Citation: Jermane v. CAA Insurance, 2024 ONLAT 23-010370/AABS

Licence Appeal Tribunal File Number: 23-010370/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:

George Jermane

Applicant

and

CAA Insurance

Respondent

DECISION

ADJUDICATOR:

Amar Mohammed

APPEARANCES:

For the Applicant:

Brent McQuestion, Counsel

For the Respondent:

Anju Sharma, Counsel

Court Reporters: HEARD by Videoconference:

Breanna Clancy Cindi Adalath September 9-12, 2024

OVERVIEW

1George Jermane, the applicant, was involved in an automobile accident on November 28, 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, CAA Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issue in dispute is:

i. Has the applicant sustained a catastrophic impairment as defined by section 3.1(1)4. of the Schedule?

3The applicant withdrew his claim for an award under Regulation 664 and interest at the beginning of the hearing.

RESULT

4The applicant has not sustained a catastrophic impairment as defined in section 3.1(1)4. of the Schedule.

PROCEDURAL ISSUES

5The respondent’s request to exclude occupational therapist Leah Christie and her report is denied.

6At the start of the hearing, the respondent requested that the applicant’s assessment evidence in connection with a determination of catastrophic impairment be excluded because it does not comply with sections 3.1(1)4. and 45(2) of the Schedule. The respondent raised a challenge to the qualifications, reports, statements of Leah Christie under Rule 10.4 of the Licence Appeal Tribunal Rules, 2023 (“LAT Rule(s)”) in advance of the hearing. The respondent argued, partly, that the assessment or examination does not comply with the Schedule because it was conducted by the applicant’s treating occupational therapist.

7The applicant’s position is that the evidence complies with section 45(2) of the Schedule because Ms. Christie’s role was to assist rather than conduct the assessment. Further, the applicant’s position is that Ms. Christie was not involved in acute care of the applicant, which complies with the recommendation in section 3.1(1)4 of the Schedule, Wilson, J., Pettigrew, L. and Teasdale, G., Structured Interviews for the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale: Guidelines for Their Use, Journal of Neurotrauma, Volume 15, Number 8, 1998 (“GOS-E Guideline”).

8I declined to grant the respondent’s request, made on the second day of the hearing, to exclude the evidence without the opportunity to complete a full hearing. The parties were directed to make arguments with their closing submissions for a determination on what weight should be assigned to this evidence, if any. I will deal with this evidence, as necessary, in my substantive analysis noting that section 15 of the Statutory Powers Procedure Act, R.S.O. 1990 provides that I may admit any evidence so long as it is relevant. Certainly, the testimony of the occupational therapist and her reports relating to a catastrophic impairment determination are relevant because catastrophic impairment is the sole issue in dispute.

ANALYSIS

Background

9The applicant was 61 years old at the time of the accident. He was a helmeted driver of a motorcycle. He approached a curve and was unable to reduce his rate of speed in time to negotiate the curve safely. The applicant rode the motorcycle into some gravel before sliding into the guardrail at the curve.

10The applicant was initially brought to Brampton Civic Hospital by ambulance, where he underwent imaging including computerized axial tomography scans (“CT Scan(s)”) of the head, cervical spine, and chest. The CT Scans of his head and cervical spine were negative. While the CT Scan of his chest identified several injuries, only a traumatic brain injury (“TBI”) is relevant to this hearing for the purposes of deciding the issue in dispute.

11From Brampton Civic Hospital, the applicant was transferred to Sunnybrook Hospital for management of his injuries. He underwent further imaging at Sunnybrook Hospital, including further CT Scans of his head and cervical spine. These scans were also negative. He was discharged December 1st, 2017.

The applicant has not sustained a catastrophic impairment

12The applicant has not sustained a catastrophic impairment as defined by the Schedule in section 3.1(1)4 (“Criterion 4”).

13To be found catastrophically impaired (“CAT”) under Criterion 4, the applicant must prove on a balance of probabilities that he is 18 years of age or older and sustained a TBI as a result of the accident that meets the following two prong Criterion 4 test:

i. the injury shows positive findings on a CT Scan, a magnetic resonance imaging (“MRI”), or any other medically recognized brain diagnostic technology indicating intracranial pathology; and

ii. when assessed in accordance with Wilson, J., Pettigrew, L. and Teasdale, G., Structured Interviews for the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale: Guidelines for Their Use, Journal of Neurotrauma, Volume 15, Number 8, 1998, (“Guideline”) the injury results in a rating of, as argued in this case, Upper Severe Disability, six months or more after the accident.

14The applicant is not relying on any CT Scans or MRI and his age is not in dispute. The applicant’s position is that the requirements of Criterion 4 are satisfied and in support of his position, he offers the following:

i. a clinical diagnosis of a TBI;

ii. positive findings of the TBI as a result of the accident on a brain SPECT scan as concluded by Dr. Siow’s Radiology Consultation Medical Legal Report dated December 19, 2021; and

iii. a rating of Upper Severe Disability, six months or more after the accident, as rated by Leah Christie in her Occupational Therapy Catastrophic Assessment Report dated May 26, 2022.

15The respondent’s position is that the applicant has not satisfied the requirements of the first prong of the Criterion 4 test because a SPECT scan does not qualify as a medically recognized brain diagnostic technology. The respondent further argues that the findings on the SPECT scans are not positive for a TBI as a result of the accident. Further, the respondent’s position on the second prong of the Criterion 4 test is that the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale assessment (GOS-E) was not completed in accordance with the Schedule because it was conducted by an occupational therapist, and that the ratings provided are unfounded.

How much weight should be assigned to the SPECT scans?

16I find that no weight should be assigned to the SPECT scans.

17The applicant’s expert in radiology and nuclear medicine, Dr. Yin-Hui Siow, testified that there is no imaging that can definitively diagnose a TBI and that the current gold standard for TBI diagnosis is a clinical diagnosis. He testified that SPECT scans, in addition to clinical factors, can help paint a complete and true picture for the clinical physician.

18Dr. Siow’s opinion is that the applicant’s TBI shows positive findings on SPECT scans indicating intracranial pathology. Dr. Siow reviewed two SPECT scans of the applicant dated February 20, 2019 and July 24, 2020. Dr. Siow’s conclusions are weakened because these scans do not show the age of the applicant’s injury, do not distinguish between the applicant’s old or new injuries, and do not distinguish between positive findings of a traumatic brain injury resulting from the accident in contrast to other diagnoses. Dr. Siow testified that a number of diagnoses can look the same or similar on a SPECT scan, but that he is able to distinguish between them. However, Dr. Siow’s conclusions are further weakened because he did not explain how he is able to so while others are not. Dr. Siow compared his opinion to the conclusions of others reviewing the same SPECT scans that came to differing conclusions. First, he contrasts his findings with Dr. Mariott and then with Dr. Naeem as follows.

19Dr. Mariott provides a normal report after comparisons of the applicant’s SPECT scans to a normal database containing many scans within a normal range. Dr. Siow testified that this normal database comes at an additional cost and may not be available to everyone that reviews a SPECT scan. Although Dr. Siow was sent a normal database, he did not use it. Dr. Siow compared the applicant’s SPECT scans to an “expected normal” scan to illustrate the difference between them. Dr. Siow testified that the “expected normal” scan is a single scan of one individual pulled from his files to illustrate what an expected normal scan should look like. This approach further weakens Dr. Siow’s conclusions because it compares the applicant’s scans to one handpicked example despite having the ability to compare the scans to a larger database.

20Dr. Naeem investigated the applicant’s SPECT scans and ruled out neurodegeneration, and noted improvement between the applicant’s two SPECT scans. He concluded the findings on the scans were very likely a result of anxiety and post traumatic stress disorder (“PTSD”) symptoms. He also commented that what he viewed in the applicant’s scans is often associated with psychological issues. Dr. Siow stated in his rebuttal report dated May 7, 2023 that “when using brain SPECT to differentiate TBI from a control population of normals, the sensitivity and specificity are 100%. This second scenario applies to Mr. Jermane who has no history of psychiatric illness, PTSD or drug abuse.” This conclusion by Dr. Siow is inconsistent with the applicant’s medical record because the applicant’s records point to a history of psychological issues including PTSD, anxiety, and mention a prior concussion. During cross examination, Dr. Siow admitted that these issues would affect SPECT scans. However, they were not accounted for by Dr. Siow in his report which further weakens his conclusions.

21During cross-examination, Dr. Siow agreed that a diagnosis is different than a prognosis. He accepted that for example, a diagnosis may be a TBI but a prognosis is not TBI, a prognosis may be guarded or poor. The respondent argues that SPECT scans are not a medically recognized brain diagnostic tool but rather may assist in determining prognosis. I do not need to deal with this question because I am assigning Dr. Siow’s evidence regarding the SPECT scans no weight. Even if a SPECT scan is a medically recognized brain diagnostic technology, in this case, I am not satisfied based on the evidence before me that there are any positive findings of intracranial pathology capable of satisfying the first prong of the Criterion 4 test.

22For the reasons above, on a balance of probabilities, the applicant does not meet the definition of catastrophic impairment under Criterion 4. Without meeting the first prong of the Criterion 4 test, the applicant cannot succeed on this application. I therefore do not need to deal with the GOS-E ratings.

ORDER

23For the above-noted reasons, I find that the applicant has not sustained a catastrophic impairment as defined by Criterion 4.