Licence Appeal Tribunal File Number: 19-012682/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:
Becky Nguyen
Applicant
And
TD Insurance Meloche Monnex
Respondent
DECISION
ADJUDICATOR:
Anita John
APPEARANCES:
For the Applicant:
Becky Nguyen, Applicant Nicholaus de Koning, Counsel Observer: Alexander David, Student at law
For the Respondent:
Derek Vihvelin, Counsel Mike Fleuratin, Counsel
Court Reporters:
Jackie Graham Zahra Ahmad
HEARD: by Videoconference:
January 23, 2023 – January 27, 2023
OVERVIEW
1Bich Thi N. (Becky) Nguyen, the applicant, was involved in an automobile accident on June 15, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, TD Insurance Meloche Monnex, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2A videoconference hearing took place on January 23-27, 2023.
3The applicant’s witnesses at the hearing were the applicant, Dr. Levitt, lay witness, Marie Chin Quee, and occupational therapist, Ms. Dyk. The respondent’s witnesses consisted of insurer examiner assessors and expert witnesses: Dr. Kurzman, Dr. Eisen and occupational therapist, Ms. Robbins.
ISSUES
4The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to attendant care benefits in the amount of $1,711.17 per month from November 29, 2018, to date and ongoing?
iii. Is the applicant entitled to medical benefits proposed by Lindsay Plaisant, as follows:
i. $4,999.00 for assistive devices, in a treatment plan, submitted on October 19, 2018; and
ii. $7,937.38 for a occupational therapy services, in a treatment plan submitted on July 10, 2018; and
iii. $918.28 for assistive devices, in a treatment plan, submitted on July 10, 2018
iv. Is the applicant entitled to $1,155.00 for massage therapy, proposed by Dawn Lidstone, in a treatment plan/OCF-18 (“plan”), submitted on July 18, 2019? The applicant withdrew this issue.
v. Is the applicant entitled to $2,490.00 for chiropractic treatment, proposed by Dr. William Gilmore, in a treatment plan/OCF-18 (“plan”), submitted on July 11, 2018? The applicant withdrew this issue.
vi. Is the applicant entitled to $2,092.52 for audiometric and speech-language pathology services, proposed by Julian Venhuizen, in a treatment plan/OCF-18 (“plan”), submitted on October 15, 2018? The applicant withdrew this issue.
vii. Is the applicant entitled to housekeeping and home maintenance benefits in the amount of $100 per week from June 15, 2017, to date and ongoing? This applicant withdrew this issue.
viii. Is the applicant entitled to interest on any overdue payment of benefits?
5The applicant submitted that the issue of catastrophic impairment was the focus of the hearing. As a result, evidence was not led on the following benefits: $1,155.00 for massage therapy, $2,490.00 for chiropractic treatment and $2,092.52 for audiometric and speech-language pathology services. The applicant acknowledges that nothing was incurred for housekeeping, so no past amount is to be paid for the same.
RESULT
6I find that on a balance of probabilities:
The applicant sustained a catastrophic impairment because of the accident.
The applicant is entitled to attendant care benefits in the amount of $1,711.17 per month from November 29, 2018, to date and ongoing.
The applicant is entitled to occupational therapy services, in the amount of $7,937.38.
The applicant is not entitled to assistive devices, in the amount of $4,999.00.
The applicant is not entitled to the assistive devices in the amount of $918.28.
The applicant is entitled to interest.
7The applicant applied for a catastrophic determination under subsection 3(1)(8) of the Schedule (“Criterion 8”) based on a mental and behavioural impairment. Impairment is rated in accordance with Chapter 14 of the 4th edition of the Guides. The Guides make it clear that a diagnosis of a specific psychological impairment is not required for catastrophic impairment, but instead the focus is on function.
8In Liu v. 1226071 Ontario Inc., 2009 ONCA 57, at paragraph 30, the test for catastrophic (CAT) impairment is a legal test, not a medical test. In order to be determined catastrophic under the Schedule, the applicant must prove, on a balance of probabilities, that the impairments she suffered as a result of the accident has resulted in 3 class 4 impairments (marked impairment) or a class 5 impairment (extreme impairment) in any of the four areas of function outlined in Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“Guides”).1
9These impairments are assessed under mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides sets out the 4 spheres of functioning and the levels of impairment as represented in the chart below.2
Area or Aspect of Functioning
Class 1: No Impairment
Class 2: Mild Impairment
Class 3: Moderate Impairment
Class 4: Marked Impairment
Class 5: Extreme Impairment
Activities of Daily Living
No impairment is noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some, but not all useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning
Social Functioning
Concentration, Persistence and Pace
Adaptation (Deterioration in a work-like setting)
10The applicant relies on the catastrophic report of Dr. Levitt, psychologist who determined that she suffers a marked impairment (class 4) in all four spheres of functioning: Activities of Daily Life (“ADLs”), Social Functioning (“SF”), Concentration, Persistence, Pace (“CPP”) and Adaptation to Work and Work-like settings (“AD”).
11The respondent relies on the catastrophic IEs of Dr. Kurzman, Dr. Eisen and OT Melanie Robbins. Dr. Eisen determined that the applicant sustained a moderate impairment (class 3) in activities of daily living, a moderate impairment (class 3) in social functioning, a moderate impairment (class 3) in concentration, persistence and pace, and a marked impairment (class 4) in adaptation.
12For the purposes of this proceeding, the relevant classes – and the ensuring disagreement between the parties – concerns whether the applicant’s impairments fall within class 4 (marked impairment) in activities of daily living, social functioning and concentration, persistence and pace. The parties do agree, however, that the applicant suffers from a Class 4 (Marked) impairment with respect to the adaptation domain. It is important to note that the difference in wording between the classes is subtle, but critical. With that in mind, my analysis will focus on the three remaining functional domains in dispute.
13The applicant asserts that the accident caused her impairments and functional limitations.
14The respondent argues that the accident did not cause the applicant’s impairments that form the basis for her application for a catastrophic determination. It maintains that the applicant experienced the significant, pre-accident trauma as both a child and an adult.
15Therefore, before I determine whether the applicant meets the threshold for CAT under Criterion 8, I will first address the issue of causation.
16In Pastore v Aviva, 2012 ONCA 642 at para 6, the Ontario Court of Appeal set out a three-step approach for determining whether a person has sustained a catastrophic impairment due to a mental or behavioural disorder:
i. Did the accident cause the applicant to suffer a mental or behavioural disorder?
ii. If it did, what is the impact of the mental or behavioural disorder on the applicant’s life?
iii. In view of the impact, what is the level of impairment?
17I have considered the first prong of this test in paragraph 18, below the section entitled, did the accident cause the applicant to suffer a mental or behavioural disorder. I considered the second and third prongs of the test starting in paragraph 34, below the section entitled did the applicant sustain a catastrophic impairment because of the accident.
ANALYSIS
Did the accident cause the applicant to suffer a mental or behavioural disorder?
18The applicant suffers from mental or behavioural disorders because of the accident.
19I accept that the applicant was diagnosed with psychological disorders before the accident. In a psychological report, dated November 26, 2014, from the Homewood Health Centre, psychologist, Dr. Moroz diagnosed the applicant with posttraumatic stress disorder, complex type, major depressive disorder, generalized anxiety disorder and social phobia.
20While the applicant was in Homewood, she was treated. She was doing well in 2015 up to the date of the accident. The Conestoga College records, which was filed as an exhibit at the hearing, confirmed that she was enrolled in a certificate program in “information technology business analysis” in 2015, after Homewood. She received good grades in the A and B range. She was also working as a Children’s Program Instructor at the YMCA.
21In a psychological assessment, from Dalton & Associates, dated September 14, 2017, post-accident, psychologist, Dr. Muriaru diagnosed the applicant with severe depressive episode, symptoms of PTSD, specific isolated phobia, motor vehicle anxiety, passenger, post concessional syndrome, acute pain, and limitation of activity due to disability (functional limitations).
22The respondent also submits that Dr. Levitt ignored causation in assessing the applicant’s pre-accident medical history. I disagree. I find the opposite to be true as on pages 73-86 of the report, Dr. Levitt gave a very detailed explanation for how he came to the determination that the accident was the cause of the applicant’s psychological impairment.
23Dr. Levitt notes that the applicant was functioning well at the time of the June 15, 2017, motor vehicle accident. The applicant testified, that before the accident, she provided troubleshooting computer services, volunteered at the YMCA, worked with children, and took courses at Conestoga College.
24After the accident, the applicant was unable to return to work, school or volunteering following the 2017 motor vehicle accident. Dr. Levitt noted that the pain that persisted contributed to her pervasive avoidance and withdrawal of activity, and the onset of persistent depression. Dr. Levitt noted that posttraumatic distress and anxiety emerged in relation to the motor vehicle accident. Dr. Levitt found that the applicant’s psychological and mental disorders are a result of the June 15, 2017, motor vehicle accident.
25The respondent submits that the accident was not the cause of the applicant’s impairments as she was involved in three other automobile accidents. As for the three subsequent accidents (March 25, 2019, May 11, 2019, and June 3, 2019), Dr. Levitt opined that the applicant developed depression and symptoms of post-traumatic distress, following the June 15, 2017, motor vehicle accident, which interacted with her pain and other somatic symptoms. He found that her symptoms were already entrenched and unresolved when she was involved in 3 subsequent motor vehicle accidents – these further aggravated her disorders resulting from the 2017 motor vehicle accident. In his summary of findings and conclusion, Dr. Levitt diagnosed the applicant with the following DSM-5-TR diagnoses: Somatic Symptom Disorder with Pain and Symptoms consistent with post-concussive syndrome, severe, persistent, psychological factors affecting pain; persistent depressive disorder with persistent major depressive episode, severe; and posttraumatic stress disorder.
26The respondent’s IE assessor, psychiatrist, Dr. Eisen, concluded that because of the subject motor vehicle accident, according to the DSM-5 criteria, the applicant’s diagnoses are major depressive disorder and specific phobia (driving/passenger anxiety).
27All the treatment providers and assessors were of the view that the applicant suffers from at least one mental or behavioural disorder due to the accident. That is sufficient to meet the first branch of the Pastore test.
28The accident meets the “but for” test for causation. I accept that the accident is not the sole cause of the applicant’s impairments. It is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (“Sabadash”). To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident she would not have suffered the impairments which form the basis for her application for CAT status. The court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment but a necessary cause. As per my reasons below, the accident was a necessary cause of the applicant’s psychological impairment.
29The respondent also spent a lot of time highlighting the applicant’s pre-accident medical history and referred to her admission to the Homewood treatment centre in Guelph on October 15, 2014. She was discharged on December 29, 2014, from the Integrated Mood program. Although I agree with the respondent that the applicant had a significant pre-accident medical history with complex PTSD and Major Depression in Homewood, leading up to the accident, the evidence supports that she was still functioning at a much higher level than she has been following the accident.
30Ultimately, I reject the respondent’s argument on causation because both parties’ psychological assessors (including its own) determined that the applicant sustained a psychological impairment because of the accident. Dr. Levitt diagnosed the applicant with Somatic Symptom Disorder with predominant pain, persistent, moderate, Major Depression and complex PTSD due to the subject accident.
31According to the DSM-5 criteria, Dr. Eisen, the respondent’s assessor diagnosed the applicant with Major Depression Disorder and Specific Phobia (Driving/passenger anxiety). However, Dr. Eisen concluded that applicant did not meet the criteria for Somatic Symptom Disorder. However, Dr. Eisen, did not conduct the same kind of testing as Dr. Levitt did, nor did he interview for as long a period.
32Both assessors reviewed the applicant’s pre-accident medical records as part of their assessments and still opined that the accident was a cause of the applicant’s psychological impairment. Consequently, I accept these assessors’ opinions and find that the accident was a necessary cause of the applicant’s psychological impairment.
33Overall, I do not find the medical records support the respondent’s position. For all the above-noted reasons, I find the threshold for causation has been met. Now I will address whether the applicant meets the threshold for catastrophic impairment under Criterion 8.
Did the applicant sustain a catastrophic impairment because of the accident?
34The applicant sustained a catastrophic impairment, as I find the evidence supports, she has a marked impairment in all four spheres.
35I prefer the report and opinion of Dr. Levitt over Dr. Eisen as Dr. Levitt’s assessment was more thorough and followed the procedures set out in the Guides for conducting assessments. In the 87-page report, Dr. Levitt outlined his firm’s assessment process, the need to adhere to the Guides’ methodology and the need to obtain as much information as possible. His process includes extensive clinical interviewing, a collateral interview, a review of the file documentation, behavioural observations, and psychological testing, a detailed review of the applicant’s pre- and post-accident medical records, and the administration of psychometric tests. In addition, Dr. Levitt’s diagnosis and impairment ratings were more consistent with the medical record before me and were corroborated by the CNRs of the applicant’s treating practitioners.
36I have given Dr. Eisen’s opinion and assessment less weight for the following reasons. First, Dr. Eisen’s assessment took an hour and a half, and no testing or collateral interviews were undertaken. During the hearing, when he testified, Dr. Eisen did not seem to have his report in front of him. Second, Dr. Eisen did not offer any basis on which to try to untangle the mental health issues from the purely physical issues. Third, Dr. Eisen was not a strong witness at the hearing. He did not seem to have much, if any, recollection of the applicant.
37On the other hand, during the hearing, when he testified, Dr. Levitt was prepared as he had his report in front of him. Second, Dr. Levitt testified that his report is 87 pages long because he and his team are “obsessive” about doing a rigorous and comprehensive assessment. Third, Dr. Levitt presented as a strong witness at the hearing as he had a good recollection of the applicant.
38With respect to performance validity testing, IE neuropsychologist, Dr. Kurzman, carried out neuropsychological testing on May 30, 2019, October 15, and October 21, 2020. Although Dr. Kurzman noted issues with validity testing, in the end, he could not say with any absolute certainty that the applicant was exaggerating her symptoms. This is because there are many reasons for the poor test results, including poor engagement, meaning that the applicant could have been overwhelmed and exhausted by the whole process. Indeed, she was observed to stutter at several times during the clinical interview. During a short break about halfway through the interview, it appeared as if she was vomiting in the background. I also note that Dr. Kurzman did not provide a rating under criterion 8 so his report is very limited as far as the main issue in dispute.
39I find the applicant to be a credible witness in describing her pre and post motor vehicle accident activities as her testimony was consistent with what she reported to assessors.
40Having described the main reasons for why I prefer Dr. Levitt’s opinion over Dr. Eisen’s. I will now address the four spheres of functioning.
ADAPTATION
41Both the respondent and the applicant found that the applicant has a marked impairment in adaptation because of her accident-related psychological impairment. I agree.
42The Guides define impairment in adaptation as the repeated failure to adapt to stressful circumstances, in the face of which “the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate or having difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.”3 By definition, impairment in adaptation affects the ability to function across all activity areas. Regarding activities of daily living, their quality is judged by their independence, appropriateness, effectiveness, and sustainability.
43Dr. Eisen noted that the applicant did not return to work at the YMCA or to her education program at Conestoga College following the subject accident. Indeed, she worked steadily from the 1980s up to the time of the accident. She gave evidence about the various companies she worked at such as Bend All, Autocom and Com Dev. These jobs were mostly in manufacturing, with an emphasis on quality control and inspection. She also conducted training and supervising. Dr. Eisen found that the applicant appeared to be most limited due to pain as well as her emotional distress. Strictly from a psychiatric perspective, Dr. Eisen found that the applicant demonstrates Class 4 (marked) impairment in this domain due to the subject motor vehicle accident. I agree with Dr. Eisen and find the applicant has a marked impairment in adaptation because of her accident-related psychological impairment.
44Dr. Levitt opined that the applicant remains in a vulnerable psychological state. He notes that she could not be relied upon to engage in work independently, reliably, and consistently. He concluded that any attempt to return to work would result in further psychological deterioration. In addition, he observed that she currently presents in a deteriorated state from a psychological perspective, despite little useful daily functioning and being generally isolated. He goes on to state that any additional stressors or loss of supports would result in further serious deterioration. I agree with Dr. Levitt and find the applicant has a marked impairment in adaptation because of her accident-related psychological impairment.
SOCIAL FUNCTIONING
45The applicant has a marked impairment in social functioning because of her accident-related psychological impairment.
46According to the Guides, this area of functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords or bus drivers. It is not only the number of aspects in which social functioning is impaired that is significant, but also the overall degree of interference with a particular aspect or combination of aspects.4
47It is not contested that the breakdown of the applicant’s marriage with her husband and estrangement from her sons was present before the 2017 MVA. However, the applicant confirmed that she has no relationship with her four adult sons, post-accident. She told Dr. Levitt that she no longer talks to her ex-husband. She said they began communicating through their lawyers around 2017. Her social life is negligible. She told Dr. Levitt that she lost interest in sex after the 2017 MVA, which is also consistent with a marked rating.
48Dr. Levitt’s CAT assessment concluded that the applicant has a marked impairment in social functioning. He notes that the applicant’s relationships with her family members have been strained because of her post traumatic stress and low self-esteem issues. Dr. Levitt’s assessment also notes that the applicant is unable to empathize with others post accident. Dr. Levitt’s report also notes that the applicant sees friends on a limited basis and often cancels because of anxiety and her mood. I find Dr. Levitt’s conclusion more consistent with the medical evidence before me and it was also supported by reports and the applicant’s friend, Marie Chin Quee’s testimony at the hearing.
49The applicant socially isolates often. She testified at the hearing that she has not met her neighbours or invited guests over. She told Ms. Dyk that she avoids her landlord as she is anxious to ask about the rules using the laundry facility. As a result, she washes her clothes in the sink. The applicant’s friend, Marie Chin Quee, testified how engaged the applicant was, pre-accident, as she went to the gym every two to three weeks, and participated in aerobics, group core and group power classes. Yet Marie could not definitively state how often the applicant went to the gym, post-accident. In addition, Marie noted that the applicant did not have a speech impediment prior to the accident. However, Marie felt something was not right with the applicant when she spoke with her, post-accident. Marie noticed that the applicant was stumbling to find words. Marie also testified that the applicant has no contact with any friends or family to help her.
50The respondent argues that the applicant has a moderate impairment in this sphere because she has been cooperative and pleasant with assessors, has maintained relationships with her family members such as siblings and her mother who live in Winnipeg, still meets the odd friend for coffee and has attended social functions post-accident. The basis for Dr. Eisen’s finding in this sphere was that the applicant was pleasant and cooperative during the assessment.
51First, I do not find the respondent’s findings compelling or persuasive as medical professionals are trained to deal with patients who have mental health issues. Second, the applicant is not close to her family as she is estranged from her immediate family and not engaging with her extended family in Winnipeg or overseas, on a regular basis. Third, Dr. Levitt has noted that her impaired social functioning is readily apparent, as she struggled with a stutter and word finding during interviews with him. Fourth, Dr. Eisen reported that the applicant has been socializing less because she feels that she has difficulty communicating because of her stutter. She has reported to Dr. Eisen that she has “no particular important people in her life.”
52The evidence supports that the applicant’s social functioning has significantly changed post-accident as she is now anxious, and depressed, which has had more than a moderate impact on her relationships and social functioning. Consequently, I find that the applicant’s overall impairment level in this sphere is more compatible with a marked versus moderate impairment.
CONCENTRATION, PERSISTENCE AND PACE
53The applicant has a marked impairment in concentration, persistence, and pace.
54The Guides define this sphere as having the ability to sustain focused attention long enough for the timely completion of tasks commonly found in work settings. In activities of daily living, concentration may be reflected in terms of ability to complete everyday household tasks. Deficiencies in concentration, persistence and pace are best noted from previous work attempts or from observations in work-like settings. In psychological tests of intelligence or memory, concentration is assessed through tasks requiring short-term memory or tasks that must be completed within established time limits. Strength and weaknesses in mental concentration may be described in terms of frequency of errors, the time it takes to complete a task and the extent of which assistance is required to complete a task.
55Dr. Levitt opined that the applicant has a marked impairment in this sphere, whereas Dr. Eisen assigned a moderate impairment rating.
56I find that the evidence tendered at the hearing supports Dr. Levitt’s impairment rating. The applicant has problems with concentration and memory post-accident as she forgets things and has difficulty with the assessment process.
57First, I find Dr. Eisen’s analysis highlighting the applicant’s limitations does not support a moderate finding. First, Dr. Eisen noted in his report that the applicant’s concentration and memory have declined. Second, he noted that the applicant loses items, such as her keys, and has locked them in her car inadvertently. Third, he noted that she sometimes struggles to cook and has difficulty determining which knob to turn. As a coping mechanism, Dr. Levitt justified the labelling of the knobs on the stove with post it notes as a form of cuing on what direction to turn the knob. Fourth, Dr. Eisen noted that there were gaps in her long-term memory as when she separated from her husband.
58Second, the applicant has difficulty with concentration during assessments which has resulted in strong adverse reactions such as throwing up or retching in the middle of assessments.
59During a mental health assessment on February 18, 2020, with Dr. Eisen, he found that the applicant was neatly dressed and neatly groomed. He found her to be well oriented. Although she was presenting as healthy with Dr. Eisen’s assessment, this was directly contradicted during a clinical interview with IE assessor, neuropsychologist, Dr. Kurzman on or about October 15 and 21, 2020. She stuttered and held her head, due to the magnitude of pain that she was experiencing, at several times during the clinical interview. During a break at the interview, the applicant vomited in the background. During the duration of the interview, she frequently shifted in her seat, due to pain and she expressed that she was feeling nauseous. By the end of the session, she sighed and heaved on multiple occasions. In addition, her stuttering appeared to worsen.
60Third, IE occupational therapist assessor, Ms. Robbins, observed in her report, that within the context of real-world examples, the applicant has not persisted through her educational pursuits which she stated she had started the month prior to the subject accident and did not continue with her pre-accident employment. In addition, Ms. Robbins noted that the applicant is not maintaining the same level of standard with respect to personal care tasks (showers approximately two days per week and changes clothes two to three days per week). Overall, from a functional cognitive perspective, Ms. Robbins observed ongoing difficulties, with short-term memory, comprehension of written and verbal instructions, and word finding. Ms. Robbins found that the applicant’s difficulties were present from the onset of the assessment but continued to become magnified as the assessment progressed in duration and her level of fatigue increased.
61Fourth, the applicant’s treating occupational therapist, Ms. Dyk noted in her report, that there were items strewn over the applicant’s countertops. The applicant admitted that she keeps things on the counter as she cannot remember where they are if she puts them away. She relies on her phone to retrieve details. The applicant had trouble during the Ms. Dyk’s situational assessment and could not recall where she parked the car. She spent almost ten minutes walking up and down rows of cars, in a panic-stricken state, before she could find her car. As a result, the applicant asked Ms. Dyk to follow her home after the exercise.
62The evidence supports that although she can complete some of her activities of daily living and housekeeping and home maintenance tasks, she does so inconsistently and does not complete tasks in a timely manner.
63As already noted, despite any limitations the applicant may have had pre-accident, I find she was functioning at a much higher level. I find that the applicant’s chronic pain, depression, anxiety, and cognitive deficits has resulted in a marked impairment in concentration, persistence, and pace.
ACTIVITIES OF DAILY LIVING
64The applicant has a marked impairment in activities of daily living because of an accident-related psychological impairment.
65The Guides specify that activities of daily living include self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitation in these activities should be related to the person’s mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual’s overall situation. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.5
66Dr. Levitt’s CAT assessment concluded that the applicant has a marked impairment in activities of daily living. The report notes that the applicant does very little useful activity on her own. Dr. Levitt’s findings were corroborated by witness, Marie Chin Quee, and by both occupational therapists at the hearing. The respondent submits that the applicant has a moderate impairment in this sphere because she is independent with personal care, she can drive, arrange for winter tires, manage her finances, cook, do light housekeeping, communicate, and participate in social and leisure activities. While the evidence supports that the applicant can do some of these things, I find that she does not do them consistently or as efficiently in the same way she did pre-accident. The following summarizes my findings about this sphere.
Self-care, Personal Hygiene, & Housekeeping and Home Maintenance Tasks
67Prior to the accident the applicant was independent with self-care and personal hygiene. Following the accident, her personal hygiene is reduced as her showers are once or twice per week due to factors such fatigue and depressive motivation. She told Ms. Dyk that she does not change her clothes often or style her hair as blow-drying her hair may escalate a headache. She is not motivated to focus on her appearance.
68The respondent submits that the applicant can take care of her finances. However, Dr. Kurzman noted in his report, that although she continues to do her banking, she has made several errors to date.
69Dr. Levitt found that the process of cooking and baking exacerbates frustration and anger, feelings which further contributed to spending time in bed, often crying. He also noted that the applicant avoids cleaning and other household chores due to pain, fears of exacerbating pain, and to avoid triggering and frustration. She therefore tends to avoid grocery shopping and tends to order delivery online.
70Occupational therapist Ms. Dyk observed the applicant for a month. She testified at the hearing that the applicant is not emotionally able to initiate housecleaning.
71She reported to Dr. Levitt that prior to the accident, it would take her ten minutes to change the sheets. Post-accident, it takes her 2-3 hours to change the bedding. She cannot do it properly, so sometimes the bed is without sheets.
72The applicant testified that she participated in power walking, group power (group exercise involving weightlifting), yoga and karate pre-accident. Now, the applicant uses a walking stick to support her mobility and for balance. She said she would bang herself into tables when walking, due to dizziness. During an assessment, Ms. Dyk observed that the applicant had consistent visual spatial difficulties as she used walls to guide her walking. I find the applicant’s limitations with mobility was consistently reported in the medical records before me. Further, these limitations are directly connected to the applicant’s psychological impairment.
Social and Recreational Activities
73Prior to the accident, a big part of the applicant’s social life was working out the gym and volunteering with children. She also enjoyed meeting friends for coffee and eating out at restaurants.
74After the accident, the applicant noticed she was sensitive to noise. She reported to Dr. Levitt that does not go to restaurants or movie theatres or even to the gym when there are children around.
75The respondent submits that the applicant has moderate functioning as she surfs her cell phone, listens to podcasts and audiobooks, and uses Facebook to keep up with her friends. In addition, the respondent submits that the applicant went to the gym 3 to 4 times a week after the accident to use the steam room and hot tub as me time.
76The applicant leads a shrunken life. Ms. Dyk opined that the applicant had a rich life at the YMCA, but now listens to podcasts and audiobooks. The applicant cannot focus while reading or enjoy watching television due to her vision problems and has therefore withdrawn from these activities. In fact, she wears dark glasses to help her with headaches and screen tolerance. I find that the applicant has learned to use her phone as a scheduling tool as she sometimes forgets her appointments or when to take her medications. Following friends on social media like Facebook does not lead me to believe that the applicant was proficient with Facebook or was even using it. I note that Dr. Levitt listed the use of the steam room and the hot tub at the gym as hobbies prior to the 2017 MVA. However, even if the applicant did use the steam room and hot tub at the gym post-accident, this is still a marked departure from the physical activity that she was engaged in pre-accident (power walking, group power, yoga and karate).
Communication
77Prior to the accident, the applicant testified that she did not have any issues with communication.
78Post-accident, I find the applicant’s ability to communicate has been significantly impeded by her accident-related psychological impairment. Post-accident, the applicant has developed a stutter and has difficulty communicating. This was apparent during her testimony at the hearing. She avoids friends. In addition, she avoids interacting with strangers as he feels she is no longer a normal person, due to her stutter, and slowed processing speed while communicating. In my view, this behaviour demonstrates that the applicant’s has difficulty communicating effectively post-accident.
Sleep
79The applicant reported to Dr. Levitt that due to hours of tossing and turning at night, she depends on medication to help her sleep. As a result, she feels fatigued during the day. Dr. Levitt reports that due to fatigue, pain, headaches, dizziness, and depression, she spends much of her time on the couch or in her bed. Dr. Eisen notes that the applicant experiences nightmares.
Travel & Ambulation
80The respondent points out that the applicant drives her own car to appointments (including to the neighbouring city), maintains her own car by taking it to the shop regularly and pays for insurance for her own car.
81The applicant testified at the hearing that she has no choice but to drive. In a typical week, Dr. Levitt noted that the applicant leaves her home one to three times per week, avoiding doing as much as possible, because of dizziness, nausea, light sensitivity, and fear of driving. Dr. Eisen noted that with regards to vehicular travel, the applicant reports anxiety associated with driving and travelling as a passenger with some degree of phobic avoidance. Indeed, Ms. Robbins noted in her assessment on February 29, 2020, that the applicant drives within the community and would take back roads.
82The applicant relies on FSCO decision, M.R. and Gore (2010 ONFSCDRS 151). Although I am not bound by FSCO decisions, I do however, agree with Adjudicator Feldman, that driving is an “overlearned” activity – an experienced driver does not typically need to devote much conscious thought to this activity. A person with marked impairment levels will find useful functioning significantly impeded (but not precluded). Therefore, even at the marked level of impairment, one can expect some useful function from the applicant, in areas such as driving and maintenance.
83Even despite the improvements highlighted by the respondent, I am satisfied that the applicant’s accident-related cycle of pain and psychological distress significantly impedes her capacity to independently perform the activities of daily living in a consistent fashion. That is, while planning and energy conservation strategies may allow the applicant to maintain a minimal capacity to perform these acts is unpredictable. I find the number of the applicant’s limitations in the various activities of daily living and the degree in which she is restricted, more compatible with a marked versus a moderate impairment. Overall, the applicant’s accident-related psychological impairment significantly impedes useful functioning in her daily activities.
Is the applicant is entitled to attendant care benefits in the amount of $1,711.17 per month from November 29, 2018 to date and ongoing?
84Section 15 of the Schedule provides that an insurer shall pay for all medical benefits that are reasonable and necessary as a result of an accident-related impairment. The applicant bears the onus of demonstrating on a balance of probabilities that the benefit is reasonable and necessary. 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 of achieving them are reasonable.
85Subsection 42(1) of the Schedule provides that an application for attendant care benefits must be in the form of and contain the information required to be provided in the approved version of an attendant care needs assessment (“Form 1”).
86The applicant is entitled to the attendant care benefits in dispute. The Form 1 outlined the following:
Level 1 for routine business personal care – 900 weekly minutes Level 2 for basic supervisory function – 770 weekly minutes Level 3 for complex functions – 80 weekly minutes
87Dr. Levitt found that she suffers from a class 4 (marked) impairment in the activities of daily living area of function.
88The respondent found that she suffers from a class 3 (moderate) impairment in the activities of daily living area of function. The respondent argues that the applicant is not entitled to attendant care benefits because she has exhausted the $65,000.00 in benefits currently available to her.
89The applicant testified about her limitations when performing activities of daily living. Ms. Dyk and Ms. Robbin’s reports corroborated the applicant’s testimony.
Level 1 for routine business personal care – 900 weekly minutes
90Ms. Dyk found that the applicant only has the capacity to do one or two household tasks per day, such as warming up frozen food or doing laundry. The 420 minutes allocated for meal preparation will assist the applicant. Ms. Dyk found that the applicant’s pain, fatigue, low motivation, and anxiety limits her mobility. The 480 minutes allocated to mobility issues will assist her.
Level 2 for basic supervisory function – 770 weekly minutes
91While the applicant’s mobility has decreased, her ability to make timely exits is compromised. The 630 minutes allocated to emergency response will assist her. Ms. Dyk testified that the applicant lacks the ability to initiate housekeeping. Ms. Robbins felt that the applicant could benefit from hygiene assistance in the bedroom in her Form 1. Indeed, in her CAT report, Ms. Robbins noted in that with respect to hygiene, the applicant rarely makes her own bed. She noted that the applicant estimates changing bed sheets once every two months. She also found that the applicant does not participate in most housekeeping tasks. I find that the 80 minutes for assistance with cleaning her bathroom and bedroom will be beneficial to the applicant. Overall, I find that the 60 minutes allocated for the coordination of the attendant care benefit will be beneficial to the applicant.
Level 3 for complex functions – 80 weekly minutes
92It is Ms. Dyk’s opinion that attendant care benefit is based on the applicant’s decreased access to therapy resulting in the need to complete home exercises at home, which she is struggling to do in an independent manner. I find that the 70 minutes for assistance in exercise and the 10 minutes for maintenance of her TENS machine will be beneficial to her.
93I find that the treatment plan for attendant care is reasonable and necessary as it will assist the applicant with meal preparation, mobilization, emotional and cognitive support, cueing and assistance with information assimilation, exercise, maintenance of assistive devices and with cleaning the applicant’s bedroom and bedroom. This benefit will ensure that the needs of the applicant are met.
Is the applicant is entitled to occupational therapy services, in the amount of $7,937.38?
94The applicant is entitled to the OCF-18 for occupational therapy services, in the amount of $7,937.38, recommended by Lindsay Plaisant.
95Section 15 of the Schedule provides that an insurer shall pay for all medical benefits that are reasonable and necessary as a result of an accident-related impairment. The applicant bears the onus of demonstrating on a balance of probabilities that the benefit is reasonable and necessary. 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 of achieving them are reasonable.
96The goal of the OCF-18, authored by Ms. Plaisant, was to provide rehab assistance to the applicant by maximizing functional restoration and addressing barriers that impede normal daily function. The functional goals listed in the treatment plan ranged from providing 1:1 support in completing in-home exercises to supporting a return to leisure activities and to practice a transfer of skills into the community. The plan recommends two-hour session twice a week for 12 weeks and includes fees for travel and documentation for a total cost of $7,937.38.
97I find the applicant’s impairments and functional limitations are well documented in the evidentiary record before me. Further, her need for occupational therapy treatment is supported by various service providers including Dr. Levitt, Ms. Dyk, Ms. Plaisant and even Ms. Robbins.
98The applicant has met her onus in proving on a balance of probabilities that the OCF-18 for occupational therapy services is reasonable and necessary.
Assistive Devices
99The treatment plan, dated October 19, 2018, which has been partially approved, has a remainder, in the amount of $4,999.00, is for a massage chair.
100The treatment plan, dated July 10, 2018, is for office supplies, such as a mouse pad, foot stool, wireless mouse, comfort desk, keyboard, fabric chair, in the amount of $918.28.
101The applicant did not lead evidence or mention in testimony the reasonableness or necessity of the assistive devices.
102The respondent submitted that it is difficult to reconcile how a massage chair would assist with the mental and behavioural disorders, considering the lack of evidence in support of this. I agree.
103In addition, the applicant led no evidence with respect to the reasonableness or necessity of the office supplies.
104For all the above-noted reasons, I find:
The applicant sustained a CAT impairment, because of the accident.
The applicant is entitled to attendant care benefits in the amount of $1,711.17 per month from November 29, 2018 to date and ongoing.
The applicant is entitled to occupational therapy services, in the amount of $7,937.38.
The applicant is not entitled to the assistive device, (massage chair), in the amount of $4,999.00.
The applicant is not entitled to the assistive devices in the amount of $918.28.
The applicant is entitled interest of any overdue benefits pursuant to s. 51 of the Schedule.
Released: October 17, 2023
__________________________
Anita John
Adjudicator