Harper v. Intact Insurance Company, 2024 CanLII 108230

Licence Appeal Tribunal

Citation: Harper v. Intact Insurance Company, 2024 ONLAT 22-002931/AABS Licence Appeal Tribunal File Number: 22-002931/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:

Kevin Harper Applicant

and

Intact Insurance Company Respondent

Decision

Adjudicator: Kate Grieves

Appearances:

For the Applicant: Purva Vaidya, Counsel

For the Respondent: Christine McKenna, Counsel

Heard by Videoconference: July 17, 18, 19, 21, and 24, 2023

Overview

1Kevin Harper, (the “applicant”) was involved in an automobile accident on July 11, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). K.H was denied benefits by Intact Insurance Company (“Intact”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2This hearing took place over five days before another adjudicator. For reasons beyond the Tribunal’s control, the adjudicator was unable to complete the decision. With the consent of the parties, the decision was completed by the undersigned, upon review of the transcripts of the hearing and the exhibits filed.

Preliminary Issue

3The preliminary issue to be decided is:

i. Whether the applicant is barred from receiving an income replacement benefit pursuant to s. 31 of the Schedule, because he knew or ought to have known that the vehicle was stolen at the time of the accident?

Substantive 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 an income replacement benefit in the amount of $400.00 per week from February 8, 2021 to the date he started full time work?

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

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

v. Is the respondent entitled to costs?

Result

5The applicant is barred from receiving an income replacement benefit pursuant to section 31 of the Schedule.

6The applicant has not sustained a catastrophic impairment as a result of the accident.

7No interest or award is payable.

8The respondent is entitled to costs in the amount of $300.00.

Procedural Issues

9The applicant’s testimony was excluded from the hearing by the original adjudicator. The applicant attended the first day of the hearing and completed his examination in chief. The applicant was also subject to a summons and was supposed to return the following day for cross-examination, but did not. A further opportunity was given for him to return on day 3, which he did not. Nor was a credible explanation provided for his non-attendance. Given the lack of explanation for his non-attendance the adjudicator ordered that his testimony was excluded.

Analysis

Background

10At the time of the accident, the applicant was one of three occupants seated on the bench of a stolen truck. Ethan was driving the truck, the applicant’s girlfriend, Jessica, was seated in the middle, and the applicant was seated on the right. All three occupants were impaired by methamphetamine at the time of the accident. The truck accelerated through a stop sign at high speed and t-boned another vehicle. The truck caught fire, and the driver of the other vehicle passed away as a result of the accident.

11The applicant was airlifted to hospital. He sustained fractured ribs, sternum, both bones in his right forearm, and injury to the nerves in his right thigh. His arm fractures required surgical repair. He was later diagnosed with a hernia that was attributed to the accident, that was treated with surgery in 2019.

Preliminary Issue

12The respondent submits that the applicant knew or ought to have known that the vehicle was stolen at the time of the accident. Pursuant to Section 31(1)(c), an insurer is not required to pay an income replacement benefit in respect of an occupant of an automobile at the time of the accident who knew or ought reasonably to have known that the driver was operating the automobile without the owner’s consent.

13Therefore, I must determine:

i. Was the driver was operating without the owner’s consent? If yes, then

ii. Did the applicant know or ought reasonably to have known that the vehicle was being operated without the owner’s consent?

14The answer to the first question is clear: the truck was reported stolen by the owner the night before the accident. Ethan was charged with possession of the stolen truck after the accident.

15I am persuaded that, on a balance of probabilities, the applicant knew or should have known at the time of the accident that the truck was stolen, and therefore it was being operated without the owner’s consent.

16Three police officers who were involved in the investigation testified at the hearing. No charges were laid against any of the occupants for stealing the vehicle. Ethan was charged with having possession of the stolen truck, but the police were unable to establish who was actually responsible for the theft. It is not for me to determine who was responsible for the theft.

17In recorded statements to police, both of the other occupants reported that they knew that the truck was stolen. A significant portion of the evidence involved the circumstances surrounding the theft of the vehicle however it does little to assist in determining the preliminary issue.

18The applicant’s evidence about his involvement with the stolen truck and what occurred the night before the accident was inconsistent with respect to where he was, who he was with, and at what time. During his statement with investigators five days after the accident, initially he stated that he was working on July 10 and then went home, then later he contacted Ethan to get drugs, and that Ethan picked him up late at night. His story changed to he went home after work with his dad, and then went to Jessica’s house until around 10:00, and then got a ride home but could not recall how he got “from A to B”. He had Ethan pick him up early in the morning around 6:30 a.m. and then he was going to get Jessica. Apparently, Ethan was going to drop him off at work, and Jessica at her home. The applicant then abruptly terminated the interview with police regarding what occurred the night the truck was stolen, in the hours leading up to the accident. The applicant’s inability to recall what occurred the night before the accident overlaps with the time that the truck was stolen.

19I question the veracity of the applicant’s evidence at the examination under oath. He testified at the examination under oath that Ethan picked him up the morning of the accident around 7:00 a.m. after he called Ethan to give him a ride to work.

20Given the fact that both other occupants reported to police that they knew the truck was stolen, the fact that the driver reported that he had gotten the stolen truck from the applicant, and given the applicant’s differing accounts regarding when and how he came to be in the stolen truck, his evasive evidence to police during questioning, I find it is more likely than not that the applicant knew that the truck was stolen.

21The respondent is not liable to pay an income replacement benefit pursuant to section 31(1)(c) of the Schedule because the applicant was an occupant of an automobile at the time of the accident who knew or ought reasonably to have known that the driver was operating the automobile without the owner’s consent.

Catastrophic Impairment

22The applicant was assessed for both a criterion 7 and criterion 8 impairment, but both parties’ assessors agreed that the applicant did not meet the threshold under criterion 7. Therefore, I have limited my analysis to criterion 8.

23The onus is on the applicant to demonstrate that he sustained a catastrophic impairment as a result of the accident. To do so pursuant to criterion 8, he must show that two years have elapsed since the accident and that he suffers from an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (“the AMA Guides”), results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning, due to a mental or behavioural disorder.

24The assessment pursuant to criterion 8 excludes consideration of any physical impairments and is based solely on mental and behavioural disorders. Impairments are classified according to how seriously they affect a person’s useful daily function in four broad, overlapping, activity categories, or “domains” using 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 AMA Guides:

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 Social Functioning Concentration Adaptation

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

25The 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.

26The applicant relies on the psychiatry assessment by Dr. Emily Gavett-Liu and the occupational therapy assessment by Mr. Julian Amchislavsky. In her report dated May 24, 2021) Dr. Gavett-Liu diagnosed the applicant with amphetamine use disorder (longstanding with relapse after the accident due to accident-related stress), and post-traumatic stress disorder. She concluded that the applicant sustained a moderate impairment with respect to activities of daily living domain and marked impairments in the remaining three domains: social functioning; adaptation; and concentration, persistence and pace.

27The respondent relies on the psychiatry assessment of Dr. Velan Sivasubramanian, and the occupational therapy assessment of Ms. Elyse Freedman. In his report dated February 17, 2022 Dr. Sivasubramanian concluded that the applicant sustained no impairment in any of the four spheres as a result of the accident. He found that the applicant had a longstanding history of significant substance abuse issues, and while he reported being “clean” for a year prior to the accident, most of that time was while he was incarcerated or in a residential program, and that medical records showed he had relapsed into methamphetamine use prior to the accident. Dr. Sivasubramanian noted that the applicant was describing signs and symptoms consistent with specific phobia (passenger anxiety) but there was minimal avoidance.

28Having considered all of the evidence before me, I am not persuaded that the applicant sustained a catastrophic impairment pursuant to criterion 8.

29I prefer Dr. Sivasubramanian’s report to that of Dr. Gavett-Liu, as it is more consistent with the bulk of the evidence. Mr. Amchislavsky based his report largely on the applicant’s self-reports. In turn, Dr. Gavett-Liu relied on Mr. Amchislavsky’s report in conducting her criterion 8 analysis. Therefore, their reports are only as accurate as the information the applicant relayed to them.

30The occupational therapy assessment with Mr. Amchislavsky took place on April 7, 2021. The applicant reported feeling stress and anxiety as he was unable to perform a large portion of his pre-accident activities of daily living. He reported feeling very stressed about going into the city, he felt that others look at him as though he was responsible for the other driver’s death even though he was not the one driving. He reported feeling like an outcast, that he had lost his entire social circle. He reported feeling sad, with thoughts running back and forth in his head.

31According to the report, the applicant was noted to be independent with sitting, standing, walking, kneeling/squatting, and balance, and was able to complete all transfers. He had limitations with medium to heavy lifting, carrying, pushing and pulling due to ongoing pain in his right wrist. Mr. Amchislavsky did not record what activities the applicant demonstrated. Mr. Amchislavsky testified that he did not ask the applicant to perform a series of tasks, he simply observed the applicant outside of his home for a time, watched him complete the cognitive questionnaires, and attend the community assessment. He extrapolated from what he observed during the assessment what activities the applicant was able to perform.

32Mr. Amchislavsky administered two cognitive assessments to evaluate the applicant’s memory and concentration: the test of everyday attention and the Rivermead behavioural memory test (third edition). During his examination in chief, Mr. Amchislavsky testified that the applicant presented with memory in the normal range, but that attention and concentration “wasn’t the greatest,” and that his overall score revealed some mild impairment. Despite the foregoing, in his report Mr. Amchislavsky concluded that with respect to concentration persistence and pace, the applicant was moderately limited with respect to: maintaining attention and concentration for extended periods; understanding, remembering and carrying out simple and detailed instructions; planning and organizing task completion, keeping track of activity process; performing at a consistent pace without an unreasonable number of unreasonably long rest periods; multitasking; task initiation and completion for structured, concrete and pre-planned activities. He also concluded that the applicant was severely limited with respect to task initiation and completion for less structured tasks. He attributed that applicant’s limitations due to exacerbation of pain largely with respect to his right wrist. Similarly, with respect to work adaptation, Mr. Amchislavsky found that the applicant was moderately limited with respect to many of the tasks, due to attention and concentration difficulties, pain, and limited bilateral upper extremity function. I find Mr. Amchislavsky’s conclusions inconsistent with his own testing that reportedly revealed normal range for memory and a mild impairment with respect to attention and concentration.

33With respect to activities of daily living, the applicant reported that he worked full time at a slaughterhouse 40 hours a week since he was 13 years old, but was unable to work since the accident due to pain in his arm. He reported that prior to the accident, he shared all of the housekeeping tasks including cleaning, laundry, shopping and meal preparation, as well as exterior tasks. The applicant reported that now he was able to “get things done” but not the heavy tasks due to pain in his wrist. He estimated that he completes 30% of his pre-accident tasks. He reported that prior to the accident he enjoyed socializing with family and friends, having barbeques, biking, playing sports and throwing the ball with his children. At the time of the assessment, he would throw the ball with his left arm instead, could not really do any sports and could not pick up his children with his right arm.

34Mr. Amchislavsky opined that the applicant was severely limited with respect to relating to others, that he stayed home most of the time, and no longer socialized. He was reportedly discouraged due to feeling persecuted, and was socially isolated in a rural location, worsened due to the small scale of the community.

35However, the evidence (including the record of employment and correctional records) shows that the applicant was not working full time prior to the accident, and he had multiple periods of incarceration and stays at residential treatment facilities. Mr. Amchislavsky conceded during his testimony that this history would have been relevant to his analysis. Similarly, Mr. Amchislavsky was not aware that the applicant was on house arrest at the time of the accident. In my view, it would be difficult to accurately assess the applicant’s baseline social functioning pre-accident without this information because his social interactions would have been reduced. Mr. Amchislavsky did not discuss the applicant’s relationships with his parents pre- or post-accident, nor his spouse, or children apart from the fact that he can’t play with them as much. Mr. Amchislavsky did not include an appendix of any documents reviewed, nor did he provide a summary or list of documents reviewed within the report. There is no notation or narrative around the history of the accident, any recovery or treatment to date, nor any personal history, such as the fact that he had a grade 9 education. Mr. Amchislavsky conceded during his testimony that the applicant’s level of education would impact his test results. There is no mention of the applicant’s addiction issues in the report. Further, he did not inquire whether there was any history of issues with attention, concentration, or memory prior to the accident.

36Mr. Amchislavsky arranged for a community assessment whereby the applicant was to shop for a list of items at a local grocery store. The applicant arrived at the store and began shopping and then reported “I can get all of this done, I can go through the list, but I just feel very uncomfortable being here” and then terminated the test. Mr. Amchislavsky testified that it was probably because the applicant was feeling persecuted, feeling like an outcast and not wanting to go into town as he had said earlier in the interview. However, he did not ask the applicant why he was feeling uncomfortable or why he terminated the test. In my view, Mr. Amchislavsky’s report emphasizes the applicant’s inability to complete the community task due to purported feelings of persecution. Mr. Amchislavsky testified that was the “major thing about his presentation” and opined that he was feeling persecuted. To me, that was speculative since he did not make any further inquiry as to why the applicant was uncomfortable or why he terminated the test.

37There is no indication in the report as to how long Mr. Amchislavsky spent evaluating the applicant. There is no indication how long it took for the applicant to complete any of the cognitive tests. According to Mr. Amchislavsky’s testimony, it would probably take “a couple hours”, and he would have noted if the applicant had requested any breaks. Given that none were noted in the report, I assume that the applicant was able to persist to complete a couple of hours of cognitive testing without a break. There is also no information about how the applicant got to the store to do the community assessment, what was observed while he was completing the task at the store, or how long he was in the store before he terminated the test. In terms of his physical function, there is no record of the tasks the occupational therapist asked him to perform.

38Taken together, I find the discrepancies in the report and the gaps in information provided render the conclusions reached by Mr. Amchislavsky unreliable. I therefore give the report little weight.

39I give greater weight to the insurer’s occupational therapy assessment, completed by Elyse Freedman on September 22, 2021. It is significantly more comprehensive. An extensive list of documents was reviewed by Ms. Freedman, identified in the appendix, and she included a summary of both pre- and post-accident documents. Ms. Freedman included a description of the accident, the injuries the applicant sustained, as well as a summary of his treatment to date. The applicant reported that he initiated physiotherapy in 2019, but only attended a couple of times and then decided to do the exercises at home. He had not had any formal treatment since 2019. He had 12 sessions of psychotherapy about a year earlier, to help him cope with the passing of his ex-girlfriend who died from cancer a year after the accident.

40The applicant described his mood as blank and stated that he no longer socializes. He felt anxious when he went into town, feeling that people look at him the same way as the driver who caused the accident. He reported that he suffered from social anxiety, believing people judged him. He also reported passenger anxiety in a vehicle. Cognitively, the applicant denied memory problems, but reported that he was easily distracted, his concentration was poor, and he ruminated about the accident.

41The applicant told Ms. Freedman that he had been clean for 8 months prior to the accident as he had been to rehab, but the accident triggered something and he began using methamphetamine for pain. He reported having returned to treatment a few months prior to this assessment and had been clean since. Ms. Freedman noted the family doctor’s records indicate that he had already reported that he was using drugs again a couple days prior to the accident. Further, the applicant’s report is inconsistent with the evidence of the other occupants that they were using meth just prior to the accident, and the fact that he admitted to police during the recorded interview just a few days after the accident that he had resumed using meth again for the last three months.

42The applicant reported to Ms. Freedman that his mental health history was unremarkable, and reported that he was healthy. Ms. Freedman noted the multiple clinical notes and records documenting a history of generalized anxiety and depression, poor sleep, and medications for his mental health prior to the accident.

43Ms. Freedman provided a detailed summary of the applicant’s pre-accident and post-accident activities including personal care, housekeeping, childcare, work, community management/travel, social/recreational activities, sleep, financial management/banking, and communication. Unlike Mr. Amchislavsky, Ms. Freedman had the applicant demonstrate several tasks like getting in and out of the bathtub, putting on socks, telling her when 15 minutes had elapsed to evaluate his perspective memory, checking the weather for a few days and advising what articles of clothing he would bring. He performed tasks in the kitchen and had to follow sets of instructions.

44Ms. Freedman noted that the applicant had a grade 9 education and was living in a home with his father. She noted the testing completed, that he didn’t require any breaks, and completed the tests within the time allotted. The applicant denied feeling fatigued or stressed after completing the testing. He actually reported an improvement to his mood after the testing so it does not appear that there was any evidence of physical or emotional decompensation.

45On the independent living scale which evaluates memory and orientation, the applicant scored in the high functioning range for all three of the scales: independent living, health and safety and social adjustment. Ms. Freedman administered the FSTAC – a cognition evaluation – which evaluates sustained and divided attention and memory, with interruptions etc. Overall, Ms. Freedman testified that the applicant did “exceptionally well”, with a raw score of 80/105, passing a total of 13 out of 17 tasks. He did demonstrate some difficulty with executive function and organization on the grocery shopping task, but considering his grade 9 education, she opined that he did very well.

46In terms of activities of daily living, Ms. Freedman noted that the applicant continued to be independent and with all of his self care. He demonstrated the physical ability to compete such activities, and denied any issues with motivation or energy to perform them. He continued to attend appointments as required, had no issues remembering appointments and kept a calendar app in his phone. He was able to complete the majority of his housekeeping chores, with some limitations from his wrist and low back. He continued to manage his own finances, and was independent with mobility. He did not drive prior to the accident and continued to rely on his father to drive him to work and take him into the community. He endorsed passenger anxiety since the accident.

47The applicant reported that his sleep continued to remain interrupted. He felt tired in the morning but “once he got going” he felt fine. He reported that prior to the accident he would hang out with friends and get high. He disclosed that he was now working and is clean. He had a new girlfriend for the last two years. He stopped seeing his friends as they were the people he would use drugs with. Overall, the applicant presented with the functional ability to maintain his independence with his activities of daily living. His sleep duress and pain symptoms appeared to limit some of his housekeeping chores at the same frequency as pre-accident.

48With respect to social functioning, the applicant denied a change in relationship with family members. He continued to remain close with his father and spoke to his mother daily. His mother continued to have custody of his children. He denied losing friends since the accident, but no longer saw some of his friends as they were the people he would use drugs with. He was in a relationship with his girlfriend for two years. He denied a change in his relationship with his children, whom he continued to see on weekends. Overall, his current functioning was slightly lower than before the accident. The quality of his relationships appeared to remain the same with family, friends, and his children. He did not appear to have any difficulty regulating his emotions.

49Ms. Freedman noted that with respect to concentration, persistence and pace, the applicant’s scores on testing fell in the high functioning range. He was able to maintain focus during the assessment without breaks, with redirection or repetition of questions, and followed the instructions. He did evidence some issues with executive function and organization, but overall demonstrated intact cognitive domains. He had now returned to work, had a consistent daily routine and did not evidence any issues with motivation. There was no evidence of decompensation during the testing, and neither mood nor pain symptoms limited his ability to participate in the assessment. She opined that he appeared to engage in meaningful and productive day to day activities on a consistent and regular basis.

50Similarly, with respect to adaptation, Ms. Freedman noted that the applicant was attentive and co-operative throughout the assessment, and did not have any difficulty focusing. His scores showed a high level of functioning. He was punctual for the assessment. Despite some ongoing pain symptoms the applicant was able to regularly participate in a consistent and productive daily routine. He returned to his job as a labourer but limited heavy tasks. He denied any problems managing the physical demands of his job, and denied any cognitive issues related to his job. The applicant was able to respond appropriately to changes in his home environment, followed instructions, and demonstrated appropriate communication. He presented with the ability to independently persist and complete tasks as he previously did and did not appear to avoid or withdraw from activities.

51Dr. Gavett-Liu completed her psychiatric examination of the applicant on May 7, 2021. She noted that the applicant had a history of using drugs and legal problems in the past. However, when considering his vocational history, she noted that he had been employed full-time at the slaughterhouse for ten years, and there was no reported history of work-related performance difficulty. This in contrast with the records that show that he was incarcerated in the year prior to the accident, and periods of residential treatment. Dr. Gavett-Liu reviewed pre-accident medical records and noted complaints of anxiety and insomnia, and that he was prescribed Cipralex prior to the accident in 2018. The applicant reported that he was clean at the time of the accident, and only relapsed afterwards. As noted above, a few days after the accident the applicant he told police that he had been using again for the past three months, and the family doctor’s records prior to the accident show that he was using again. Despite the foregoing, Dr. Gavett-Liu concluded that at the time of the accident, the applicant was psychiatrically stable and functioning well in most aspects of his life. The applicant reported having diminished attention, concentration and poor memory since the accident, but no cognitive testing was performed. Dr. Gavett-Liu testified that she relied on the occupational therapy assessment for the cognitive testing, and I find that report unreliable. She noted that he was able to describe his injuries and symptoms without difficulty and his recollection from short-term and long-term memory seemed normal, and he was able to concentrate while completing the assessment.

52Dr. Gavett-Liu opined that the applicant was impaired with respect to maintaining attention and concentrating for extended periods; understanding and carrying out instructions; concentrating during distractions; planning, initiating and organizing task completion etc. According to her report, the applicant had admitted to having used meth the day of this assessment, and Dr. Gavett-Liu conceded during cross-examination that it could have had an impact on his attention, concentration, and memory.

53In contrast, the applicant performed quite well during Ms. Freedman’s occupational therapy assessment that actually evaluated those types of activities.

54I find Dr. Gavett-Liu’s marked impairment rating in social functioning is inconsistent with the evidence. He reported that he no longer had a social life because he “cannot stay in one spot for too long”, and that he has become irritable. This fails to take into account the rest of the sphere, which evaluates the ability to get along with others, such as family members, friends, neighbors, store clerks etc. There is no consideration for the fact that his relationship with his family was good, he continued to live with his father, and saw his children every other weekend, etc. She noted that he interacted and communicated effectively during the assessment, yet somehow equated this with a marked impairment.

55Dr. Gavett-Liu’s conclusion that the applicant’s PTSD caused him to relapse is not accurate. He described a better social life pre-accident than it seems he had in reality. She testified that his using meth as a means of coping reflects poor adaptability to his life, it would be hard to maintain regular attendance at work, and to maintain attention and concentrate if using daily. I agree, however that rests on the assumption that the relapse was triggered by the accident, which the evidence shows it was not.

56Dr. Gavett-Liu testified that she put a lot of weight on the occupational therapy assessment, which for the reasons noted above, I found to be unpersuasive. Dr. Gavett-Liu testified that her ratings would be nil or mild if the difficulty the applicant described was actually present prior to the accident. Dr. Gavett-Liu testified that she relied only on the applicant’s self report with respect to his employment history. She conceded that he wouldn’t have been working if he was incarcerated. She also conceded that the fact that the applicant’s children were in the custody of his mother, and that there was ongoing involvement with children’s aid was relevant to his social functioning and relationships. She testified that indicated a significant level of impairment. All of which predated the accident. Dr. Gavett-Liu agreed that the fact that he was on house arrest from April 2018 until the autumn was not reflected in her report, but would have an impact on his social function. Dr. Gavett-Liu only briefly mentions that he had a girlfriend but does not comment on that relationship at all when evaluating his social function. Dr. Gavett-Liu did not ask him about his periods of incarceration. The employment record dated October 2, 2018 indicates that the applicant only worked 17 of the previous 53 weeks. Dr. Gavett-Liu’s report is based on her assumption that the applicant was “psychiatrically stable and functioning well in most aspects of his life” before the accident. However, the available information shows an individual who saw his children twice a month, had been incarcerated repeatedly, was on house arrest at the time of the accident, had a poor attendance record at work, and had resumed using meth. For those reasons, I am unable to agree with Dr. Gavett-Liu’s conclusions and give her opinion less weight.

57I am persuaded by Dr. Sivasubramanian’s report which more accurately captures the applicant’s presentation. Dr. Sivasubramanian disagreed with Dr. Gavett-Liu’s conclusions and found that the applicant’s substance abuse condition pre-dated the accident. While the applicant reported being clean for approximately a year prior to the accident, Dr. Sivasubramanian noted that at least 9 ½ of those months were in a residential treatment program followed by prison, and the family doctor’s records revealed than the applicant had relapsed prior to the accident. Dr. Sivasubramanian found no limitation in any of the four domains, relying on Ms. Freedman’s report and extensive documentation.

58With respect to activities of daily living, he noted that the applicant was somewhat limited by pain, and complained of poor sleep. Despite that, his energy throughout the day was relatively good, his appetite was intact, he had no difficulty with focus or concentration. He had not lost friends since the accident but stopped seeing the friends he used to use drugs with. He was independent with his personal care, resumed the majority of his housekeeping chores, and continued to prepare his own meals. He continued to spend time with his family. He was now clean, had returned to work, and managed his own finances. I agree this reflects no impairment due to mental and behavioural disorders attributable to the accident.

59Dr. Sivasubramanian noted that the applicant denied a change in his relationships with his family, continued to remain close with his father and talked to his mother daily. He started a new relationship with his girlfriend two years ago. He denied a change in his relationship with his children, and continued to see them on weekends. Taken together, I agree that this does not reflect an impairment in the social functioning domain.

60With respect to concentration, persistence and pace, Dr. Sivasubramanian noted the applicant’s high functioning scores during his evaluation with Ms. Freedman. He noted that the applicant had returned to work, had a consistent daily routine and reported no issues with motivation. He was able to engage in meaningful, productive daily activities on a consistent and regular basis. While the applicant used to engage in maladaptive behaviours to cope with his pain and mood symptoms he was now clean and able to work. I agree, this is consistent with Dr. Sivasubramanian’s conclusion that there was no impairment in this domain.

61I also accept Dr. Sivasubramanian’s conclusion that there was no impairment in the domain of adaptation. The applicant provided a good effort during his occupational therapy evaluation and scored well on testing of his memory and attention. He had returned to his pre-accident job but limited the heavy tasks. He had a consistent productive routine and did not withdraw from activities.

62To me, the insurer’s examination catastrophic assessment reports more accurately capture the applicant’s pre- and post accident level of function.

63According to the applicant’s 2017 tax return, he earned approximately $3,200 in employment income, and $12,000 in 2018. Without full correctional records, it is unclear how much of this may be attributable to his time in prison. However, the tax records do not support that he was working full time prior to the accident. On his application for employment insurance (submitted July 25, 2018), the applicant indicated that he worked less than 22 weeks in the last year. The record of employment dated October 2, 2018 indicates that he only worked 17 weeks. In 2019 he reported business income of $6,500, there is no return for 2020 and in 2021 he earned $11,700.

64Correctional records indicate that the applicant was given referrals to psychiatry dating back to 2014 for depression, anxiety and insomnia. He was prescribed various antidepressant medication including Cipralex, Buspar, Zoloft, Trazodone, and Seroquel over the years, predating the accident. He was incarcerated for periods every year from 2013 to 2018.

65According to counseling records from Choices for Change, the applicant was admitted to the program following a referral by his probation officer for his substance abuse in November 2017 when he reported having over 50 criminal charges largely related to his substance use. He reported having used substances since he was 9 years old, and methamphetamine since he was 15. He had been sober for about five weeks at that point. He was expected to turn himself in to jail in December 2017 for a breach of probation, for which he anticipated serving a three-month sentence. He wanted to continue his treatment during his incarceration. It was noted that he was not working while he was in recovery. He reported he did not want to go back to his previous job as there was a significant amount of drug use among the workers. He reported that his criminal behaviour was largely related to his substance use, and his relationship with his children had been significantly impacted in a negative fashion by his substance use. In October 2018 the applicant contacted the facility again indicating his interest in getting into long term residential treatment, as he was using methamphetamine daily. He reported being incarcerated in 2017 and was hoping to get into treatment to stop his cycle of negative patterns. It doesn’t appear that much came of this, contact with the applicant ceased in December 2018.

66The intake completed on November 2, 2018 included questionnaires evaluating the consequences of his substance abuse. It indicates “none” with respect to memory problems, forgetting, confusion or difficulty thinking, within the past 90 days. He reported minor strains and arguments with respect to his relationships. He reported that he was missing work or showing up late. He reported that he first used methamphetamine at age 14, but had a few clean periods, and had been clean for 8 months out of the past 2 years.

67Records from Spinetec healthcare included a psychological symptom checklist dated August 17, 2020. The applicant did not endorse social phobia, or issues with concentration and memory, nor stress in relationships.

68According to the physiotherapy records, the applicant began treatment in May 2019, only attended twice, and was discharged in December 2019. According to the initial assessment, the applicant had return to work at the meat packing company, on modified hours and duties. He reported feeling okay overall, but could get achy with certain activities.

69The insurer approved a plan for mental health therapy with a social worker, as it was first proposed in August 2020. Its unclear if the treatment was ever incurred, as I was not directed to any notes and records of the approved provider.

70The clinical notes and records of the family physician, Dr. Barb Matthews, document a history of drug use with periods of sobriety and incarceration, as well as anxiety and depression. He was treated with Cipralex

71In April 2017 the applicant reported to Dr. Matthews that he had been clean for a week after going to detox, and was experiencing anxiety. He wasn’t sure what he wanted to do with his life but was considering returning to work. He was on Ontario Works. He wanted to restart Cipralex. He reportedly missed a court mandated counselling appointment in May 2017 and wanted a note indicating that he missed it due to anxiety, which the doctor refused. An entry in July 2017 indicates that he was out on bail, had been clean for three weeks, and was having trouble sleeping. He was restarted on Cipralex.

72Dr. Matthews completed a form for the applicant dated July 14, 2017 regarding his medical history that may impact his care during residential treatment. She noted that he was addicted to meth, and suffered from generalized anxiety and depression, treated with Cipralex since April 2017. She commented that he had longstanding mental health issues, substance issues, and involvement with Children’s Aid.

73In April 2018 Dr. Matthews referred the applicant to see a surgeon. She noted that he his history of drug use and that he needed a vasectomy after having several children who are no longer under his care. His medication list included Cipralex at that time.

74The applicant saw Dr. Matthews a day prior to the accident, on July 9, 2018. He reported that he was on house arrest and using meth again. He reported Children’s aid was involved, and his kids live with his mother. He reported wanting to go to detox, and feelings of sadness and anxiety. He was still taking Cipralex.

75For the foregoing reasons, I am not persuaded that the applicant sustained a marked impairment in at least three of the four spheres of function. In my view, the IE reports of Ms. Freedman and Dr. Sivasubramanian more accurately capture the applicant’s pre- and post-accident function. I agree with Dr. Sivasubramanian, the evidence including the family doctor’s records and the applicant’s own self report to police shows that the applicant’s substance abuse issues predate the accident.

76I do not accept the findings of Dr. Gavett-Liu, and without those findings the applicant cannot meet his onus. Based on all of the evidence, I find that the applicant has not met his onus to prove that he suffered a catastrophic impairment as a result of his accident-related injuries.

Income Replacement Benefits

77Having found that the applicant was an occupant of a vehicle which he knew or ought to have known was being operated without the owner’s consent, the applicant is not entitled to income replacement benefits.

Interest

78Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are owed, it follows that no interest is payable.

Award

79The applicant sought an award under s. 10 of Reg. 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. Having determined that no benefits are payable to the applicant, it follows that I have no basis on which to grant an award due to the respondent unreasonably withholding or delaying the payment of benefits.

Costs

80The respondent requested $1,000.00 in costs pursuant to Rule 19 on the basis that the applicant acted unreasonably, frivolously, vexatiously and in bad faith during the course of this hearing.

81Pursuant to Rule 19.5, the Tribunal must consider all relevant factors including: the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal; whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process; the prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system.

82The respondent submits that the applicant’s conduct amounts to an abuse of process. There was a prior application with respect to IRBs which the applicant withdrew on the eve of a hearing, and then reapplied. To me, withdrawal of an application is not an abuse of process, it is a procedural option open to an applicant. The consequence of withdrawal is that the applicant may face limitation issues.

83The respondent submits that the applicant subsequently initiated this hearing and then did not attend for cross examination, despite being subject to a summons, and no credible explanation was provided. Further, numerous productions were not provided despite being ordered by the Tribunal. The applicant provided various explanations for his non-attendance, and then alleged that his father suffered a fall and required his assistance. However, when asked to provide some evidence of that from the care facility or a doctor’s note, the applicant provided an outdated letter from May 2023 that did not provide a valid explanation.

84I find the applicant’s excuses for his non-attendance for cross-examination were not credible. I agree with the respondent that his behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process, resulting in a full day wasted due to the applicant’s conduct because other witnesses were not available to testify. I find his disregard for the Tribunal’s summons to be serious. The respondent was prejudiced by his conduct, having prepared for cross examination. The applicant’s evidence in chief was struck by the adjudicator for failing to present at the hearing for cross-examination or provide a valid reason for his non-attendance.

85I am mindful that a costs award against an applicant may be seen as a deterrent to individual accessing the Tribunal system. However, on balance, I find that the seriousness of the misconduct resulting in wasted resources warrants an award of costs in this case. This is the kind of misconduct a costs award is meant to deter. Individuals who bring applications and then ignore a summons to witness, resulting in wasted resources, may be subject to a costs award.

86I order that the applicant pay costs in the amount of $300.00.

Order

87The applicant is barred from receiving an income replacement benefit pursuant to section 31 of the Schedule.

88The applicant has not sustained a catastrophic impairment as a result of the accident.

89No interest or award is payable.

90The respondent is entitled to costs in the amount of $300.00.