Licence Appeal Tribunal File Number: 20-010714/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:
Kayla MacMillan
Applicant
and
Toronto Transit Commission
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Kayla MacMillan, Applicant Gus Triantafillopolous, Counsel Shannon Kelly, Counsel
For the Respondent:
Rowin Gocheco, Manager, Claims Department
Chad Townsend, Counsel Nabil Mahmood, Counsel
HEARD: by Videoconference:
August 21 to 30, 2023
OVERVIEW
1Kayla MacMillan, the applicant, was involved in an automobile accident on January 9, 2012, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Toronto Transit Commission, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2At the commencement of the hearing, the applicant made a request for the draft report of Dr. Joel Eisen, one of the respondent’s IE assessors. The applicant submitted that although they had been advised that there were no notes, it became clear once the report had been disclosed that opinions had been added to the report over a year after the assessment had been completed. The respondent denied that any opinions had been added; however, they submitted that the assessment company would require an order from the Tribunal to obtain such a draft.
3I declined to order the production of any further documents at such a late stage in the proceedings, to prevent delaying the hearing. Further, I pointed out that the applicant would be free to question Dr. Eisen on this point during his testimony, since he would be called as a witness, and depending on his testimony, the parties could make submissions with respect to the weight, if any, the Tribunal should give to the report.
4The respondent brought an oral request for an adjournment at the beginning of the hearing, submitting that it received new records on August 18, 2023, indicating that the applicant was involved in a previous accident. Although there was a note in one of the previously served documents that mentioned this accident, the respondent did not have the family doctor’s records and it wanted to request the accident benefits file. The applicant denied that new information was served on the respondent and advised that all of the documents mentioned by the respondent had previously been served on February 22, 2023.
5Rule 16.2 of the Licence Appeal Tribunal Rules of sets out that oral requests for adjournment will only be allowed in compelling circumstances where the party did not and could not have known of the circumstances giving rise to the adjournment request prior to the event. The respondent had some knowledge of the previous accident since it was mentioned in records that had been served previously. I am not satisfied that the respondent did not and could not have known of the previous accident such that an oral adjournment was required or that the respondent has shown that there are compelling circumstances which would justify the oral adjournment request. I therefore am denying the respondent's request.
ISSUES
6The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to an attendant care benefit in the amount of $2,816.64 per month for the period January 9, 2012 to date and ongoing?
iii. Is the applicant entitled to $4,577.26 for occupational therapy services, proposed by Innovative Case Management in a treatment plan/OCF-18 (“plan”) submitted on August 17, 2020 and denied August 21, 2020?
iv. Is the applicant entitled to $2,300.00 for an occupational therapy assessment, proposed by Innovative Case Management in a plan submitted on July 10, 2020 and denied on July 24, 2020?
v. Is the applicant entitled to $5,201.49 for psychotherapy services, proposed by Dr. Jeremy Frank in a plan submitted on January 13, 2021 and denied on January 28, 2021?
vi. Is the applicant entitled to $1,993.88 for assistive devices including an automatic stove shut off, proposed by Innovative Case Management in a plan submitted on April 6, 2021 and denied on April 20, 2021?
vii. Is the applicant entitled to $2,200.00 for a SPECT Scan, proposed by IScope Concussion & Pain Clinics in a plan submitted on November 9, 2020 and denied on November 23, 2019?
viii. Is the applicant entitled to $2,033.00 for an EEG proposed by IScope Concussion & Pain Clinics in a plan submitted on November 5, 2020 and denied on November 19, 2020?
ix. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by IScope Concussion & Pain Clinics in a plan submitted on November 5, 2020 and denied on November 19, 2020?
x. Is the applicant entitled to $636.78 for assistive devices, proposed by Innovative Case Management in a plan submitted on October 15, 2020 and denied on October 30, 2020?
xi. Is the applicant entitled to $1,942.53 for a social work assessment, proposed by Social Work Consulting Group in a plan submitted on January 6, 2021 and denied on January 20, 2021?
xii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xiii. Is the applicant entitled to interest on any overdue payment of benefits?
7During the hearing, the parties resolved issues iii, iv, vi, vii, viii, ix, x, and xi.
RESULT
8The applicant sustained a catastrophic impairment as defined by the Schedule.
9The applicant is entitled to an attendant care benefit as of the date of this order.
10The applicant is entitled to $5,201.49 for psychotherapy services.
11The respondent is not liable to pay an award under s. 10 of O. Reg. 664.
12The applicant is entitled to interest on any overdue payment of benefits.
ANALYSIS
The applicant has sustained a catastrophic impairment as defined by the Schedule
13I find that the applicant is catastrophically impaired because she has demonstrated that she sustained at least one marked impairment sufficient to meet the requirements of catastrophic impairment under Criterion 8 of the Schedule.
14The applicant bears the onus to prove on a balance of probabilities that she is catastrophically impaired. In reference to Criterion 8, since the accident occurred prior to June 1, 2016, she must prove that, as a result of the accident, she has a Marked or Class 4 impairment in at least one of the four domains as outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”) due to a mental or behavioral disorder. In Chapter 14 of the Guides, impairments are classified according to how much they impair a person’s useful functioning in the following four areas of function: activities of daily living, social functioning, concentration, persistence and pace and adaptation. There are four levels of impairment within each domain: no impairment, mild impairment, moderate impairment, marked impairment and extreme impairment.
15Since the applicant based their argument on the areas of adaptation and concentration, persistence and pace, I will only deal with these two domains.
16I find that based on the testimony of the applicant, that of her mother, and the medical evidence presented, the applicant meets the test as set out in the Schedule.
The applicant suffered a Marked impairment in the area of adaptation as a result of the accident
17I find that the applicant suffered a Marked impairment in the area of adaptation as a result of the accident.
18According to the Guides, the factors to consider under this domain are deterioration or decompensation in work or work like settings, i.e. repeated failure to adapt to stressful circumstances. In such circumstances, the individual may withdraw from the situation, experience exacerbation of symptoms, or decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks. Common stressors include attendance, making decisions, scheduling, completing tasks and interacting with others.
19Dr. Shahzad Shahmalak, psychiatrist, assessed the applicant on September 6, 2021 and prepared a Catastrophic Impairment Determination Psychiatry Report dated October 20, 2021. He reviewed the applicant’s medical documentation and interviewed the applicant. He conducted some clinician rated testing to assess the applicant’s level of depression and found that the applicant was moderately to severely depressed. He indicated that this correlated with the applicant’s self-reporting, and that he did not find her to be malingering. During his assessment, Dr. Shahmalak found the applicant to be quite genuine in her presentation, that she responded in a spontaneous manner and that there were no signs of symptom magnification.
20Dr. Shahmalak diagnosed the applicant with the following disorders:
i. Somatic Symptom Disorder with predominant pain, persistent for more than 6 months;
ii. Specific Phobia, Situational Type (Public transport); and
iii. Major Depressive Disorder, moderate to severe.
21He found that since the subject collision, the applicant experiences persistent preoccupation with physical symptoms which has led to depressive and anxiety symptoms. The combination of physical symptom preoccupation, as well as depressive and anxiety symptoms have compounded the applicant’s psychiatric impairments. Dr. Shahmalak concluded that the accident contributed to causing the psychiatric impairments that the applicant is currently faced with.
22Dr. Shahmalak found that when considering the impact of the applicant’s physical symptoms and stress on her emotional state, she is impaired in the following abilities:
i. Maintaining work-appropriate orientation to person, place and activity;
ii. Performing activities within a schedule, maintaining regular attendance, and being punctual within customary tolerances;
iii. Sustaining an ordinary routine without special supervision;
iv. Use of judgment in making simple decisions;
v. Accepting instructions and responding appropriately to feedback;
vi. Working with accuracy;
vii. Maintaining appropriate sustained attention or concentration on a reasonable continuous basis;
viii. Coping with time pressures and stressors;
ix. Performing activity in coordination with or proximity to others without being distracted by them; and
x. Maintaining appropriate behaviours, communication, and emotional control.
23Dr. Shahmalak was of the opinion that, from a psychiatric perspective, the applicant has a Marked impairment in the area of adaptation. I accept Dr. Shahmalak’s opinion. His assessment was comprehensive and thorough. He made findings which were consistent both internally and when compared with the findings of other treatment providers who assessed the applicant.
24Based on the applicant’s and the mother’s testimony it is apparent that, since the accident, the applicant deals with the following issues on a regular basis, which support a finding that she suffered a Marked impairment in the area of adaptation:
i. She has only ever worked at one paid job, for less than two years, during which she constantly made mistakes and was accommodated with frequent breaks as required. After she completed working, she was unable to do anything and had to rest;
ii. She suffers from depression and severe anxiety, including social anxiety and anxiety when taking the bus;
iii. She went through a period of time when she exhibited cutting behavior and suicidal ideation;
iv. She has suffered memory loss which has affected her ability to do simple tasks such as taking medication, remembering words, appointments and people, focusing and concentrating;
v. Her social anxiety led to poor attendance at school and she had to attend an alternative school with fewer students, more teachers and more leniency;
vi. She has managed attending an online social worker course with leniency to allow for late assignments. She participated by sharing her own experiences rather than co-facilitating. She testified that she will not be able to pursue a career with this as she cannot remember the materials and her anxiety is getting worse.
25Nicole Abballe, Occupational Therapist, has been treating the applicant since 2021. She testified that the applicant has a lot of cognitive concerns, such as:
i. time management;
ii. late and missing appointments;
iii. inability to manage meals and responsibilities for the children;
iv. very distracted;
v. gets very overwhelmed;
vi. impaired ability to make quick rational decisions; and
vii. loses concentration and attention.
26I accept Ms. Abballe’s evidence, as she has a history with the applicant and her findings are consistent with other treatment providers.
27Zainab Bukhair, Occupational Therapist, assessed the applicant on August 24 and 25, 2021. Based on her assessment, she was of the opinion, and I find, that the applicant would not be able to engage in any type of paid work. I accept her opinion as I note that her findings are generally consistent with other treatment providers.
28Ms. Abballe testified, and I accept, that since communication with others, making decisions, being on time and completing tasks are required skills, given the applicant’s cognitive issues, returning to a workplace was not a realistic goal for her. Anne Sheehan, Social Worker, prepared an Insurer’s Examination Social Worker Assessment dated May 31, 2022. She was of the opinion that the applicant did not represent as capable of resuming work at the present time. Dr. Shahmalak testified that he was in agreement with this.
29Dr. Eisen, in his Insurer’s Examination Catastrophic Determination Psychiatry Assessment dated June 16, 2022, assesses the applicant with a Class 1 (absent) impairment in adaptation as a result of the accident. I do not accept Dr. Eisen’s opinion. He outlines the history and medical evidence and sets out his conclusions, however he provides no reasons or analysis in coming to his conclusions.
30On a consideration of the evidence, and for the reasons set out above, I find that the applicant has suffered a Marked impairment in the area of adaptation as a result of the accident.
The applicant suffered a Marked impairment in concentration, persistence and pace as a result of the accident
31I find that the evidence demonstrates that the applicant has suffered a Marked impairment in concentration, persistence and pace as a result of the accident.
32The Guides specify that the factors to consider under this domain are concentration, persistence and pace needed to perform many activities of daily living, including task completion. Task completion refers to the ability to sustain focused attention long enough to complete tasks commonly found in activities of daily living or at work. In order to consider strengths and weaknesses in mental concentration, there is a consideration of frequency of errors, the time it takes to complete the task and the extent to which assistance is required to complete the task.
33Dr. Manu Mehdiratta, Neurologist, assessed the applicant on May 4, 2021 and prepared a Neurology Assessment Report dated October 12, 2021. He diagnosed the applicant with a mild traumatic brain injury and found that based on the symptoms reported in her medical records, the accident played a significant role in his diagnosis. He did not see any history from a neurological perspective that could have contributed to her symptoms. In Dr. Mehdiratta’s opinion, but for the accident, the applicant would not have sustained this impairment. Further, he opined that the injuries sustained in the accident have had a profound impact on all aspects of her life and activities and have resulted in a complete inability to carry on a normal life. I accept Dr. Mehdiratta’s evidence as I found that his assessment was comprehensive, thorough and consistent with those of other assessors.
34Dr. Shahmalak indicated that the applicant struggles with a continuum of difficulties cognitively starting from school, work, struggles with her memory, and doing chores around the house. She is unable to prepare simple recipes without assistance. She is only able to function with support around her. This is consistent with the testimony of the applicant and that of her mother Tanya MacMillan’s.
35Dr. Shahmalak concluded that considering the impact of the applicant’s physical symptoms and stress on her emotional state, she is impaired in the following abilities:
i. Maintaining attention and concentration for extended periods;
ii. Understanding, remembering, and carrying out instructions;
iii. Concentrating during distractions;
iv. Planning, initiating, and organizing task completion;
v. Performing at a consistent pace without an unreasonable number / duration of rest periods; and
vi. Multi-tasking.
36Dr. Shahmalak was of the opinion that, from a psychiatric perspective, the applicant has a Marked impairment in the area of concentration, persistence and pace.
37I accept Dr. Shahmalak’s opinion. His assessment was comprehensive and thorough. He made findings which were consistent both internally and when compared with the findings of other treatment providers who assessed the applicant.
38The applicant testified that she forgets words, people, directions, taking her medication, attending appointments, assignments at school, and she has difficulty focusing and concentrating. This causes her depression, anxiety, and makes her feel worthless. She is only able to drive alone for short distances. She testified that when she worked at Wendy’s she constantly made mistakes with such things as preparing food and giving out wrong orders. She requires assistance from her mother and her spouse with all of her household tasks and child care. I accept the applicant’s testimony. Although there were some inconsistencies with respect to her grades at school prior to and after the accident, I take into account that the applicant was 11 years old at the time. Her testimony was generally consistent, straight-forward, consistent with the medical evidence, and stood up to cross-examination with respect to her impairments.
39The applicant’s occupational therapist prepared checklists with pictures for the applicant to assist her to remember to complete tasks, i.e. diaper change, bath time, laundry, baby grocery, bedtime. The applicant has a colour coded calendar in her kitchen to provide her with cues to remember tasks. The checklists were submitted into evidence and the applicant testified that she used them.
40Dr. Angela Chan, the applicant’s family doctor, testified. She indicated that since the accident, the applicant has reported having headaches, light sensitivity, anxiety, depression, leg spasms, difficulty focusing, difficulties remembering and maintaining appointments, and difficulties with daily management. I accept Dr. Chan’s testimony as it was presented in a straightforward and genuine manner and corroborating medical records were presented.
41In her assessment of the applicant, Ms. Bukair noted that the applicant’s physical and cognitive impairments played a salient role in terms of her ability to concentrate, pace and persist. She struggled with her memory and she required repeated breaks even with moderately physical tasks such as vacuuming or picking up items on the floor. With cognitively demanding tasks, the applicant was distracted and had reduced focus. Ms. Bukair advised that the applicant was able to complete isolated tasks with generous accommodations, but if she had to complete tasks in sequence and within a set time frame, she would likely struggle considerably and become overwhelmed. I accept her opinion as I note that her findings are generally consistent with other treatment providers.
42The respondent asked that the Tribunal draw an adverse inference from the lack of social worker records and the employment file from Wendy’s. The applicant made several requests for these records and did not receive a response. In these circumstances I find that the applicant made best efforts to obtain these documents and I will not make an adverse finding in this regard.
43Dr. Eisen lists reasons why he is unable to attribute causation to the accident, including the time that elapsed since the accident, the impact of the applicant’s family life and economic situation on her as well a sexual assault that occurred prior to the accident. There is no medical documentation to substantiate what effect these things may have had on the applicant. I find that there is insufficient evidence to draw any conclusions based on these factors. Dr. Eisen also lists the absence of certain objective information (academic, social and emotional functioning) prior to the accident, which I find is not probative. Further, Dr. Eisen places importance on an occupational therapy assessment conducted one day after the accident which did not indicate any cognitive or behavioural problems, which he suggests indicates that the head injury had minimal impact. Dr. Eisen does not consider the symptoms suffered by the applicant since that time, which could have been attributed to the brain injury. I prefer the evidence of Dr. Mehdiratta in this regard, who based his diagnosis of a mild traumatic brain injury based on the symptoms reported in the applicant’s medical records since the accident. As a whole, I find that the factors that Dr. Eisen considers in coming to the conclusion that the applicant’s injuries are not a cause of the accident are insufficient to draw that conclusion.
44Dr. Eisen assesses the applicant with a Class 1 (absent) impairment in concentration, persistence and pace as a result of the accident. I do not accept Dr. Eisen’s opinion. He outlines the history and medical evidence and sets out his conclusions, however he provides no reasons or analysis in coming to his conclusions that there was a Class 1 impairment.
45On a consideration of the evidence, and for the reasons set out above, I find that the applicant has suffered a Marked impairment in the area of concentration, persistence and pace as a result of the accident.
The applicant is entitled to an attendant care benefit
46The parties agreed that, should the Tribunal make a finding that the applicant is catastrophically impaired, the applicant is entitled to an attendant care benefit from the date of this decision onwards. The applicant concedes that she has not incurred attendant care within the meaning of section 3 of the Schedule to the date of this order. The applicant’s entitlement is subject to any assessment that is in accordance with the Insurance Act and the Schedule. Since I have found that the applicant is catastrophically impaired, I am making the order as agreed to between the parties.
The applicant is entitled to the treatment plan for psychotherapy services
47The applicant bears the onus of proving entitlement to the proposed treatment by demonstrating the benefits are reasonable and necessary on a balance of probabilities. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs to achieve them are reasonable.
48Dr. Douglas Saunders, Psychologist, prepared an Insurer’s Examination Psychological Assessment dated April 26, 2021. He concluded that from a psychological perspective, there is no evidence of a diagnosis solely, directly, and causally related to the accident. He does not address whether “but for” the accident, the applicant would have sustained psychological impairments. He diagnosed the applicant with Schizoaffective Disorder, Conversion Disorder, Personality Disorder and Major Depressive Disorder and indicates that these are prevailing personality characteristics that are unrelated to the accident. As such, he found that the treatment plan for psychotherapy services was not reasonable and necessary. Dr. Saunders does not provide an analysis to explain his findings. Dr. Shahmalak testified that he reviewed Dr. Saunders’ report and could not find any evidence of to substantiate the diagnoses of Schizoaffective Disorder or Conversion Disorder.
49Dr. Jeremy Frank, Psychologist, prepared a Psychological Assessment for Treatment Planning Report dated January 10, 2021. After conducting testing, he diagnosed the applicant with Adjustment Disorder, Posttraumatic Stress Disorder and Somatoform Pain Disorder. He recommended cognitive behavioural psychotherapy to focus on reducing depressive symptoms, worry and anxiety, vehicle and pedestrian anxiety, post-traumatic stress symptomology and pain coping difficulties.
50The applicant’s family doctor, Dr. Chan, as well as Liz Waisberg, Social Worker also recommend psychotherapy to address the applicant’s psychological issues.
51Dr. Shahmalak’s opinion was that, given the applicant’s psychological impairments, as outlined above, psychological treatment would be reasonable and necessary. He was of the view that the accident was a major event and that it played a role in his diagnosis and prognosis. Dr. Shahmalak was of the view that, psychiatrically speaking, the applicant suffers a complete inability to carry on a normal life as she sustained impairments that continuously prevent her from engaging in substantially all of the activities in which she ordinarily engaged in before the accident.
52Dr. Shahmalak recommended Cognitive Behavioural Therapy to help provide the applicant with adaptive coping strategies and re-structure the cognitive distortions and negative thinking that have surfaced due to or as a consequence of depression, anxiety and pain.
53The respondent acknowledged that should the Tribunal conclude that the applicant has a marked impairment due to a mental behavioural disorder, then the treatment plan would likely be reasonable and necessary.
54Taking all of the evidence into consideration, I find that the treatment plan for psychotherapy services is reasonable and necessary.
Award
55The applicant sought an award under s. 10 of O. Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
56It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
57The respondent based its denial of the treatment plan on an IE assessment indicating that it was not reasonable and necessary. I do not find that its actions rose to the level of excessive, imprudent, stubborn, inflexible, unyielding or immoderate. In these circumstances, I see no basis for making an order for an award.
Interest
58Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies to any overdue benefits in relation to the treatment plan for psychotherapy services.
ORDER
59I order as follows:
i. The applicant sustained a catastrophic impairment as defined by the Schedule.
ii. The applicant is entitled to an attendant care benefit as of the date of this order.
iii. The applicant entitled to $5,201.49 for psychotherapy services.
iv. The respondent is not liable to pay an award under s. 10 of O. Reg. 664.
v. The applicant is entitled to interest on any overdue payment of benefits.
Released: October 4, 2023
Laura Goulet
Adjudicator