Licence Appeal Tribunal File Number: 21-006832/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:
S. B.
Applicant
and
Certas Home and Auto Insurance Company
Respondent
2^nd^ AMENDED DECISION
ADJUDICATOR:
Lyndra Griffith
APPEARANCES:
For the Applicant:
S.B., Applicant
Frank McNally, Counsel
Paolo D’Asti, Counsel
For the Respondent:
Marnie Bielenda, Adjuster
Anne Fyfe, Counsel
Paolo D’Asti, Counsel
Rachel Mester, Counsel
Closed Captioning:
Kim Myers
Court Reporter:
Dan Carle
HEARD: by Videoconference:
November 7-10 and 14 -16, 2022
OVERVIEW
1S.B. (the “applicant”) was involved in an automobile accident on November 12, 2010, wherein she sustained physical and psychological injuries. She sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”) from Certas Home and Auto Insurance Company (the “respondent”).
2On June 16, 2020, the applicant submitted an OCF-19, Application for a Determination of Catastrophic Impairment (“CAT”). Following its s. 44 assessments, the respondent denied the applicant’s application for CAT. The applicant argues that she is catastrophically impaired due to a Class 4 (marked) impairment due to a mental or behavioural disorder as defined in Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment 4^th^ Edition, 1993 (the “Guides”). In denying the applicant certain benefits, the respondent has determined that the applicant’s injuries are not catastrophic in nature as they do not fit the definition of a Class 4 impairment according to the Guides. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
3The following issue is agreed to be in dispute:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
result
4I find that the applicant has met her onus of proving that she has sustained at least one Class 4 impairment due to a mental or behavioural disorder according to the criteria in the Guides. Therefore, she meets the definition of catastrophic impairment as defined in the Schedule.
PROCEDURAL ISSUES
Motion To Exclude Evidence
5The respondent filed a Notice of Motion on October 31, 2022 to exclude Dr. Kelly Benn as a witness, as well as her two expert reports. The respondent submitted that these reports were conducted for the purpose of the applicant’s legal action in the Ontario Superior Court of Justice. The respondent submitted that these reports were conducted for the purpose of litigation and were not subject to the $2,000.00 limit for assessments under s. 25 of the Schedule.
6The respondent further submitted that it would be unjust to allow Dr. Benn’s reports and testimony into evidence at the hearing as the respondent is barred from producing responding reports to support its position. The respondent requested that the Tribunal use its discretion to exclude the evidence of Dr. Benn, in order to ensure a fair and proportional hearing, pursuant to Rule 3.1(a) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (“the Rules”).
7The applicant submitted that it would be unfair to not allow Dr. Benn to testify as her evidence is relevant to address the applicant’s diagnoses, and function. The applicant submits that Dr. Benn does not opine on CAT and therefore it would go to weight. The applicant submitted that even if the report were created to support a tort action, this is not unusual. The applicant submitted that the respondent did not argue that the evidence was irrelevant and therefore it should go to weight.
8I was not persuaded that the respondent would be prejudiced if Dr. Benn is allowed to testify and admit her two reports into evidence. Dr. Benn is being tendered to speak to the applicant’s diagnoses and functioning at the time the reports were completed, and she is not providing any expert evidence as it pertains to CAT. Pursuant to s. 15(1) of the Statutory Powers Procedure Act RSO 1990, c S.22. a tribunal may admit as evidence at a hearing, any oral testimony; and any document or other thing, relevant to the subject-matter of the proceeding and may act on such evidence. Furthermore while s. 25 of the Schedule states that an insurer shall not pay more than a total of $2,000.00 for an assessment, it does not limit an applicant from obtaining a report in excess of this amount and relying on it. I advised the parties that they may make submissions as to the weight I should give Dr. Benn’s evidence in their closing submissions.
Order limiting access to adjudicative records and anonymization
9The applicant is seeking an order limiting public access to the Tribunal’s adjudicative records, including the transcripts and document briefs (exhibits), and an order anonymizing the applicant’s name and other identity markers in the Tribunal’s decision.
10The Tribunal’s adjudicative records are generally open to the public, in accordance with the open court principle. The Tribunal’s decisions also normally include the names of the parties to the proceeding, in accordance with this principle: see Toronto Star v. AG Ontario, 2018 ONSC 2586 (Toronto Star). For proceedings commenced on or after June 30, 2019, s. 2(1) of the Tribunal Adjudicative Records Act (“TARA”) also requires that adjudicative records be made available to the public. Adjudicative records include the notice of appeal, the evidence and submissions in the proceeding, the Tribunal’s decision, along with the other documents listed in s. 1(2) of TARA.
11As public access to adjudicative records is protected by s. 2(b) of the Charter of Rights and Freedoms, restrictions on access are exceptional. Pursuant to s. 2(2) of TARA, the Tribunal may order that all or part of an adjudicative record be treated as confidential and not disclosed to the public if the tribunal determines that:
a. matters involving public security may be disclosed; or
b. intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.
12Rule 13.1 of the Rules is consistent with TARA and permits the Tribunal to restrict public access to the adjudicative record on the same grounds.
13The test established by the Supreme Court of Canada for ordering publication bans provides further guidance when considering whether to override the principle that tribunal proceedings should be open to the public: Toronto Star at paras. 89-93; R. v. Mentuck, 2001 SCC 76 at para. 32. The test was recently recast by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25. The Court held that a person seeking to limit the open court presumption must establish that:
(1) court openness poses a serious risk to an important public interest;
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.
14In Sherman Estate the Court recognized that privacy can be an important public interest under the discretionary test where it can be demonstrated that protection of human dignity is at risk. Where one’s dignity is impaired, the impact on a person is no longer theoretical, but can have real consequences on psychological or physical well-being. The justice system suffers when its processes inflict harm such as this, and thus steps must be taken to avoid it: Sherman Estate at para. 72
15Dignity may be undermined where the information reveals something sensitive about the person as an individual, as opposed to generic information that reveals little about who they are as a person. The information sought to be protected must be sufficiently sensitive that it strikes at one’s “biographical core”—it must consist of intimate and personal details about the person, their lifestyle, or their experiences. The Court in Sherman highlighted some examples of information that have been recognized by courts in the past as being sufficiently sensitive, including information about stigmatized work, sexual orientation and subjection to sexual assault or harassment. It also agreed that detailed information about family structure and work history could, in certain cases, constitute sensitive information that requires protection: Sherman Estate at paras. 35, 75-79
16The Court also noted that it will never be sufficient to raise a recognized interest on its own. The person seeking to limit the open court principle must also demonstrate a serious risk to that interest. Moreover, the threshold is high and context-specific—in order to preserve the integrity of the open court principle the public interest in dignity will only be found to be seriously at risk in exceptional cases. Disadvantage, embarrassment, or distress caused by openness will typically be insufficient on their own to interfere with the openness of proceedings: Sherman Estate at paras. 56, 62-63, 79, 84.
17Where information is found to be sufficiently sensitive to strike at one’s “biographical core”, a court must then ask whether a serious risk to the interest is made out in the specific context of that case. In determining this, the court may consider, among other factors: (1) the extent to which the information would be disseminated without a confidentiality order, including a recognition that we live in an electronic age in which information may be easily disseminated; (2) the extent to which the information is already publicly available; and (3) a consideration of both the gravity of the feared harm and its probability of occurring, based on the totality of the circumstances: Sherman Estate at paras. 79-84.
18The applicant relies on the three principles enumerated in Sherman Estate and asks that the Tribunal use its discretion to protect the applicant’s identity. She submits that the benefits of the order outweigh the effects of the public record. She is a member of a professional organization and the hearing exposes serious issues about her mental health. The applicant submits that this is a personal issue between her and the insurer and there is as serious risk that if this decision lists all her mental health issues it may have a serious impact of harm to her to have her sensitive mental health information be part of public record.
19The respondent took no position on this issue.
20I find that this matter contains a significant amount of detailed information about the applicant’s family structure, work and medical history that constitutes sensitive information that requires protection. I find that this information is sufficiently sensitive to strike at the applicant’s “biographical core.” Furthermore, (1) this information will be disseminated and available electronically; (2) the information is not already publicly available; and (3) the gravity of the feared harm and its probability of occurring, based on the totality of the circumstances, is high as the personal matters contained in the record are of such a nature that the interests of the applicant, by avoiding disclosure, outweighs the desirability of adhering to the principle that the record be available to the public
21For the reasons set out above, I order that:
a. The following records will be treated as confidential and will not be disclosed to the public by the Tribunal: the transcript and briefs filed with the Tribunal; and
b. The appellant’s request to anonymize her name and identity markers in the Tribunal’s decision is granted.
ANALYSIS
Background
22The applicant was driving home at night from university, travelling at a rate of 80 k/h, when an oncoming vehicle suddenly veered into her lane. She swerved to the right to avoid a head-on collision, causing the car to spin 360 degrees, landing in a ditch on the side of the road. She struck her head against the interior of the car. An ambulance attended the scene and she was transported to the hospital where she was assessed and treated for injuries which included a laceration to the left eyelid which required suturing. She was discharged home.
23The applicant was diagnosed with whiplash and Post Traumatic Stress Disorder (PTSD). She reported being too scared to drive for one year after the accident. She was previously diagnosed with Major Depressive Disorder (MDD) in February 2008 when she was completing her first university degree. According to the medical records, she was in remission at the time of the accident. Prior to the accident she was working part-time as a receptionist at an eye clinic and going to university full-time, completing her second degree. Following the accident, she took a month off from university and she deferred her midterms. She was able to complete her second degree on time because it was much easier than her previous degree and there was a lot of course overlap. Some of her classes were recorded and her boyfriend at the time was also taking a lot of the same classes, which made things easier for her.
24The applicant applied and was accepted to law school in 2012 school under the Access Program due to her hardships. She started seeing a psychiatrist one month after staring law school. While in law school, she received accommodations such as a note taker, extra time between and during exams, a special room to write exams, opting out of presentations and paper extensions. She also worked with an occupational therapist (OT) that helped with assistive devices, sleep hygiene and tracking her course attendance. Her OT helped her to complete the documentation for articling and bar examinations. The applicant stated that she completed 100 applications for an articling position but did not get hired as an articling student and completed the law practice program instead. She wrote the bar exam with accommodations, and she was able to write each exam over two days, with unlimited breaks unlike her peers. She also had months in between to write her exams.
25The applicant did not work for six months after she passed the bar exam. She was eventually hired at a small family law firm in January 2017. She was given the ability to work remotely and she moved in with her mom because she needed her support. She eventually moved out on her own in 2019 but ultimately wound down her law practice in March 2020 and she claimed it was due to her accident-related injuries.
26The applicant’s treating clinical psychotherapist since March 2008, Yaffa Greenbaum, opined in a report dated August 15, 2016, that “Six years after the accident, the applicant continues to experience a myriad of symptoms at a distressing level. In fact, the applicant's symptoms at this time are more prevalent than they were in July 2011. She has a high degree of anxiety and multiple symptoms that are disabling to her quality of life, both at home (at present) and as she will attempt to initiate applications to begin work.” Dr. Greenbaum further stated that “she has had academic success, and yet her anxiety and feelings of inadequacy and vulnerability feel insurmountable to her on a continuous basis”. Dr. Greenbaum also opined that “There is no question that the applicant's overall level of functioning is decreased due to her ongoing struggle with PTSD.”
27The applicant was diagnosed with chronic pain in 2017 which has been attributed to the accident. The applicant is currently taking Pristiq and Wellbutrin to manage her mood and Vivance to manage her attention deficit hyperactivity disorder (ADHD).
Causation
28The applicant submits that the law on causation is the but for test as articulated in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181 and Sabadash v. State Farm et al., 2019 ONSC 1121. She argues that but for the accident she would not have the symptoms that she has and the diagnoses that she has. In the alternative, the applicant relies on Thiruchelvan v. RBC, 2022 ONSC 554 to argue that a pre-existing psychiatric impairment materially contributed to her symptoms or was exacerbated by the accident after the accident.
29The respondent argues that the proper test is the but for test and that the material contribution test is rarely used.
30I agree with respondent that the that the but for test is the test to be used in an accident benefits context and the applicant’s position does not properly articulate the material contribution test.
31It is undisputed that both s. 25 and s. 44 CAT assessors, psychiatrist Dr. Ken Suddaby, and psychiatrist Dr. Kehinde Aladetoyinbo, make diagnoses of MDD, recurrent, with Anxious Distress and PTSD.
32Numerous medical professionals opined that the applicant’s psychological diagnoses were caused by the accident. including: psychologist Dr. Maureen O’Connell: and psychiatrists Dr. H. Chasse and Dr. Suddaby. Dr. Aladetoyinbo agreed the PTSD was related to the accident.
33More specifically, Dr. Suddaby opined that the subject accident continues to materially contribute to the applicant’s current psychiatric illness, symptoms, and impairment. But for the subject accident, the applicant would not have developed PTSD. He opined that the accident and resulting pain triggered a relapse of her MDD shortly after the accident, and the accident directly caused that relapse. He opined that her PTSD is a direct and ongoing result of the accident.
34The respondent submits that the applicant’s injuries were not caused by the accident.
35I am satisfied that there is sufficient medical evidence to conclude that on a balance of probabilities, but for the accident, the applicant would not have suffered a relapse of her MDD and PTSD.
Catastrophic Impairment
36The applicant submits that she has a mental or behavioural impairment that qualifies her for CAT. The definition in the previous version of the Schedule, in effect on the date of the subject accident (November 12, 2010), applies to this dispute. The applicable CAT definition is as follows:
(2) (f) …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) or class 5 impairment (extreme impairment) due to mental or behavioural disorder. O. Reg. 34/10, s. 3(2)(f)
37The applicant bears the onus to prove on a balance of probabilities that she is CAT. She argues that she suffers from a Class 4 impairment in at least one of the following areas of functioning described on page 301 in Chapter 14 of the Guides and noted in the table 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 |
|---|---|---|---|---|---|
| 1. Activities of Daily Living 2. Social Functioning 3. Concentration, Pace, and Persistence 4. Adaptation (Deterioration and/or Decompensation in Work and Work-Like Settings) |
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 |
38The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one, based on the above areas of functioning and their classifications.
The applicant meets the definition of CAT
39I find that the applicant is CAT as defined in the Schedule. The applicant has presented sufficient evidence to prove that she is suffering from a Class 4 impairment in at least one of the four areas of functioning, being Activities of Daily Living (ADL), as described in the Guides. This is sufficient for a CAT designation. Therefore, the remaining areas of functioning will not be specifically addressed in detail.
40Dr. Suddaby assessed the applicant on April 30, 2020, and concluded in a report dated June 23, 2020, that she met the threshold for CAT under Criterion 8 of the Schedule because she suffered a marked level of impairment in all four aspects of functioning. He provided addendum reports on May 7, 2021, September 13, 2022, and October 20, 2022, confirming the same.
41On the other hand, Dr. Aladetoyinbo, concluded as part of a multidisciplinary s. 44 report dated March 29, 2021 that the applicant had accident-caused psychiatric diagnoses and impairment. However, he opined that she had a moderate level of impairment in all four areas of functioning, and therefore did not meet the threshold for CAT under Criterion 8 of the Schedule.
Class 4 Marked Impairment in ADL
42I find that the applicant’s testimony and documentation support a finding that she meets the definition of a Class 4 impairment in the ADL area. The Guides state at page 294:
Activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities…In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness and sustainability. It is necessary to define the extent to which the individual is capable or initiating and participating in these activities independent of supervision or direction. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
Applicant’s position
43The applicant relies on Dr. Suddaby’s report dated June 23, 2020 (and subsequent addendums) where he opined that the applicant has a Class 4, Marked Impairment in this area of functioning. He found that her sleep-wake cycle had shifted, as she sleeps during the daytime. Due to fatigue, she takes naps resulting in at least 12 hours of sleep, representing notable hypersomnolence interfering with the capacity to participate in ADL.
44He opined that the applicant does almost no food preparation and often orders in food, despite challenges with obesity and ongoing weight gain. She does laundry infrequently and only cleans the dishes once they start to smell. She rarely cleans the house. She does not participate in any recreational or leisure activities. She is not seeking out social interaction with others, and in fact, she avoids such interactions due to her mood and PTSD symptoms. She is unable to seek out or participate in romantic relationships/sexual functioning since 2016. She only rarely sees her mother, and only infrequently interacted with a long-term close friend, who was pregnant at the time.
45Dr. Suddaby opined that the accident occurred at a young developmental stage, in her early 20s, and therefore at a formative stage with respect to her personality, social, romantic, and career development. He opined that the accident has interfered with her capacity for normal development, including her career, and particularly the development of normal romantic relationships.
46Dr. Sudabby testified that it is possible for someone who is suffering from either a major depressive episode or a persistent depressive disorder to be able to complete full-time undergraduate courses or a full-time professional program such as law school successfully. He further stated that he has seen it many times.
47In her Occupational Therapy assessment dated May 20, 2020, occupational therapist Ms. Anita Petzold reported that the applicant had difficulty dressing; only changing her clothes every three days; showering only twice per week or whenever she must leave her home; a lack of oral hygiene resulting in a number of cavities, the necessity for a root canal, and requiring dental surgery; she has difficulty with complex cognitive tasks associated with financial management; social anxiety; community mobility and fear of travel due to significant anxiety related to driving.
48The applicant’s testimony was consistent with these assessors’ findings, and she presented as a credible witness. She reported that she does not have any hobbies or activities, she has no routine, poor sleep and that she gained 80 lbs since the accident due to lack of physical activity. She described how her weight gain affected her depression, as it affects the way that she feels about herself. She described stretch marks on her arms and shoulders and how her whole body has completely changed which has been a source of shame. She complained of regular headaches since the accident for which she takes over the counter pain medication. The applicant also described how her accident-related injuries have decreased her ability to concentrate for long periods of time and how she uses a GPS to go to her mother’s, as her ability to read or concentrate has been diminished. She stated that she is still hypervigilant while driving and that it is worse as a passenger. She said that she also still experiences nightmares.
Respondent’s position
49The respondent submits that the applicant has not suffered an impairment that qualifies as CAT because she has a high level of functioning, and she has never been able to deal with stress since 2006. It argues she did not receive any accommodation to complete her LSAT and obtained employment after law school. Her Pristiq medication did not increase until COVID-19. She travelled internationally for 2 to 4 weeks since her accident and the mere fact that she travelled cannot be minimized. The respondent submits that she minimized her contact with peers in law school, implying that the applicant was more social than she lets on, and therefore she is not believable when it comes to her limitations. The respondent submits that the applicant diminished the fact that she has major accomplishments that should not be ignored and that it is logical to conclude that other factors could have contributed to her CAT application that are not related to the accident. The respondent submits that she was able to attend the 7-day hearing during usual business hours and her claims are not supported and are not credible.
50The respondent relies on Dr. Aladetoyinbo’s report dated March 29, 2020 (and subsequent addendums) where he opined that the applicant has features consistent with a Class 3 impairment in this domain. To support his conclusions, he noted that she independently attends to her personal hygiene, grooming and dressing and she was neatly dressed and well groomed during her interview. He noted that her dressing was appropriate for the weather and that there was no evidence of self-neglect. He noted that she independently drives her automobile. He noted that she has no difficulties with urinary or fecal incontinence or using a toilet. She attends her scheduled appointments and has no difficulties hearing, speaking, reading, and writing. He notes that she independently takes her prescribed medications and manages her finances.
51Dr. Aladetoyinbo also notes that “from a psycho-social perspective the history of the divorce of her parents in her childhood is a vital consideration regarding potential predisposing factors related to the currently observed symptom profile”. It was not entirely clear to me what Dr. Aladetoyinbo meant though I suspect he is suggesting the applicant’s parent’s divorce predisposed her to experiencing depression in her life.
52Occupational Therapist Janelle MacKinnon completed a Catastrophic Impairment Determination Independent Occupational Therapy Situational Evaluation on December 15, 2020. Ms. MacKinnon noted that the applicant reports insomnia when her level of anxiety is elevated. The description of her routine reveals that the applicant lacks motivation and may not perform her self-care tasks regularly. For instance, she may stay in her sleepwear and will not shower if she does not have to go out of the house. She does not follow a specific meal schedule due to her variable sleep pattern. She orders take out up to three times per week. Low interest and motivation in cooking negatively influence her eating habits. She reports difficulty in planning her meals and buying what she needs. She reports that she often deals with expired food in her refrigerator and has to throw it away. She sometimes forgets a load of clothes in her washer or dryer. With respect to her financial management, she reports she may occasionally miss a deadline for her payments, even if she puts an alert on her telephone.
53Ms. MacKinnon summarized that the applicant presents with a lack of regularity with some aspects of her basic and instrumental ADLs (wash, dress, groom, eat, sleep meal preparation, cleaning, laundry). She opined that a combination of low energy, decreased motivation and interest and chronic pain may negatively impact functional engagement in her daily activities. Further, that her social life, education/career and leisure also have been negatively impacted by the subject accident. She deferred whether the applicant sustained an impairment pursuant to the Schedule to the appropriate health discipline.
54Ms. Mackinnon testified that the applicant was genuine, that she has no reason to doubt what she told her, and that her complaints, as described above, are consistent problems since the accident based on the records. She was not aware that the applicant made no new friends since the accident.
Analysis
55I prefer Dr. Suddaby’s report and addendum reports and place little weight on Dr. Aladetoyinbo’s report and addendum reports, as I do not find them to be persuasive. I find Dr. Aladetoyinbo did not comment on how the applicant’s personal care varies significantly depending on her motivation, which I considered to be an important factor. For example, there was evidence that if she does not need to leave the house, she may stay in her sleepwear and will not shower, which in my view is evidence that her functioning in this area was impaired. Further, where the applicant told Dr. Aladetoyinbo that there is no consistency in her day, that she showers every couple of days and that she does not do her laundry very often, I find this to be evidence of an impairment in her ability to complete routine hygiene on a regular basis. However, I assign limited weight to Dr. Aladetoyinbo’s report because he does not comment on this or provide any analysis about this level of reduced functioning, which is consistent in the medical records.
56In addition, Dr. Aladetoyinbo did not comment on how the applicant reports difficulty planning her meals, which I find significant because she even told Dr. Aladetoyinbo that her mother cooks and gives her frozen food but there were no further comments or inquiries about this. I find this is evidence supports the applicant’s position that she may have reduced functioning when it comes to cooking for herself on a regular basis. The fact that Dr. Aladetoyinbo did not investigate this further or at least inquire, weakens his credibility, as one would expect him to complete a more thorough review of the applicant and available documentation.
57Dr. Aladetoyinbo also notes that “from a psycho-social perspective the history of the divorce of her parents in her childhood is a vital consideration regarding potential predisposing factors related to the currently observed symptom profile”. It was not entirely clear what Dr. Aladetoyinbo meant, however, I suspect he is suggesting the applicant’s parent’s divorce predisposed her to experiencing depression in her life.
58Finally, Dr. Aladetoyinbo notes the applicant independently drives her automobile and he did not note any impairment related to vehicle-related anxiety. Despite the applicant claiming that she still experiences a form of vehicular anxiety, he did not consider impairment related to vehicle-related anxiety.
59As a result, I find that Dr. Aladetoyinbo’s report is lacking sufficient detail with respect to his review of the many reports and medical documentation that were available to him. He did not conduct a detailed history with respect to the applicant’s symptoms, treatment, and functioning in the years following the accident, which the s. 25 reports conduct. He also seemed to discount some of her symptoms, stating that he attributes her sleep issues to a medication she was prescribed called Vyvanse, as it is a stimulant. He did not document any review of the pattern of prescription of medications over time, nor the outcome of treatment with psychotropic medications I find that Dr. Aladetoyinbo’s conclusions were not persuasive.
60I find that Dr. Aladetoyinbo’s report lacked thoroughness that one would expect form a CAT assessment and the report seemed to be rushed. His assessment of the applicant took 1 hour and 20 minutes and when queried, he said it took him 4 or 5 hours to complete his initial report. This amount of time spent completing this CAT report does not seem proportional to the complexity of the issue in dispute and required to analyse the four areas of functioning. As part of his qualifications, Dr. Aladetoyinbo stated that he attended a 3-day course in Las Vegas in 2016 though the American Board of Independent Medical Examiners that went through all the chapters of the Guides but that it was not specific to psychiatry. He completed an exam at the end of the conference and started conducting medical legal assessments in 2018. He could not recall how many CAT assessments he has completed as he has never counted them. Dr. Aladetoyinbo did not ask the applicant pertinent questions about her work history, accommodations in law school, romantic relationships or her travel history. Given the volume of documents available to him, I am unsure how he formulated his opinions given the time it took him to complete his report. The report itself is not very detailed when it comes to his analysis and some of his conclusions contradict what the applicant told him and what his co-assessor Ms. MacKinnon reported. He made no reference to any pre-accident medical information. He did not refer to any treating notes of her psychologist or occupational therapist.
61I agree with the respondent’s submissions that the applicant’s travel should not be minimized, but it also should not be over-emphasized or held against her. The applicant said that travel exhausted her, and she takes time to recover when she returns from her travels. She said that her friends help her with her travel arrangements. She has not made any new friends since the accident, and it would not be unreasonable for her to visit her older friends who no longer live in the city where she lives. Dr. Aladetoyinbo was not aware that the applicant traveled abroad but he testified that if she is able to complete international travel, he would give her a Class 2 impairment. Without additional context, I am unsure how Dr. Aladetoyinbo was able to make this determination. I find being more social is one of the applicant’s goals towards recovery and her limited travel should not outweigh her lack of involvement in social activities or hobbies during the remainder of the year.
62On this basis, I prefer the medical evidence of the applicant in the multidisciplinary report dated June 23, 2020, which includes reports from Dr. Sudabby and Ms. Petzold. Dr. Suddaby has a Certification in Medicolegal Expertise (CMLE) and a Certification in Catastrophic Impairment Evaluation, Mental Behavioural (C-CAT (MB)) from the Canadian Society of Medical Evaluators. Dr. Suddaby testified that he has been doing CAT assessments for 20 years and has completed over 1,000 CAT reports.
63For the above reasons, I find that the applicant is suffering from a Class 4 or marked impairment in the ADL. Dr. Suddaby conducted a detailed history with respect to the applicant’s symptoms, treatment, and functioning over the 10 years subsequent to the accident, whereas Dr. Aladetoyinbo did not. Dr. Suddaby 20 years of experience conducting CAT assessments lends to his credibility and I placed more weight on his report and addendums. Dr. Suddaby testified that the applicant’s subjective complaints were consistent with the record, and I found her to be credible. The applicant has notable sleep issues resulting in hypersomnolence. She is fatigued, does very little food preparation and has challenges with obesity and ongoing weight gain. She does laundry infrequently and rarely cleans the house. She does not participate in any recreational or leisure activities. She is not seeking out social interaction with others and avoids such interactions due to her low mood and PTSD symptoms. She is unable to seek out or participate in romantic relationships since 2016. All of these factors combined impact with her capacity to participate in ADL and why I find that she is suffering from a Class 4 marked impairment.
The Remaining Domains
64For completeness, I will briefly address the remaining domains. I am satisfied that the applicant is also suffering from a Class 4 impairment in the domains of social functioning, concentration, pace, and persistence and adaptation. As stated above, Dr. Suddaby found that the applicant is suffering a Class 4 impairment in all four domains. I agree with the applicant that the respondent’s CAT Psychiatric assessment was superficial, focussing mainly on the fact that she finished law school to mean that she may have moderate impairments but not a marked impairment. Dr. Aladetoyinbo seems to base his conclusions on his perceptions of law school and the legal profession without anything to support his conclusions. He also was not aware that she received accommodations for law school and the bar exam. In contrast, Dr. Suddaby stated that the applicant was able to complete law school and the bar exam by focussing solely on her studies and that all other activities suffered. He testified that he has seen it many times where someone that is suffering a class 4 impairment is able to complete a professional degree despite their disability.
65Dr. Aladetoyinbo provided no information about the part-time job that the applicant had at the time of the accident. He provided no information on her work as a lawyer and he was not aware of the frequency of her work or if she deteriorated at work. When it comes to social functioning, the applicant reported having very limited social interactions, she did not make any new friends since the accident. When it comes to concentration, pace, and persistence the evidence suggests that the applicant was not able to attend work or participate in work activities on a regular basis, she had trouble with her workday, trouble with decisions and winding down her practice took a long time. With respect to adaptation, Dr. Suddaby stated that the applicant’s inability to manage stress, along with the added burden of pain and PTSD affect her ability to manage stress. In light of the medical record, I find that on a balance of probabilities the applicant is also suffering from a Class 4 impairment in the remaining domains. For these reasons, the applicant has met her burden to demonstrate that she is CAT under the Schedule.
order
66The following records will be treated as confidential and will not be disclosed to the public by the Tribunal: the transcript and briefs filed with the Tribunal; and
The appellant’s request to anonymize her name and identity markers in the Tribunal’s decision is granted.
67The applicant meets the definition of a catastrophic impairment according to the Schedule.
Released: August 25, 2023
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Lyndra Griffith
Adjudicator