Citation: Taleb v. The Co-operators General Insurance Company, 2024 ONLAT 21-002993/AABS

Licence Appeal Tribunal File Number: 21-002993/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:

Shaymaa Taleb

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Michael Switzer, Counsel

For the Respondent:

David Raposo, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Shaymaa Taleb (“the applicant”), was involved in an automobile accident on August 26, 2018, 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 Co-operators General Insurance Company (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The parties confirmed in their submissions that the applicability of the Minor Injury Guideline was no longer in dispute, and that otherwise, the issues in dispute were as set out in the amended application included with their submissions.

3The issues in dispute are:

1. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

2. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from October 19, 2018 to date and ongoing?

3. Is the applicant entitled to $1,948.25 for occupational therapy services, proposed by Revival Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated December 10, 2019?

4. Is the applicant entitled to $14,023.30 for catastrophic impairment assessments, proposed by Omega Medical Associates in a plan dated August 31, 2020?

5. Is the applicant entitled to $4,843.70 for occupational therapy services, proposed by OT Ontario East in a plan dated September 28, 2020?

6. Is the applicant entitled to $1,346.36 ($3,375.00 less $2,028.64 approved) for social work services proposed by Swanson Occupational Therapy Professional Corporation in a plan dated October 14, 2020?

7. Is the applicant entitled to $2,846.50 for physiotherapy services, proposed by Spark Lifecare in a plan dated May 30, 2022?

8. Is the applicant entitled to $1,796.50 for an attendant care needs assessment, proposed by Spark Lifecare in a plan dated July 5, 2020?

9. Is the applicant entitled to $2,079.08 for education expenses submitted on a claim form (OCF-6) on February 26, 2019?

10. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

11. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant has not sustained a catastrophic impairment.

5The applicant is not entitled to non-earner benefits or the treatment plans in dispute.

6The applicant is entitled to the education expenses, plus interest.

7The respondent is not liable to pay an award under s. 10 of Regulation 664.

PROCEDURAL ISSUES

8The applicant seeks an order to exclude supplementary briefs filed by the respondent on August 18, 2022 and August 23, 2022.

9The hearing was originally scheduled to proceed by videoconference commencing September 6, 2022. The Case Conference Report and Order required that all documents that the parties intend to rely on shall be exchanged by July 8, 2022 and evidence filed by August 5, 2022. In the days leading up to the originally scheduled hearing, the applicant filed a Notice of Motion dated August 18, 2022, seeking an order to compel documents of the insurer’s examination (“IE”) assessors at DFSI and an order excluding all oral and written evidence of the IE catastrophic assessors.

10The motion was scheduled to be heard at the videoconference hearing. The hearing was subsequently converted to a written hearing on consent. Because the matter was converted to a written hearing, the motion did not proceed.

11The applicant maintains that the supplementary briefs should be excluded due to late service and filing. The applicant further seeks to exclude catastrophic assessment reports of Sherry Mosher-Taillefer, Dr. Sivasubramanian, Dr. Khan, and Dr. Stewart, because she made request to the facility (DFSI) on April 14, 2022 for draft reports, notes, raw test data, emails etc., and was not satisfied with the response received.

12The respondent submits that it would be highly prejudicial to exclude evidence of the catastrophic assessors, particularly when it had no control over the IE facility. The respondent notes that the applicant could and should have requested any further documents contained in DFSI’s file much earlier, that it provided authorization forms for the files of DFSI on October 21, 2021 and the forms were never returned.

13I decline to exclude any of the evidence. The videoconference hearing was adjourned and converted to written hearing, so there was no prejudice to the applicant in any late filing of evidence in advance of the originally scheduled hearing. The respondent’s evidence was served within the timelines for the written hearing, set out in the Order of Vice-Chair Lake dated September 1, 2022. Further, it would be highly prejudicial to the respondent to exclude the catastrophic assessment reports, when it does not have control over the IE facility. To the extent that there may have been any further relevant information in DFSI’s file, the applicant could have continued to seek an order for productions, which she did not.

BACKGROUND

14The applicant is currently 45 years old. Her pre-accident history is significant.

15She was born in Iraq and moved to Syria in 2006 due to the war. She experienced trauma in her country of origin, including the murder of her brother. She came to Canada from Iraq in 2011. She was treated for thrombocytopenia and underwent a splenectomy in 2013. She has been a recipient of the Ontario Disability Support Program (ODSP) since 2012.

16In 2014 the applicant’s husband was involved in a motor vehicle accident, for which she also claimed accident benefits with TD Insurance for psychological injuries. An OCF-1 dated January 12, 2015 indicates that she was suffering from stress, anxiety, and depression as a result of her husband’s behavioural changes. She underwent an insurer’s examination at the request of TD insurance with Dr. Schmidt. In his report, dated June 21, 2016, Dr. Schmidt diagnosed the applicant with post-traumatic stress disorder likely exacerbated by pre-accident factors, major depressive disorder, and adjustment disorder with anxiety and depressed mood, all related to the 2014 MVA.

17The applicant also underwent an occupational therapy in-home assessment with Ms. Beshay in relation to the TD accident benefits claim. In the report dated November 25, 2016, Ms. Beshay noted that the applicant presented with significant symptoms of low mood, low motivation, fatigue, reduced concentration and reduced tolerances. The applicant had difficulty managing her personal tasks and reported feeling generally overwhelmed. Ms. Beshay concluded that the applicant’s impairments negatively impacted her ability to engage in basic activities of daily living and her social interaction and relationships with family and friends. The applicant sought treatment with psychologist Dr. Tammi Ricci. A progress report by Dr. Ricci dated May 2, 2016 indicates that the applicant presented with an adjustment disorder with primarily depressed and anxious mood, post-traumatic stress disorder features, reduced psycho-social functioning and sleep and appetite disruption. She is noted to have significant difficulty coping and is overwhelmed. In June 2017 the applicant settled her accident benefits claim for $14,000.00.

18The applicant worked as a chef in a restaurant from approximately 2015 to 2016. She has not been employed since. She and her husband divorced in 2016. The applicant’s 17-year-old son died in a car accident in April 2017, and she advanced another claim for accident benefits with Travelers Insurance for psychological impairments. The accident benefits file from Travelers was unavailable. However, included in the family doctor’s file are two disability certificates pertaining to the claim with Travelers, dated July 7, 2017 and May 1, 2018. Therein the applicant is diagnosed with depression and anxiety, and is noted to have a substantial inability to perform her pre-accident employment, caregiving and housekeeping and that she suffers a complete inability to carry on a normal life.

19In January 2018 the applicant enrolled in an English course for academic purposes, with the intention of pursuing a paralegal course. The subject accident occurred during the two-week semester break in August 2018.

20The clinical notes and records of the family doctor document a long-standing history of pain, depression, anxiety, PTSD and panic attacks. In the months leading up to the accident, the records indicate that the applicant was missing days from school, experienced repeated panic attacks requiring emergency room visits, and was experiencing anxiety and depression.

21Despite the foregoing, in her affidavit the applicant indicates that by the time of the August 2018 accident she was “well recovered from my previous psychological distress and was the happiest time of my life”.

ANALYSIS

Catastrophic Impairment

22Pursuant to section 3.1(1)(8) of the Schedule, an impairment is catastrophic if, in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”), results in a class 4 (marked) impairment in three or more areas of function that precludes useful functioning or a class 5 (extreme) impairment, due to mental or behavioural disorder.

23Per chapter 14 of the Guides, there are four spheres of functioning that are considered in evaluating mental or behavioural impairment. The applicant bears the onus to prove, on a balance of probabilities, that as a result of the accident she sustained a marked impairment in three or more domains or one extreme impairment.

24Impairments are classified according to how seriously they affect a person’s useful daily function in four broad, overlapping, activity categories, or “domains” using word descriptions in a five category scale that ranges from no impairment to extreme impairment. It is not the category label that has to be assessed, but rather the language in the descriptions. Each of the four domains of functioning, classes of impairment, and rating criteria are set out in the following table from Chapter 14 of the Guides at page 301:

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
Adaptation

25The applicant underwent multidisciplinary catastrophic assessments with Omega Medical in March 2021, including a physiatry assessment, occupational therapy evaluation, and a psychological assessment. Dr. Lisa Becker prepared a clinical summary report and an OCF-19 Determination of Catastrophic Impairment (dated July 21, 2021), which indicates that the applicant met criteria 8, having sustained three class 4 impairments, per the conclusions of the psychologist from Omega, Dr. Kanagaratnam.

26The applicant subsequently underwent IE catastrophic assessments with DFSI’s psychiatrist Dr. Sivasubramanian, and occupational therapist Ms. Mosher-Taillefer. They concluded that the applicant had not sustained a catastrophic impairment.

27The assessors assigned the following impairment ratings:

Sphere	Omega Dr. Kanagaratnam	DFSI Dr. Sivasubramanian
Activities of Daily Living	Class 4	Class 2
Social Functioning	Class 3	Class 1
Concentration, Persistence, and Pace	Class 4	Class 2
Adaptation	Class 4	Class 2

28Both assessors agree that the applicant does not have a class 4 marked impairment in the sphere of social functioning, nor does she have a class 5 extreme impairment. Therefore, in order to be deemed catastrophically impaired, the applicant must establish that she has a class 4 impairment in the spheres of activities of daily living, concentration, and adaptation as a result of the accident.

29I find that the applicant has not sustained a catastrophic impairment.

30Dr. Kanagaratnam (report dated March 16, 2021) diagnosed the applicant with major depressive disorder single episode, moderate to severe with psychotic features; somatic symptom disorder with predominant pain, moderate to severe; and other specified trauma and stressor-related disorder.

31To Dr. Kanagaratnam, the applicant reported an unremarkable pre-accident health history, and said that she was physically healthy. When Dr. Kanagaratnam referred to the medical records to verify the information about her pre-existing mental health issues, the applicant mentioned the death of her son, that she participated in grief counselling, and was not taking any regular prescription medication.

32The applicant’s scores on the Personality Assessment Inventory (“PAI”) indicate that although the test was valid, it may likely overrepresent the extent and degree of significant test findings in certain areas. Her score on the M-FAST (a measure designed to provide information regarding the probability of pretending or exaggerating psychiatric illness) was at cut off, suggesting possible malingering of mental illness. Despite that, the assessor found that it was likely due to language or interpretation issues or cultural factors.

33Dr. Kanagaratnam noted that while the applicant’s records and subjective data indicated a history of psychological stressors, she appeared to have been functioning relatively well prior to the subject accident. Therefore, while her pre-accident mental health may have made her more vulnerable to the effects of the accident, she believed that the evidence suggests that, in her opinion, the applicant would not be experiencing the breadth and severity of her current psychological symptoms and associated impairments if not for the accident. Dr. Kanagaratnam offered the diagnoses noted above and opined that the applicant appeared to evidence a severe impairment in functioning as a result of psychological factors.

34I’m not persuaded that Dr. Kanagaratnam sufficiently considered the applicant’s pre-accident impairments in coming to her impairment ratings. The applicant was prescribed Lorazepam just a few months prior to the accident after going to the ER for panic attacks. In May 2018 she reported ongoing panic attacks and missing days from school; she was again prescribed Lorazepam, and Prozac was added. The family doctor completed an OCF-3 just months prior to the accident diagnosing depression and anxiety resulting in a complete inability to carry on a normal life and a substantial inability to complete her housekeeping, although it appears that Dr. Kanagaratnam did not review this document, while Dr. Sivasubramanian did. There are limited post-accident records from the family doctor, but they do not suggest any worsening of the applicant’s pre-accident psychological symptoms. No prescription summary was provided to indicate the frequency or duration of any of her prescription medications, or whether the dosages increased post-accident, although I note that they were made available to all of the catastrophic assessors. Further, the applicant denied any pre-accident health history until she was referred to the medical records, and then seemingly downplayed her pre-accident psychological impairment to Dr. Kanagaratnam.

35Accordingly, I’m not persuaded that Dr. Kanagaratnam’s report accurately captures the level of pre- or post-accident psychological impairment.

36I prefer Dr. Sivasubramanian’s report, as he notes that she had a longstanding history of significant mental health concerns. He noted that the applicant denied any pre-existing medical conditions other than indigestion and headaches, which differed from the information in the clinical notes and records. He found that the applicant experienced a relatively mild worsening of her pre-existing adjustment disorder with panic attacks. She also described signs and symptoms of specific phobia, but with some degree of impairment but minimal avoidance. Dr. Sivasubramanian also opined that she had developed a somatic symptom disorder, but it was unclear if it pre-dated the subject accident. He noted that she had been diagnosed with major depressive disorder in the past, and the medical evidence showed that her mental health had been deteriorating. Dr. Sivasubramanian noted that treating psychologist in late 2016 found that she suffered a complete occupational impairment as a result of mental health difficulties that were worsening over time. The applicant subsequently dealt with the loss of one of her sons. Despite her difficulty, she was able to return to her program online and completed it in 2020. Dr. Sivasubramanian noted that the applicant continued to struggle with her surviving son’s behaviour since the loss of his sibling. He was reportedly violent and destructive within the home, to the point where in the two months prior to the assessment she was forced to move into a shelter and give up her dog. He noted that this was a source of significant distress, and as such, but for the accident, he felt that her current level of impairment of function would largely still exist.

37I find Dr. Kanagaratnam’s conclusion in her addendum report that the applicant was functioning relatively well prior to the accident, which was based on the applicant’s subjective reports, is not consistent with the medical information on file. The applicant denied the existence of her pre-accident conditions until confronted with them by Dr. Kanagaratnam. Dr. Kanagaratnam is critical of Dr. Sivasubramanian’s approach in considering the applicant’s pre-accident impairment, and suggests that, in retroactively diagnosing the applicant, he appears to have place undue emphasis on her pre-accident trauma. However, this approach is consistent with the AMA Guides, which indicates that assessors are directed to estimate pre-existing impairments and subtract same from present impairments in their analysis. Further, it appears that Dr. Kanagaratnam did not review the June 2016 report of Dr. Schmidt, in which he diagnosed post-traumatic stress disorder, major depressive disorder, and adjustment disorder with anxiety and depressed mood, or the diagnosis of depression and anxiety by the family doctor in the May 2018 OCF-3.

38According to Dr. Sivasubramanian’s report, the applicant continued to drive independently (consistent with her evidence at the Examination Under Oath), that she would drive to the grocery store or coffee shop, she would visit her cousin and attend appointments. She reported anxiety in a vehicle and feeling hypervigilant. She independently managed her medications and finances. Despite struggling with a number of unrelated psychosocial stressors before and after the subject accident and despite her symptoms she managed to complete her college program. Dr. Sivasubramanian correctly notes that in the months leading up to the accident the applicant was experiencing panic attacks to the point where she was missing days from school.

39When taken together, given the applicant’s significant and longstanding pre-existing conditions and post-accident stressors, I am not persuaded that, as a result of the accident, the applicant sustained a class 4 (marked impairment) in all spheres of activities of daily living, concentration, and adaptation. At most, I find that the applicant was experiencing a Class 3 (moderate impairment), with respect to activities of daily living and adaptation. Her impairment levels are compatible with some, but not all useful functioning. Having found that the applicant has not sustained a class 4 impairment in at least three spheres of function, it follows that she does not meet the threshold for catastrophic impairment.

Non-Earner Benefits

40Section 12 provides that an insurer shall pay an NEB to an insured who sustains an impairment as a result of an accident and suffers a complete inability to carry on a normal life as a result of that accident within 104 weeks. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (CanLll) (“Heath”), which focuses on a comparison of the applicant’s pre-and post-accident activities.

41Section 12(3)(a) and (c) further state that the insurer is not required to an NEB for the first four weeks after the onset of the disability or for any period more than 104 weeks after the accident.

42The applicant also relies on her own affidavit and of her two daughters in support of her position, and two disability certificates.

43I am not persuaded, on a balance of probabilities, that the applicant sustained a complete inability to carry on a normal life as a result of the accident.

44Prior to the subject accident, the family doctor completed a disability certificate dated May 1, 2018, and indicated that she had a complete inability to carry on a normal life due to severe anxiety and depression as a result of having lost her son in the April 2017 accident.

45The applicant’s first disability certificate pertaining to this accident is dated October 17, 2018, diagnoses sprain/strain type injuries and indicates that she did not suffer from a complete inability to carry on a normal life.

46The second disability certificate in relation to the subject accident, dated April 21, 2021, was completed by the family physician, Dr. Abdulkarim and opined that the applicant suffered a complete inability to carry on a normal life. Notably, this disability certificate was completed after the two-year eligibility period to receive NEBs.

47I find the affidavits self-serving and unsupported by the evidence. The affidavits suggest that the applicant was “happier than ever” before the accident, that she was independent with all meal preparation, housekeeping, personal care, and engaged social activities prior to the accident. The affidavits largely ignore the other evidence regarding her pre-accident conditions and impairments. I cannot reconcile the affidavits with the evidence that shows she had significant impairments prior to the accident, such that only three months prior to the subject accident, her family doctor already found that she had a complete inability to carry on a normal life and was unable to complete housekeeping.

48The evidence shows that the applicant was already in receipt of ODSP for a number of years prior to the accident, and had significant impairments including panic attacks interfering with her activities of daily living as reflected in the clinical notes and records, as well as the OT assessment of Ms. Beshay.

49The applicant was assessed by Dr. Maida, physiatrist, on January 13, 2020, who noted that the applicant herself reported independence with all aspects of her self-care with only minor difficulty with bathing and dressing, but was able to complete all of her activities of daily living independently with pacing and modified techniques. She reported needing assistance with cleaning, laundry and cooking, but that she was occasionally able to complete those tasks independently with pacing.

50During the EUO, the applicant testified that, after the subject accident, she was able to do some light cooking with her daughters, but they did most of the cleaning. She did some light grocery shopping by herself or accompanied her daughters. She continued to drive and pay her bills. She felt tired and had difficulty attending class in the fall semester after the accident, and failed the course. She returned to school and finished the program in 2019 or 2020.

51In light of the foregoing, I am not persuaded, on a balance of probabilities, that the applicant sustained a complete inability to carry on a normal life as a result of the accident.

52I note that the second disability certificate was completed after the two-year eligibility period to receive non-earner benefits. Non-earner benefits are not payable for more than 104 weeks after the accident.

53To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant made no submissions as to the reasonableness and necessity of the treatment plans in dispute, but rather incorrectly states that she continued to be subject to the MIG. The treatment plans in dispute were initially denied on the basis that her injuries fell within the MIG. The applicant was subsequently removed from the MIG. I find that she has not met her evidentiary burden to establish entitlement to the disputed treatment plans.

Education Expenses

54The applicant was enrolled in an English course at a college and claims $2,079.08 for her fall tuition. I find that the applicant is entitled to the education expenses.

55Section 21 of the Schedule provides that an insurer shall pay for lost educational expenses incurred by an insured person who sustains an impairment as a result of the accident if the insured person is unable to continue the program in which they were enrolled.

56The applicant submits that, while she attempted to continue with her program after the accident, she was unable to physically attend classes or complete the coursework, so she stopped attending and did not receive a refund of her tuition.

57The respondent denied the expense by letter dated February 26, 2019, noting that that the semester began on September 4, 2018, so she had sufficient time to withdraw from the program, and further, that the initial application for benefits indicates that she was able to return to school after the accident. In fact, on the initial application both the “yes” and “no” boxes were checked off with respect to her ability to return to school.

58The disability certificate dated October 17, 2018 indicates that the applicant was unable to continue her education program, and it was too late to withdraw. The OCF-24 report dated December 6, 2018 notes that the applicant had not returned to school since the accident. A series of emails between the applicant and the adjuster was in December 2018 indicates that the applicant failed her course because she could not attend regularly. According to the psychological assessment by Dr. Frey (dated February 18, 2020), the applicant tried to return to class but found she could not sit for long periods so she stopped going in November 2018 and missed her exams. A letter from the college indicates that the applicant was registered as a full-time student for the fall term, which commenced on September 4, 2018 and finished on December 21, 2018, and that the balance owing for the term is $2,079.08.

59I am persuaded, on a balance of probabilities, that the applicant was unable to continue with the program as a result of the accident, and is therefore entitled to the education expenses, with interest payable in accordance with s. 51 of the Schedule.

Award

60The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant submits that she is entitled to a special award with respect to all medical and rehabilitation denied because the respondent maintained its position that she was subject to the MIG, and she was therefore not able to participate in physiotherapy and occupational therapy treatment. As noted above, the applicant is mistaken, she was removed from the MIG in 2022.

61The applicant submits that she should also be granted a special award for other unspecified benefits, including housekeeping and case management services, that she would have been entitled to because the respondent should have accepted that the applicant was catastrophically impaired.

62I find no basis for granting an award under Regulation 664. The applicant was removed from the MIG as the respondent continued to adjust the claim in good faith and consider new medical information as it became available. Further, no award under Regulation 664 is payable for hypothetical benefits that are not in dispute, such has housekeeping benefits and case management services.

ORDER

63The applicant has not sustained a catastrophic impairment.

64The applicant is not entitled to non-earner benefits or the treatment plans in dispute.

65The applicant is entitled to the education expenses, plus interest.

66The respondent is not liable to pay an award under s. 10 of Regulation 664.