Licence Appeal Tribunal File Number: 20-010307/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:
Claudette Gagnon
Applicant
and
Belairdirect
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Claudette Gagnon, Applicant
Tullio A. D’Angela, Counsel
For the Respondent:
Karman Dhuga, Counsel
Observing:
Michael Beauchesne, Member
Clive Forbes, Member
Jan Dymond, Vice-Chair
Dominique Setton, Member
Court Reporters:
Sharon Kemp & Rachel Thompson
HEARD: by Videoconference:
April 25 - 29, 2022
OVERVIEW
1Claudette Gagnon, (“the Applicant”), was involved in an automobile accident on March 31, 2017, and sought benefits from Belairdirect (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”). The Respondent denied the Applicant’s claim that she sustained a catastrophic impairment as defined in section 3 of the Schedule. The Applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.
PRELIMINARY ISSUES
2The Applicant raised a motion at the beginning of the hearing, requesting that I exclude the insurer’s examination, (“IE”), report of Dr. I. Kiss, psychologist, dated July 15, 2020. The Applicant submits that the report should be excluded because Dr. Kiss died in January 2021 and is unable to testify at this hearing. The Applicant submits that this development renders Dr. Kiss’ report to be hearsay and presumptively inadmissible because the Applicant is unable to test the evidence in a cross-examination. She submits that she is prejudiced by this and opposes an adjournment of the hearing because it will further delay her access to justice.
3The Respondent submits that the Applicant’s motion is untimely and is brought forward in an attempt to gain a tactical advantage at the hearing. It highlights that the reports from Dr. D. Kurzman, neuropsychologist, and Dr. T. Getahun, orthopaedic surgeon, will be relied upon at the hearing, despite the authors of the reports not testifying. It submits that the report can be admitted into evidence with the appropriate weight applied. In the alternative, the Respondent suggests the hearing be adjourned to permit it to conduct another IE to enable it to call the author of that report.
4I allowed the Respondent to rely on the report but advised that the weight it holds will reflect the Applicant’s inability to cross-examine the author of the report. Section 15(1) of the Statutory Powers Procedure Act (“SPPA”) permits the Tribunal to admit into evidence any oral testimony and document or other thing relevant to the subject matter of the proceeding and may act on such evidence. The report is not included in the two exceptions provided by section 15(2) of the SPPA: it is not a document that would be inadmissible in a court by reason of any privilege under the law of evidence, nor is it inadmissible by the Insurance Act, Schedule, or other statute.
5During the hearing, the Applicant objected to the inclusion of Dr. Kiss’ report on the grounds that the raw test data was never disclosed, despite the Respondent being ordered to do so. She submits that she is unable to test the scientific authenticity of Dr. Kiss’ report because of his death and inability to have a psychometrist evaluate the validity of the data. In response, the Respondent submitted that it provided all the records and data it received from the assessment vendor and that the issue goes to weight.
6I agreed with the Respondent and included the report. As noted previously, the Tribunal is permitted to include any document relevant to the subject matter. Any issues relating to the inability to test the evidence will go to weight. In any event, Dr. Kiss’s report had virtually no influence on my deliberations for the reasons outlined below.
ISSUE
7The issue in dispute for this hearing is whether the Applicant sustained a catastrophic impairment as a result of the subject accident, pursuant to criterion 8 in section 3.1 of the Schedule.
RESULT
8I find that the Applicant has not demonstrated that she sustained a catastrophic impairment as a result of the subject accident.
BACKGROUND
9The Applicant was the front-seat passenger of a vehicle which spun out of control while travelling on a highway onramp, causing it to roll over on the passenger side and come to a rest upside down. She was taken by ambulance to the hospital where she was examined. Neck x-rays revealed no fractures and normal alignment, and a head CT scan showed no acute hemorrhage or abnormality but showed an area of encephalomalacia in the periventricular white matter of the left temporal lobe of uncertain etiology. The Applicant was released that day with a recommendation for an outpatient MRI and to follow up with her family physician.
10The Applicant met with her family physician, Dr. M. Zalter, a few days later, on April 4, 2017. She complained of nausea, vomiting, a bump on her head, back and leg pain, and an inability to control her blood sugar levels since the accident—a troubling issue for the Applicant considering she is diabetic. Dr. Zalter noted that the brain scan showed no (brain injury) but diagnosed the Applicant with a mild concussion and noted that she would start physiotherapy later that week. The Applicant returned to Dr. Zalter’s office about two weeks later, on April 17, 2017, due to ongoing headaches and “floaters,” which I interpret to mean vision dysfunction. Dr. Zalter noted that recovery will take time and referred her for follow up with her treating neurologist, Dr. J. Silva. The Applicant continued to meet Dr. Zalter on a semi-regular basis following the accident.
11The Applicant met with Dr. Silva following Dr. Zalter’s referral. She previously met with Dr. Silva on an annual basis prior to the accident on account of demyelinating brain lesions and related complications, which I will address below. Dr. Silva produced a consultation report dated May 10, 2017. Dr. Silva noted that the Applicant was recovering “very well” from the symptoms related to demyelinating lesions following treatment with Prednisone but specifically noted that she experienced an exacerbation of symptoms in the context of the subject accident. The report notes that the Applicant experienced headaches, stuttering, unsteadiness, forgetfulness, confusion, and severe musculoskeletal pain in the hips, back, and neck causing her to be emotionally upset and unable to complete her activities of daily living. Dr. Silva’s plan for the Applicant was to increase her prescription for Cymbalta, participate in physical therapy to treat her musculoskeletal pain and improve her range of motion, and to follow up in October for her regularly scheduled annual visit.
12The Applicant returned to Dr. Silva’s office for examination on October 4, 2017. The report notes that the Applicant’s post-infectious focal demyelination was “compounded by the fact that she had a concussion earlier this year that has brought some additional issues, which are slowly improving overall.” Dr. Silva’s examination found that, neurologically, the Applicant was alert and oriented. Dr. Silva observed some stuttering and delay in word retrieval but that the Applicant was, “able to repeat fine and she had no issues with following commands.”
13The Applicant experienced persistent right shoulder pain following the accident, prompting Dr. Zarnet to refer her for an ultrasound. The Applicant and Dr. Zarnet discussed the ultrasound results on November 28, 2017 and the corresponding CNRs note that the Applicant was advised to continue physical therapy and consider surgery if symptoms persisted. Her symptoms persisted and Dr. Zarnet referred her to Dr. B. Ristevski, orthopaedic surgeon, for a consultation on August 10, 2018, and was referred for an MRI on her right shoulder. The Applicant met with Dr. Ristevski to review the MRI and complained of an inability to elevate her arm, lift heavy objects, and push or pull. She also complained of pain during minor twists and turns. The MRI confirmed that the Applicant sustained a partial thickness infraspinatus tendon tear and tiny intrasubstance tear of the supraspinatus on a background of mild tendinosis. Right shoulder surgery was completed on October 30, 2018.
14The Applicant also met with Dr. S. Tenenbaum, psychologist, on July 28, 2018 for an assessment. Dr. Tenenbaum issued a report of the same date which found that the Applicant suffers from a Major Depressive Disorder and Somatic Symptom Disorder as a result of the accident. Dr. Tenenbaum recommended cognitive behavioural therapy to treat the impairments. Dr. Tenenbaum’s report also noted that the Applicant had symptoms indicative of Post-Traumatic Stress Disorder (“PTSD”), as it relates to driving and riding as a passenger in a vehicle, and recommended a driver’s reintegration evaluation to address it.
15The Applicant met Dr. Silva on January 29, 2019 for a regular follow-up appointment. Dr. Silva noted that the Applicant’s post-infectious focal demyelinating condition was responsive to steroids with a substantial positive response. Again, Dr. Silva noted that the Applicant’s “clinical course has been clouded by the presence of a post-traumatic syndrome causing concussion defect as well as psychogenic dysfunction in addition to headaches. She is still struggling with this matter.” Dr. Silva further noted that the Applicant had no new issues from the white matter disease perspective but noted ongoing struggles with cognition, short term memory, concentration span and recall. Dr. Silva recommended that the applicant continue the same medications and advised that she undergo a review of her neuropsychological care with Dr. Unsal to determine “what domains are compromised and possible strategies to help her out.” However, I am unable to locate any record of such a visit with Dr. Unsal after this referral.
16The Applicant met with Dr. Zalter nearly monthly during 2019 and 2020. The Applicant made complaints of vertigo flare-ups during 2020, which she attributed to stopping physiotherapy. The Applicant’s vertigo symptoms persisted, causing her medical team to increase her prescription for Gabapentin in February 2021, following her admission to the hospital emergency department due to increased symptoms. The Applicant’s neck pain continued in 2021 and she was given lidocaine injections by Dr. D. Dellamora, physician, on several occasions in the late summer and fall of 2021.
17By January 20, 2022, Dr. Zalter noted that the Applicant’s pain and brain damage were stable, and her mood was good.
Pre-Accident Medical History
18The Applicant has a medical history that is significant for pre-existing physical health conditions. She has pre-existing diabetes which required medical intervention, high blood pressure, and brain lesions with post-infection demyelination in the left hemisphere. As a result of her pre-existing conditions, the Applicant experienced language issues such as stuttering and difficulty with word finding and was approved for Canada Pension Plan Disability (“CPPD”) in 2014.
19The Applicant met with Dr. Unsal, neuropsychologist, who issued a report dated March 24, 2015, about two years prior to the accident. Dr. Unsal noted that the Applicant had significant improvement in the last year but continued to have visual difficulties, headaches, memory difficulties, and expressive aphasia with frequent stutter, poor sleep and low energy, inconsistent mood, is bothered by noise, and gets numbers mixed up. Dr. Unsal recommended that the Applicant increase physical exercise, resume speech language pathology treatment, engage in a sleep study, and use a day planner to assist with memory issues.
20A few months later, on November 11, 2015, the Applicant met with Dr. Silva due to tension headaches, increased numbness in both hands, and chronic back pain that radiates down her legs. Dr. Silva noted that the Applicant’s post-infectious area of demyelination in the left hemisphere was stable but caused some language issues. Peripheral neuropathy associated with diabetes and perhaps elements of myofascial pain was also noted, as well as sensitivity to noise. With respect to the Applicant’s ongoing headaches, Dr. Silva suspected it was a combination of muscle contraction pain and reactive vascular component, which possibly contributes to her upper and lower extremity discomfort. Dr. Silva prescribed weight loss, prescription pain medication, and splints at night to address the double wrist and elbow pain likely associated with carpal tunnel syndrome.
21Dr. Silva referred the Applicant for imaging and nerve studies, which were reported on January 28, 2016. The conclusion of the nerve studies was that the “conduction velocities were abnormal with lower limit of normal compound motor action potential amplitudes as well as sensory nerve action potential amplitudes” and that the “(f)indings along with clinical presentation of lower limb areflexia and a suggestion of a stocking pattern would be in keeping with length-dependent polyneuropathy with moderate axonal loss likely related to her underlying longstanding diabetes.”
22On October 5, 2016, the Applicant returned to Dr. Silva with complaints of sensitivity to noise, language issues, and headaches. Dr. Silva noted the Applicant’s complaints, that a sleep study indicated she suffers from sleep apnea, and that she claimed that she no longer requires insulin due to her recent weight loss. Dr. Silva’s CNRs highlighted the importance of regulating blood-sugar levels, supported the Applicant’s weight loss efforts and prescribed medication to assist with it as well as Cymbalta.
23On February 16, 2017, the Applicant went to the emergency room at the hospital with complaints of headaches so severe she could not sleep, short-term memory loss, increased body pain, and stuttering problems. The Applicant was diagnosed with chronic headaches and demyelination disease, given pain mediation at the hospital and discharged with a recommendation to follow up with Dr. Silva, which she did, following the subject accident.
Positions of the Parties
24To the Applicant, her pre-existing condition was not static. She was trying to improve her condition following the brain lesions and related sequelae and experienced some improvement of her symptoms. According to the Applicant, the evidence shows that she was improving prior to the accident. She submits that she was increasing her independence with activities of daily living to include doing chores such as laundry and light meal preparation, was off insulin and exercising, and able to stay active thanks to her pain medication. The Applicant submits that her pre-existing condition left her vulnerable to a catastrophic injury. She submits that, in addition to her head injury, she sustained a left shoulder injury or worsening of her left shoulder injury because her shoulder pain symptoms worsened following the accident.
25The Applicant submits that her situation is similar to the Applicant’s case in Rolley v. MacDonell, 2018 ONSC 6517 (“Rolley”). The insured in Rolley had a significant history with pre-existing medical conditions spanning myocardial infarction, restless leg syndrome, fibromyalgia or chronic pain, sarcoidosis and psychiatric treatment for sleep disturbances, fatigue, and memory issues. The insured in Rolley sustained a mild traumatic brain injury as a result of an accident and successfully distinguished his pre-existing complaints from his accident-related injuries despite similarities between the insured’s cognitive symptoms pre- versus post-accident.
26The Respondent contends that the Applicant would be in her present condition regardless of the subject accident. It submits that the Applicant’s pre-accident complaints are multi-factorial in origin and there is no persuasive evidence to demonstrate that any mental or behavioural impairments are caused by the accident.
LAW
27The Applicant submits that she sustained a catastrophic impairment pursuant to section 3.1(1)8 of the Schedule (“criterion 8”). That section provides that an impairment is a catastrophic impairment if the insured person sustains an impairment in an accident and the impairment, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“the AMA guides”), 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 or more areas of function that precludes useful functioning, due to a mental or behavioural disorder. The parties agree that the Applicant does not suffer from an extreme impairment in any area of function.
28The assessment pursuant to criterion 8 excludes consideration for any physical impairments and is based solely on mental and behavioural disorders. Pursuant to criterion 8, mental and behavioural impairments are measured in four areas: 1) Activities of Daily Living (“ADLs”); 2) Social Functioning (“SF”); 3) Concentration Persistence and Pace (“CPP”); and, 4) Adaptation in Work or Work-like Settings (“adaptation”).
29According to the AMA guides, the impairment rankings are as follows.
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
ADLs
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
Adaptation in work and work-like settings
30The AMA Guides note that a marked impairment in two or more spheres would be likely to preclude performing complex tasks without special support or assistance, such as that provided in a sheltered environment. An individual who was impaired in all four categories of functioning would be limited in ability to carry out many, but not all complex tasks. Mild and moderate limitations reduce overall performance but do not preclude performance.
31The onus is on the Applicant to demonstrate that she suffers from a class 4 marked impairment in three of the four domains.
ANALYSIS
32For the following reasons, I find that the Applicant has not sustained a catastrophic impairment pursuant to criterion 8.
Catastrophic Impairment – Criterion 8
33The Applicant’s mental and behavioural impairments were assessed on three separate occasions. She commissioned assessments by Dr. S. Shamalak, psychiatrist, and Dr. D. Kurzman, neuropsychologist, with reports dated July 10, 2019, and October 25, 2019, respectively. The Respondent commissioned an assessment by Dr. I. Kiss, psychologist, who issued a report dated July 15, 2020.
34Dr. Kurzman found that the Applicant sustained a class 3, moderate impairment (“moderate impairment”) in the domains of ADLs, SF, and CPP, and a marked impairment in the domain of adaptation. Dr. Kurzman concluded that the Applicant did not suffer a catastrophic impairment as a result of the subject accident. Dr. Kurzman did not testify at the hearing.
35Dr. Kiss found that the Applicant sustained a Class 2 impairment (“mild impairment”), in all domains. This report was commissioned by the Respondent. As noted previously, Dr. Kiss passed away after the report was commissioned but before the hearing and could not testify at the hearing.
36Dr. Shamalak found that the Applicant sustained a moderate impairment, in the domain of SF, a marked impairment, in the domains of adaptation and CPP, and a “moderate to marked impairment” in the domain of ADLs. Dr. Shamalak concluded that the Applicant sustained a catastrophic impairment as a result of the subject accident and testified to this during the hearing.
37The reports are condensed into the following chart.
Dr. Kiss
Dr. Kurzman
Dr. Shamalak
ADLs
Mild Impairment
Moderate Impairment
Moderate to Marked Impairment
SF
Mild Impairment
Moderate Impairment
Moderate Impairment
CPP
Mild Impairment
Moderate Impairment
Marked Impairment
Adaptation
Mild Impairment
Marked Impairment
Marked Impairment
38Dr. Shamalak’s report is the only one to conclude that the Applicant sustained a catastrophic impairment as a result of the accident, whereas Dr. Kiss and Dr. Kurzman concluded that she did not. Therefore, for the Applicant to be successful at this hearing, I must find that Dr. Shamalak’s finding of a marked impairment in the area of ADLs is the correct conclusion on a balance of probabilities.
39With respect to the Applicant’s functioning in the domain of ADLs, I find that she falls at the lower end of the range provided by Dr. Shamalak and therefore, has not sustained a catastrophic impairment as a result of the accident. I find that Dr. Shamalak overstated the Applicant’s pre-accident functioning and attributed her post-accident functioning, specifically in the domain of ADLs, to her accident-related injuries without full consideration of the Applicant’s physical issues which impair her functioning. As noted earlier, an analysis of the Applicant’s mental and behavioural impairments must exclude impairments that are caused by her physical injuries.
Activities of Daily Living (“ADLs”)
40I find that the Applicant sustained no more than a moderate impairment in the domain of ADLs.
41The AMA guides states that ADLs include activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities. According to the AMA Guides, any limitations in these activities should be related to the mental disorder rather than factors such as a lack of money or a lack of transportation. When assessing catastrophic impairments, the mental and behavioural impairments must be assessed independent of the Applicant’s physical impairments.
42Dr. Shamalak concluded that the Applicant fell in a range between a level 3 or 4 impairment with respect to ADLs when considering the emotional impact of stress and physical symptom escalation, due to a mental and behavioural disorder. Dr. Shamalak’s report states that an evaluation of the Applicant’s ADLs involves a consideration for such things as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities. He testified that mental behaviours fluctuate from time to time and, when an impairment score falls between two levels, the assessor is permitted to flex higher. To Dr. Shamalak, the Applicant met certain conditions when observing what activities fell in the marked range in the areas of self-care, personal hygiene, communication, ambulation, sexual function, sleep, and social/recreational activities. For example, Dr. Shamalak testified that the Applicant was independent with grooming and toileting but noted that she would only bathe when her husband was home due to a fear of falling. He highlighted the Applicant’s inability to perform her own nail care and don or doff footwear and referred to her dependence on supports like shower bars or other assistive devices. He concluded that the Applicant would not be independent with those tasks without those supports.
43I find that Dr. Shamalak overestimated the Applicant’s pre-accident functioning in the domain of ADLs. Dr. Shamalak testified that, prior to the accident, the Applicant was functioning well and independent. He noted in his report that the Applicant endorsed that she was 99% recovered from her brain lesions at the time of the accident. An in-home assessment report by A. Phillips, occupational therapist, dated July 25, 2017, and an in-home assessment report by K. Roth, occupational therapist, dated June 14, 2018, are both quoted in Dr. Shamalak’s report. Both occupational therapy reports state that the Applicant reported that, prior to the accident, she was independent with all her personal care tasks, shared household chores with her husband, and was responsible for all cooking and laundry.
44The Applicant and her husband testified that the Applicant was not as independent as indicated in the occupational therapy reports dated July 25, 2017 and June 14, 2018. The Applicant reported that she needed occasional assistance with some personal care tasks prior to the accident and it increased following the accident. She testified that, prior to the accident, she needed help with activities like donning shoes and socks so that she would not fall during the process. She used a walker or cane prior to the accident but reported that she uses her walker more frequently since the accident. The Applicant’s husband testified that he would help with shower and tub transfers prior to the accident but must pay more attention to her following the accident.
45In my view, Dr. Shamalak’s consideration for the Applicant’s pre-accident status is undermined by his failure to give attention to the Applicant’s complaints at an emergency room visit 45 days prior to the accident, as well as her comments that she was 99% recovered from her brain lesions, and the impact of her sleep apnea on her disrupted sleep. Dr. Shamalak appeared to accept the Applicant’s report that she was 99% recovered prior to the accident. Further, he never opined on the emergency room visit. While I appreciate, as Dr. Shamalak testified, that the emergency room visit is only a snapshot of the Applicant’s pre-accident status, I find that failing to address the issue, as Dr. Shamalak did, undermines the report. Records from the emergency room visit 45 days prior to the accident state that the Applicant had complaints of a severe headache, light and noise sensitivity, and an increased stutter. These complaints are remarkably similar to her accident-related complaints.
46Further, Dr. Shamalak’s report found that the Applicant’s chronic insomnia was worsened by the accident, without considering that she was diagnosed with sleep apnea. Dr. Shamalak testified that there is no test for insomnia, but rather he rules out sleep apnea in order to conclude that the Applicant’s insomnia is related to a mental and behavioural impairment. In cross-examination, Dr. Shamalak acknowledged that the Applicant was awaiting sleep study results at the time of the assessment. Notably, the medical records listed in the document review for Dr. Shamalak’s report include several references to sleep apnea, including but not limited to: Dr. Zalter’s note of June 30, 2015; Dr. Silva’s report dated May 10, 2017; and Dr. Desai’s report dated May 9, 2019.
47Dr. Shamalak never included the CPPD application or the National Benefit Authority (“NBA”) document dated March 1, 2017 in the review of documents for the catastrophic impairment assessment. In testimony, Dr. Shamalak agreed that the forms are relevant, but it was not included in his document review. The CPPD application notes that the Applicant suffers from post-infection demyelination of the left parietal lobe, anxiety, and type II diabetes. The relevant medical history noted in that document states that the Applicant is subject to sudden episodes of confusion, headaches, visual disturbances and aphasia that led to hospitalization in January 2014 and that the Applicant has persistent headaches, gait disturbance, anxiety, and significant expressive aphasia with possible permanent impairment also likely. The prognosis was that the Applicant may get help in coping with the effects of her health conditions but will not likely recover and is unable to work.
48Similarly, the NBA document notes that the Applicant reports walking and dressing deficits since 1998 and 2011, respectively. However, Dr. Shamalak testified that the information in the CPPD and NBA files is not new or surprising and suggested that the Applicant’s condition improved between the date of the documents and the date of the accident. He was unsure of the level of the Applicant’s recovery but testified that he believed she improved significantly.
49Dr. Shamalak overstated the changes to the Applicant’s functionality following the accident. Dr. Shamalak found that the Applicant was unable to engage in activities such as paying bills and grocery shopping as a result of the accident. Yet, the testimony of the Applicant and her husband was that the Applicant was never responsible for paying the household bills or budgeting and continues to participate in grocery shopping. In fact, the Applicant’s husband became the Applicant’s Power of Attorney following the onset of the brain lesions and continues to be to-date. Dr. Shamalak’s report contradicts itself when it notes that the Applicant would accompany her husband while grocery shopping in order to limit the amount of junk food purchased. The Applicant also testified that she is able to grocery shop without the use of a list. If anything, these actions suggest that the Applicant is capable of making rational decisions with respect to her diet and grocery purchases and undermines Dr. Shamalak’s assessment of the Applicant’s post-accident impairments.
50Dr. Shamalak considered the Applicant’s physical impairments when assessing for mental and behavioural impairments. While discussing the Applicant’s impairments in ADLs during testimony, Dr. Shamalak noted that the Applicant relied on assistive supports such as shower bars and bed rails and was unable to bend to do activities such as toenail care and don and doff shoes and socks. However, the assessment of mental and behavioural impairments must exclude physical impairments, such as bending impairments, and focus on the mental and behavioural impairments. Further, the Applicant’s bending impairment pre-dated the accident, as confirmed by the testimony of her husband and the CPPD documents of late 2014 and early 2015. Similarly, Dr. Shamalak’s report stated that the Applicant used to exercise, go for walks and walk her dog prior to the accident and is now restricted to short walks only due to a risk of falls and has increased her use of a walker. Yet, this is a physical impairment and, in the same report, Dr. Shamalak found no apparent anxiety, amotivation, cognitive difficulties, or anergia limiting the Applicant’s activities of daily living.
51The Applicant’s weight loss following the accident was considered when assessing her mental and behavioural impairments, yet it is unlikely to be accident-related. Dr. Shamalak noted that the Applicant lost over 100 pounds following the accident and attributed it to a loss of appetite. However, the Applicant has engaged weight loss strategies under the care of Dr. Zalter both before and following the accident, often related to diabetes control. In fact, the Applicant takes topiramate, which is used to control seizures and reduce migraine headaches and is often associated with weight loss.
52Dr. Shamalak never opined on whether the Applicant’s ability to communicate is impaired as a result of the accident, despite stating that it was considered. Dr. Shamalak’s report omits consideration of the Applicant’s ability to communicate. I recognize that the Applicant developed a stutter as a result of brain lesions and regularly reports that it worsened following the accident. However, no evidence demonstrates that the condition is as a result of or exacerbated by a mental or behavioural impairment suffered in the accident. Further, Dr. Shamalak testified that the Applicant was not disabled due to a stutter.
53I find that Dr. Shamalak’s assessment of the Applicant’s sexual function is generally accurate. His report documents the Applicant’s significant decrease in intimacy with her husband and notes that the Applicant queried whether her poor libido was related to medications. While I would prefer that Dr. Shamalak addressed the affect of medications in the report, it was done so in testimony. Dr. Shamalak quickly reviewed a list of medications that the Applicant consumes and concluded that none had typical side affects relating to sexual disfunction. More compelling, the Applicant and her husband testified to her sexual disfunction, and both stated that intimacy between them had been difficult and infrequent prior to the accident, but that it was reduced to virtually nothing following the accident.
54I find that Dr. Shamalak’s above-noted conclusions on the Applicant’s ability to engage in her ADLs are contradicted by the evidence and testimony. This leads me to conclude that the Applicant’s impairment falls at the lower end of the range provided by Dr. Shamalak. Thus, I find that the Applicant sustained a moderate impairment in the domain of ADLs.
55My conclusion that the Applicant’s mental and behavioural impairment is no more than a moderate impairment is consistent with Rolley. Rolley concluded that certain standard health claims forms were not determinative of the injured person’s pre-accident status. My decision does not turn on information in the standard health claims forms, such as the CPPD and NBA forms. Rather, this decision turns on my finding that the evidence and testimony at the hearing leads me to conclude that the Applicant’s impairment falls at the lower end of the range of impairment provided by Dr. Shamalak.
56Having found that the Applicant sustained no more than a moderate impairment in the domain of ADLs, she does not meet the threshold for a catastrophic impairment. Therefore, an analysis on the remaining domains is unnecessary. Likewise, an analysis on the IEs, the validity testing conducted during the assessments, as well as the criteria applied during the assessments is unnecessary considering my findings with respect to the Applicant’s impairment level in the area of ADLs.
CONCLUSION
57I find that the Applicant did not sustain a catastrophic impairment as a result of the subject accident.
Released: February 13, 2023
Brian Norris
Adjudicator