains in his report that he uses the appropriate AMA Guide² to assess the applicant’s severity of mental impairment in four spheres. He provides his findings to be as follows:

Area or Aspect of Functioning	Dr. Gerber’s findings of impairment:
Activities of Daily Living	Class 3 (Moderate)
Social Functioning	Class 4 (Marked)
Concentration, Persistence and Pace	Class 3 (Moderate)
Adaption (In a work-like setting)	Class 3 (Moderate)

38It is well established jurisprudence that a single marked impairment will qualify as a “catastrophic impairment”. In Pastore v. Aviva Canada Inc., 2012 ONCA 642, the Court of Appeal for Ontario held that, for criterion 8 as stated in the version of the Schedule relevant to Mr. Lockyear, the applicant need prove only one function to be at the marked impairment (Class 4) level in order to qualify as catastrophic impairment.

39In Pastore, the Court of Appeal summarized the following three-stage approach to deciding the issue of catastrophic impairment due to mental or behavioural disorders:

1. Did the accident cause the applicant to suffer a mental or behavioural disorder?
2. If it did, what is the impact of the mental or behavioural disorder on the applicant’s life?
3. In view of the impact, what is the level of impairment?

Did the accident cause the applicant to suffer a mental or behavioural (psychological) disorder?

40Having considered the following, we are not convinced by the evidence, on a balance of probabilities, that the applicant suffered from a mental or behavioural impairment as a result of the accident.

41As noted above, the applicant relied on a GCS score of 8/15 found in the revised Incident Report to claim a catastrophic impairment because of a brain injury. For reasons explained above, we rejected this evidence and therefore assigned little weight to any assessment that relied on this revised Incident Report to establish that any brain injury related impairment that applicant may suffer was caused by the accident. We do not have evidence of medical reports or imaging that suggest the applicant suffered a brain injury as a result of the accident. Testing done at the hospital where the applicant was taken following the accident failed to show any brain or head injury. Aside from the one discredited report there is no other evidence of a GCS being administered to the applicant that has not resulted in a 15/15 score.

Conclusion regarding criterion 8

42Because Dr. Gerber has determined the cause of the applicant’s mental and behavioural impairment was caused by a brain injury sustained in the accident and the applicant has failed to prove he sustained such an injury in the accident, we cannot find the accident caused the applicant’s psychological impairment.

43Because we did not determine the accident to have caused the applicant’s psychological impairment, it is not necessary for us to make a decision on the remaining two stages in the approach established in Pastore.

44We agree with the respondent that the applicant has failed to meet the onus of proving on a balance of probabilities he has sustained a catastrophic impairment under criterion 8 as a result of the accident.

Award Under Regulation 664

45Section 10 of the Ontario Regulation 664 permits the Tribunal to award a lump sum of up to 50 per cent of the amount of which the applicant was entitled at the time of the award together with interest on all amounts owing if it finds that the respondent has unreasonably withheld or delayed such payments.

46The respondent’s act of denial of the applicant’s claim to be CAT impaired, in and of itself, does not automatically constitute a basis for an award. Further, an award under s. 10 of Regulation 664 is in the context of delayed or withheld payment of benefits. A CAT determination is not a benefit in itself; rather, it is the highest tier of automobile accident benefits. As none of the issues in this application involve a dispute over a benefit (noting that the applicant withdrew his claim for an income replacement benefit at the start of the hearing), there is no basis to order an award based on the CAT determination issue alone. Even if we are wrong and that an award under s. 10 could apply in this context, we did not have any evidence that the respondent engaged in conduct that would merit an award. The claim for an award is dismissed.

Interest

47Interest is payable under the Schedule on overdue payment of benefits. As no benefits are found payable, the claim for interest is dismissed.

Respondent’s Requests for Costs

48In accordance with Rule 19.1 of the Tribunal’s Common Rules of Practice and Procedures a party may make a request for costs where it believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.

49At the hearing, the respondent stated they are seeking costs for the time they expended on preparing to defend an issue in dispute that was withdrawn by the applicant at the start of the hearing (regarding an income replacement benefit). The respondent failed to provide evidence on why this would be considered vexatious, frivolous, or bad faith behaviour. They also failed to provide details of the amount of costs they are seeking.

50We do not find any evidence that the applicant’s behaviour warrants an award of costs. The request for costs is dismissed.

CONCLUSION AND ORDER

51We find the applicant is not catastrophically impaired as defined in the Schedule.

52The applicant is not entitled to an award under s. 10 of Regulation 664.

53The applicant is not entitled to interest.

54The respondent is not entitled to costs.

55We dismiss the application.

Footnotes

1. 2American Medical Associations Guide to the Evaluation of Permanent Impairment, Fourth Edition, 1993