Citation: Sunnar v. Pembridge Insurance, 2024 ONLAT 23-004037/AABS

Licence Appeal Tribunal File Number: 23-004037/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:

Harmeek Sunnar

Applicant

and

Pembridge Insurance

Respondent

DECISION

ADJUDICATORS:

Ludmilla Jarda Dagmara Szczudlo

APPEARANCES:

For the Applicant:

Harry Steinmetz, Counsel

For the Respondent:

Derek Yap, Counsel

Court Reporter:

Prashanth Thambipillai

HEARD by Videoconference:

June 10, 11, 12, and 13, 2024

OVERVIEW

1Harmeek Sunnar (the “applicant”) was involved in an automobile accident on May 4, 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 Pembridge Insurance (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUE

2The sole issue in dispute is whether the applicant sustained a catastrophic impairment as defined by the Schedule.

RESULT

3For the reasons that follow, we find that the applicant’s impairments do not meet the definition of a catastrophic impairment as defined by the Schedule under Criterion 8.

PROCEDURAL ISSUE

Respondent’s reliance on undisclosed surveillance evidence for impeachment purposes

4During its cross-examination of the applicant, the respondent asked the applicant a series of questions relating to his ability to play golf in May 2024. The respondent then sought to rely on undisclosed surveillance evidence for the purpose of impeaching the applicant.

5The applicant opposed the respondent’s reliance on undisclosed surveillance evidence. He argued that the respondent failed to disclose the surveillance evidence, contrary to the Case Conference Report and Order ("CCRO") released on November 15, 2023, and given the respondent’s non-compliance, it should not be permitted to rely on the surveillance evidence. The applicant also objected to the admission of the surveillance into evidence.

6On reply, the respondent stated that since it was only seeking to rely on the surveillance evidence for impeachment purposes, it was not required to disclose the surveillance evidence in advance.

7Pursuant to Rule 9.4 of the Common Rules of Practice and Procedure, October 2017, if a party fails to comply with any Rules, directions or order with respect to disclosure or inspection of documents or things, that party may not rely on the document or thing as evidence without the consent of the Tribunal.

8In the present case, the parties agreed to exchange documents for the hearing in accordance with the CCRO. The agreed upon timelines were to ensure that the parties had a fair hearing and that no party was surprised by last minute evidence at the hearing. The surveillance evidence that the respondent seeks to rely on was never produced, and its existence was disclosed to the applicant for the first-time during cross-examination. Meanwhile, according to the CCRO, the surveillance evidence ought to have been disclosed by no later than 60 calendar days from the case conference, that is by January 6, 2024.

9It was the respondent’s obligation to comply with the CCRO, and it failed to do so. Further, it ought to have requested relief from the timelines set out in the CCRO and obtained the Tribunal’s consent to rely on surveillance evidence before springing it on the applicant during cross-examination. Pursuant to Rule 9.4, without the Tribunal’s consent, the respondent cannot rely on the surveillance evidence.

10Given the respondent’s breach of the CCRO, it falls within our discretion to determine whether to admit the surveillance as evidence for the hearing and, if so, the weight to be afforded to the portion of the applicant’s testimony that the respondent sought to impeach (see: Statutory Powers Procedure Act, ss. 23(1) and 25.0.1).

11In the circumstances, we are not prepared to admit the respondent’s surveillance as evidence for the hearing. Based on the respondent’s submissions, the surveillance was conducted approximately two weeks prior to the hearing, well after the timelines for exchanging documents had passed, with the sole purpose of impeaching the applicant during the hearing. Clearly, the respondent’s failure to make disclosure of the surveillance evidence as required by the Tribunal was calculated to take the applicant by surprise during his cross-examination. As for the applicant’s testimony, the Tribunal shall afford the weight it deems appropriate to the applicant’s evidence without taking into account the surveillance evidence.

ANALYSIS

Background

12On May 4, 2018, the applicant was involved in an automobile accident. He was travelling at the rate of 50 km/h near the intersection of Highway 27 and Albion Road, in Etobicoke, Ontario when his vehicle was struck by a third-party vehicle. However, due to the applicant’s inconsistent reporting, the mechanics of the accident are unknown. Specifically, on May 25, 2018, the applicant reported to his family physician, Dr. Malalai Kamawi that he was rear-ended. On June 30, 2020, the applicant reported to Dr. Alfonso Marino, psychologist, that his vehicle was T-boned on the passenger side. Further, the applicant reported to Dr. Tajedin Getahun, orthopaedic surgeon, on September 20, 2021, that his vehicle was swiped on the passenger side by a third-party vehicle.

13The applicant confirmed that his air bags did not deploy, and he denied hitting his head and losing consciousness. The applicant did not immediately seek medical attention, and emergency services were not called to the scene. Rather, the applicant resumed driving, and he proceeded to attend his client meeting.

14On May 25, 2018, the applicant consulted Dr. Kamawi. He reported that he had been involved in a rear end accident on May 4, that he was feeling better initially but that he later started to experience lower back pain and stiffness. Dr. Kamawi diagnosed the applicant with muscle strain and spasms. She recommended physiotherapy and the application of heat and ice, light massage, and she gave him a prescription for a pain reliever/anti-inflammatory medication, and a muscle relaxant.

Catastrophic Impairment Determination

15The applicant seeks a determination of catastrophic impairment under Criterion 8 as defined by the Schedule. He relies on an Application for Determination of Catastrophic Impairment (OCF-19) dated December 9, 2021 completed by Dr. Zohar Waisman, psychiatrist.

16The applicant bears the onus to prove on a balance of probabilities that he is catastrophically impaired under Criterion 8. This criterion encompasses impairment resulting from accident-related mental or behaviour disorders, as it does not include physically based impairments. When an impairment is not a result of a mental or behaviour disorder, it is not factored into the impairment level for a Criterion 8 catastrophic impairment.

17Criterion 8 relies on the American Medical Association’s Guide to the Evaluation of Permanent Impairment, 4^th Edition, 1993 (the “Guides”). The Guides set out four functional domains: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, and pace; and (4) adaptation (deterioration or decomposition in work or work like settings). There are five levels of impairment within each domain: no impairment, mild impairment, moderate impairment, marked impairment, and extreme impairment.

18An impairment is catastrophic under Criterion 8 of the Schedule if, as a result of the accident-related mental or behavioural disorder, a person has an “extreme” level of impairment in any one of the four domains or has a “marked” level of impairment in at least three of the four domains.

19The applicant submits that as a result of the accident, he suffers from a marked impairment in three functional domains due to a mental or behavioural disorder, specifically, activities of daily living, social functioning, and adaptation. The applicant does not claim that he suffers from an extreme impairment in any functional domain.

20The applicant relies on a psychiatry report dated December 15, 2021 completed by Dr. Waisman and an occupational therapy in-home and situational report dated October 31, 2021 completed by Julian Amchislavsky, occupational therapist. In addition, the applicant also relies on a psychovocational/rehabilitation evaluation report dated January 31, 2022 completed by Dr. Shawn Elliot Sherer and on various clinical notes and records (“CNRs”) and reports from his various treating practitioners.

21The respondent submits that the applicant has not met his onus to prove that he is catastrophically impaired as a result of the accident. The respondent argues that the applicant’s self-reporting is inconsistent and unreliable, and that the applicant’s level of impairment is less severe than what he reports. The respondent further states that the applicant suffers from a moderate impairment in activities of daily living and adaptation, and a mild impairment in social functioning.

22The respondent relies on a psychiatry examination report dated August 9, 2021 and a psychiatry paper review report dated February 22, 2023, both completed by Dr. Joel Eisen, psychiatrist, as well as an occupational therapy in-home examination report and an occupational therapy situational examination report, both dated February 22, 2023, and both completed by Avi Kaplun, occupational therapist.

23The respondent also argues that we should not rely on Dr. Waisman's evidence because of his over-reliance and sparse analysis of in-home and situational reports that form the basis of his functional impairment conclusions. It relies on various decisions to support this position, namely: De Sousa Araujo v. Intact, 2023 CanLII 34473, Bernard v. Unica Insurance Inc., 2022 CanLII 49957, and Ramnarine v. Aviva General Insurance, 2022 CanLII 57363. However, we find these decisions distinguishable, and we are not bound by these decisions. We will afford the weight we deem appropriate to Dr. Waisman’s evidence.

24As the parties agree that the applicant does not suffer from a marked impairment in the functional domain of concentration, persistence, and pace, our review of the evidence is concentrated on whether the applicant suffers from a marked impairment in activities of daily living, social functioning, and adaptation.

The applicant does not suffer from a catastrophic impairment under Criterion 8

25We find that the applicant has not demonstrated, on a balance of probabilities, that he suffers from a marked impairment in three functional domains due to a mental or behavioural disorder as a result of the injuries sustained in the subject accident. Based on the testimony of the applicant, his spouse, Inderjit Lahil, Dr. Waisman, Mr. Amchislavsky, and Dr. Eisen, as well as the evidence presented during the hearing, we find that the applicant does not meet the test as set out in the Schedule and has not established that he is catastrophically impaired under Criterion 8.

26Both Dr. Waisman and Dr. Eisen diagnosed the applicant with major depressive disorder and a somatic symptom disorder. Somatic symptom disorder is associated with “disproportionate and persistent thoughts about the seriousness of one’s symptom, persistently higher level of anxiety about health or symptoms, and excessive time and energy devoted to these symptoms or health concerns”. While these assessors agree on the applicant’s diagnoses, their assessments of his functional impairments under Criterion 8 vary and are outlined in the following paragraphs.

Activities of Daily Living

27We find that the applicant does not suffer from a marked impairment in the domain of activities of daily living.

28The Guides specify that activities of daily living functioning incudes self-care, personal hygiene, communication, ambulation, travel, sexual functioning, sleep, and social and recreational activities. Any limitations in these activities should be related to the mental disorder. In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction. What is assessed is not the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

29We find the applicant’s evidence and submissions that he sustained a marked impairment in the domain of activities of daily living to be unpersuasive. Dr. Waisman concluded in his report dated December 15, 2021 that the applicant has a marked impairment under activities of daily living. Dr. Waisman indicated that the applicant has ongoing symptoms of depression, anxiety, insomnia, and fatigue, and that his anhedonia impairs his ability to initiate and persist in his daily routine, including his housekeeping and work-like tasks.

30However, based on the testimony of the applicant, and Dr. Eisen as well as the insurer orthopaedic in-person examination report dated January 3, 2019 completed by Dr. Ato Sekyi-Otu, orthopaedic surgeon, although there has been a change in the applicant’s activities from his pre-accident level of functioning, he retains functioning in activities of self-care, personal hygiene, ambulation, travel and some recreational activities. While the applicant continues to experience back pain due to his degenerative disk disease, he testified that he is able to wash and dress himself, to walk, and to participate in recreational activities such as walking the family dog. Also, while the applicant reports experiencing driving anxiety, the applicant confirmed that he is able to drive occasionally to his place of worship, to visit his relatives, and to attend in-person therapy sessions.

31For the reasons above, we find that the applicant’s accident-related injuries do not significantly impede useful functioning in his activities of daily living. As such, the applicant has not demonstrated that he suffers from a marked impairment in the activities of daily living domain.

Social Functioning

32We find that the applicant does not suffer from a marked impairment in the domain of social functioning.

33The Guides specify that social 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. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Strengths in social functioning may be documented by an individual’s ability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities. Cooperative behaviour, consideration for others, awareness of others’ sensitivities, and social maturity also need to be considered.

34We find the applicant’s evidence and submissions that he sustained a marked impairment in the domain of social functioning to be unpersuasive. Dr. Waisman concluded that the applicant has a marked impairment under social functioning. In his report, Dr. Waisman indicated that “[the applicant] noted the quality of his relationships has deteriorated post-accident secondary to his withdrawal resulting from depressive symptomatology and pain. He also noted that irritability contributes to problems interacting appropriately and communicating effectively.” Further, the applicant testified that he has not returned to work, that he lost interest in his pre-accident sporting activities, that he spends most of his time alone at home, and that he avoids social gatherings because he feels judged by his community.

35However, we find that the evidence shows that following the accident, the applicant maintained key relationships with his immediate and extended family both in Canada and in India. For example, the applicant testified that he travelled to India in the summer of 2023 with his spouse and children to visit his extended family. During this two-and-a-half-month trip, the applicant and his family made several day trips in the vicinity of New Delhi, they travelled to the state of Uttar Pradesh, and they flew to Kashmir. As such, the applicant’s post-accident social functioning does not support a finding of a significant impediment.

36We also find the applicant’s submissions regarding his diminished interest in sporting activities unpersuasive because interests and hobbies change over time and are subject to other factors such as life stage and availability of recreational options. The applicant testified that he continues to accompany his brother-in-law to the golf course, and interest in this sporting activity continues despite the accident.

37Accordingly, we find that the applicant has not met his onus of proving that he suffers from a marked impairment under the social functioning domain.

Adaptation

38We find that the applicant does not suffer from a marked impairment in the domain of adaptation.

39The Guides specify that adaptation (deterioration or decompensation in work or work like settings) refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances, the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder, that is, decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers.

40We find that the applicant’s evidence and submissions that he sustained a marked impairment in the domain of adaptation to be unpersuasive. Dr. Waisman concluded that the applicant has a marked impairment under adaptation. He indicated that the applicant:

…is caught in a cycle of chronic pain and depression that leads to frustration and lack of motivation to deal with daily stressors. He gets overwhelmed and experiences an exacerbation of his symptoms upon certain triggers. He suffers from two psychiatric conditions. Each of these conditions carries with it a considerable level of impairment and disability. The cumulative effect of two conditions has been overwhelming for Mr. Sunnar.

41Further, both the applicant and his spouse testified that at the time of the accident, he was a self-employed marketing director at World Financial Group, managing a team of over 60 people independently, and working between 60 to 70 hours per week, on average. The also applicant testified that his single attempt to return to work following the accident was unsuccessful, and that he did not seek additional employment in the six years since the accident. Although this information is consistent with what the applicant reported to multiple assessors including Mr. Amchislavsky, Dr. Waisman, Dr. Marino, and Dr. Sekyi-Otu for the reasons that follow, we place less weight on this evidence.

42We find that the applicant’s testimony and self-reporting to various assessors is inconsistent with his application dated October 28, 2020 for Canada Pension Plan (CPP) disability benefits. Based on the applicant’s application, the applicant was self-employed as a marketing director with the World Financial Group from September 1, 2016 to May 4, 2018 and that he worked 50 hours per week over 6 days per week. He also indicated that he was concurrently employed on a full-time basis as a law assistant at a law firm from February 1, 2010 to June 1, 2018, and that he worked 40 hours per week over 5 days.

43Similarly, the applicant’s self-reporting of his accident-related injuries and their severity to various assessors is inconsistent. While the applicant reported to Dr. Waisman on September 21, 2021 that he had been diagnosed with a concussion by Dr. Kamawi following the accident, a review of Dr. Kamawi’s CNRs does not support that she made this diagnosis.

44Further, based on a clinical note dated July 5, 2022 prepared by Alison McPhedran, cognitive behavioural therapy clinician, during an intake assessment for the Bounce Back Program, the applicant alleged that he “sustained major injuries in a car accident approximately 4 years ago. He reported that he was bedridden for approximately 2-3 months following the accident.” However, the CNRs of Dr. Kamawi and Dr. Mandeep Wadhwa, family physician, indicate that the applicant first sought medical intervention following the accident on May 25, 2018, that is 21 days after the accident, and that he was diagnosed with back pain due to degenerative disk disease. The latter is consistent with the findings of Dr. Getahun. He concluded in an orthopaedic assessment report dated September 20, 2021 that the applicant sustained an exacerbation of pre-existing degenerative changes in this lumbar spine as a result of the subject accident.

45Moreover, we find that there is insufficient evidence to support that the applicant’s mental and behavioural accident-related injuries significantly impede useful functioning under adaptation. While it is undisputed that the applicant was diagnosed with major depressive disorder and somatic symptom disorder as a result of the accident, per the Guides, the severity of impairment is not necessarily related to the diagnosis. Additionally, given the applicant’s inconsistent and unreliable self-reporting, the applicant’s evidence regarding the severity of his impairment is not persuasive. Also, the applicant did not lead evidence detailing his attempt to return to work and describing the scope of his residual functional capacity for work-like settings during the hearing. He also did not direct the Tribunal to any objective evidence or report to support the alleged severity of impairment.

46Although the applicant argues that Dr. Sherer’s report is extremely important to the determination of his mental and behavioural impairment, we note that Dr. Sherer did not express an opinion on whether the applicant meets the definition of a catastrophic impairment under Criterion 8 in his report. As such, more weight has been given to the reports of Dr. Waisman and Dr. Eisen.

47Finally, we find that the applicant’s perception of the nature of his injuries plays a significant role in his motivation to recover and function in several domains of this life. Additionally, we acknowledge that the evidence suggests that the applicant has a tendency to withdraw after a single attempt rather than experiencing repeated failures to adapt to stressful circumstances. For example, the applicant testified that he made only one attempt to return to work in the years since the accident. During a community assessment with Mr. Amchislavsky, he ended two assigned tasks prematurely, specifically grocery shopping and purchasing a coffee at Tim Horton’s, instead of experiencing failures at these tasks. However, even if we were to accept Dr. Waisman’s marked impairment rating in the domain of adaptation, it would not result in a finding that the applicant is catastrophically impaired as a result of the accident as the balance of the evidence does not establish that the applicant suffers from a marked impairment in at least three of the four domains or from an extreme impairment in any of the four domains.

48As a result, we find that the applicant did not establish, on a balance of probabilities, that he is catastrophically impaired under Criterion 8.

ORDER

49For the reasons outlined above, we find that the applicant’s impairments do not meet the definition of a catastrophic impairment as defined by the Schedule under criterion 8.

50The application is dismissed.