Citation: Tetruashvili v. Toronto Transit Commission, 2024 ONLAT 23-002684/AABS

Licence Appeal Tribunal File Number: 23-002684/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:

Liana Tetruashvili

Applicant

and

Toronto Transit Commission

Respondent

DECISION

ADJUDICATORS:

Sam Moini Amar Mohammed

APPEARANCES:

For the Applicant:

David Kapanadze, Counsel

For the Respondent:

Maximir Luburic, Counsel

Nicole Mahadeo, Counsel

Interpreter: Court Reporter:

Tamar Chighladze, Georgian language May 1, 2024 to May 3, 2024

HEARD by videoconference:

April 30, 2024 to May 3, 2024

OVERVIEW

1Liana Tetruashvili, the applicant, was involved in an automobile accident on August 15, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by the respondent, Toronto Transit Commission, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of Issues.

ISSUES

2The issues in dispute are:

i. Has the applicant sustained a catastrophic impairment as defined in the Schedule?

ii. Is the applicant entitled to costs in the amount of $5,000.00?

iii. Is the respondent entitled to costs in the amount of $500.00?

RESULT

3The applicant has not sustained a catastrophic impairment as defined in the Schedule.

4The applicant is not entitled to costs in the amount of $5,000.00.

5The respondent is not entitled to costs in the amount of $500.00.

PROCEDURAL ISSUES

The respondent's adjournment request is denied

6The respondent's oral adjournment request is denied.

7In a letter dated April 23, 2024, the respondent requested an emergency case conference to address the applicant's counsel's position that the applicant would testify on May 8th, the final day of the hearing. The respondent submitted the hearing could not proceed on the scheduled dates because:

i. It is the applicant's case, and her testimony is the most important.

ii. The applicant required a translator, she would likely require frequent breaks, and her testimony could take more than a day.

iii. The respondent's occupational therapist was only available on May 8th to testify.

iv. The applicant had not provided a reason as to why she could not give her testimony on any other day.

v. The applicant had not confirmed that she would attend the hearing to give her testimony on May 8th.

8Rule 16.1 of the Licence Appeal Tribunal Rules ("Rules") requires adjournment requests be made using the form for requesting an adjournment on the Tribunal's website. The respondent did not comply with this rule and instead requested an emergency case conference. The adjournment request was therefore an oral request under Rule 16.2.

9Rule 16.2 permits oral requests for an adjournment at a hearing when there are compelling circumstances that the requesting party did not and could not have known about prior to the event.

10The respondent argues the applicant's witnesses should testify first so it knows the case it needs to respond to. The applicant did not consent to an adjournment because it was a last-minute request. She submitted that it is important to get finality in this matter as the accident occurred seven years ago, and all expert witnesses had been scheduled and were prepared to proceed.

11The adjournment request is denied. The respondent did not provide compelling circumstances giving rise to the adjournment request that it did not and could not have known prior to the event as required by Rule 16.2.

The respondent's request for a summons of Dr. Gotesman is denied

12At the outset of the hearing, the respondent requested a summons for Dr. Gotesman. The respondent submitted that that testimony of Dr. Gotesman was essential as he was the only treating doctor of the applicant. We denied the request for a summons, as the Tribunal had already decided to deny the summons in a Motion Order dated April 19, 2024. Also, the request for a summons failed to meet the requirements of Rule 8.2 which requires a summons request be filed in a timely manner in advance of the deadline for service which is 10 days before the hearing. For these reasons the request was denied.

The applicant's motion seeking to exclude three reports and their authors as witnesses is denied

13The applicant, by way of a written motion, sought to exclude three of the reports the respondent was seeking to rely on. The applicant also sought an order to exclude the authors of these reports from testifying as witnesses at the hearing. Alternatively, the applicant requested that the opinions, findings, and conclusions of the experts be given little to no weight.

14The applicant argued that the respondent breached the Case Conference Report and Order ("CCRO"). In the CCRO, the parties had agreed to exchange specific items and documents by no later than 60 days after the case conference. The applicant alleged that the respondent did not comply with the order to provide the applicant with "Copies of the s.44 examination reports and CNR of IE assessors relative to the CAT assessors". The applicant states the clinical notes and records ("CNRs") of the assessors who authored the three reports were not provided, namely: the psychiatry report by Dr. Velan Sivasubramanian; the In-home occupational therapy report by Montana Mullane; and the Situational occupational therapy report by Montana Mullane. The applicant argued that admission of these documents would prejudice the applicant because the CNRs were not produced in compliance with the CCRO and therefore the applicant would not be able to properly cross-examine these witnesses.

15The respondent submitted it had complied by delivering the reports in accordance with the deadlines set in the CCRO. Further, the respondent submitted that it provided CNRs of assessors that the report authors were relying on. The respondent argues the language contained in the CCRO does not support the applicant's position because it does not clearly require production of the CNRs of the CAT assessors and we agree. Instead, the respondent argues it required CNRs of assessors relative to the CAT assessors and this was complied with. The respondent also submits that the authors have provided their reports and will not be relying on their CNRs at the hearing.

16We find the reports were provided within the deadlines set and the applicant had ample opportunity to review the reports, respond and to prepare for cross examination. The CNRs of the reports' authors are separate from the reports and are not being relied upon by the respondent. For the reasons above, we denied the applicant's request.

The respondent's motion to exclude Dr. Kangaratnam's Catastrophic Impairment Psychological Examination Report dated March 8, 2023, is denied

17The respondent, by way of a motion, sought to exclude the rebuttal report of Dr. Pushpa Kanagaratnam as the report was referenced by the applicant for the first time on April 4, 2024. The respondent requested a copy of the report on April 5, 2024, and received a copy. The report was not discussed in the case conference and was exchanged after the ultimate 120-day deadline for disclosure set out in the CCRO.

18The applicant submitted that if this report is excluded, it would be prejudicial to her, as the late disclosure was an honest oversight.

19We found that the respondent had sufficient opportunity to review the late disclosure and prepare for this hearing. We decided to admit the evidence and determined that the late filing would go to weight if the parties addressed it in closing submissions.

Request for Costs

20The applicant orally requested costs be added as an issue. As per Rule 19.2, we allowed the issue of costs to be added and directed the parties to file written submissions according to Rule 19.3.

ANALYSIS

The applicant is not catastrophically impaired under Criterion 8

21We find that the applicant does not meet the definition of catastrophic impairment as a result of the accident as defined in section 3.1(8) of the Schedule ("Criterion 8").

22The applicant must prove, on a balance of probabilities, that she is catastrophically impaired. Under Criterion 8, the applicant must prove that, as a result of the accident, she suffers from marked impairment ("Class 4") in at least three of the four domains, or at least one extreme impairment ("Class 5"), due to a mental or behavioural disorder. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one.

23The applicant submitted that she suffers from a Class 4 marked impairment in three areas of functioning, namely in activities of daily living, concentration, persistence and pace, and adaptation. The respondent submits that the applicant does not suffer from a Class 4 impairment in any area of functioning. Their respective positions are set out below. (Class 5 is omitted as it is not relevant)

Area or aspect of functioning

Class 1: No impairment

Class 2: Mild impairment

Class 3: Moderate Impairment

Class 4: Marked impairment

Activities of daily living

Respondent

Applicant

Social functioning

Respondent

Applicant

Concentration, persistence, and pace

Respondent

Applicant

Adaptation – Deterioration or decompensation in work or work-like settings

Respondent

Applicant

24The applicant submitted that we should accept the marked impairment rating in the sphere of adaptation based on the findings of Dr. Pushpa Kanagaratnam, a psychiatrist, and Ms. Greenspan, an occupational therapist. Dr. Kanagaratnam diagnosed the applicant with major depressive disorder, single episode, moderate to severe with anxious distress, somatic symptom disorder with predominant pain, moderate to severe, and post-traumatic stress disorder. The applicant wants the Tribunal to accept that she led an active and independent lifestyle pre-accident, including upkeep of her home and various social and leisurely activities, which was supported by the testimony of the applicant's grandson.

25Since the accident, however, the applicant argues that she has declined drastically due to pain, physical limitations, impaired mobility, depressed mood, and anxiety. The applicant was very anxious, in pain, agitated, and crying on occasion during the occupational therapy assessment where they had to cut the second day short. Dr. Kanagaratnam's opinion is that since the accident, the applicant's condition has significantly impeded her functioning in adaptation and has contributed to her withdrawal from daily activities and social situations compared to her pre-accident functioning. Dr. Kanagaratnam contrasts the applicant's post-accident functioning with what would be expected of a woman her age and stage of life and concludes that the applicant has a Class 4 Marked Impairment in the sphere of adaptation.

26The respondent submits that we should accept the mild impairment rating in the sphere of adaptation based on the findings of Dr. Velan Sivasubramanian. Dr. Sivasubramanian diagnosed the applicant, as a direct result of the accident, with somatic symptom disorder with predominant pain; adjustment disorder with anxious and depressed mood; and other specified trauma and stress-related disorder (incorporating elements of specific phobia and posttraumatic stress disorder). Dr. Sivasubramanian stated that the applicant had been diagnosed with cancer and had subsequent treatments, including several surgeries. Dr. Sivasubramanian stated that the applicant finds it difficult to attend to household chores and responsibilities because of physical pain and fatigue which has been amplified by the somatic symptom disorder. Dr. Sivasubramanian also stated that the applicant had been diagnosed with sleep apnea, which did not appear to be treated at the time of the assessment, and the applicant had appeared to have elevated blood pressure, which in turn both would have negatively affected the applicant's energy levels, as well as her ability to focus and concentrate. Further, in his report, Dr. Sivasubramanian questioned if Dr. Kanagaratnam is conflating the applicant's physical impairments with her psychiatric ones. We found the respondent's evidence showed that a mild impairment in the sphere in adaptation was accurate.

27The respondent argues that the applicant's completed ODSP form dated in April of 2016 contradicts the testimony of the applicant's grandson as to her independence and functioning pre-accident. The form states she experiences difficulties due to her disabilities in her physical, emotional, psychological, and developmental state. The respondent submits that the contradiction relates to the applicant's level of independence in her daily activities prior to the accident, which included:

(a) Applicant had severe pain.

(b) Applicant relied on her friends for shopping, cleaning, and cooking.

(c) The applicant was depressed due to her physical health conditions.

In contrast, the applicant's grandson's testimony was that she did not have these issues until after the accident. However, the applicant's evidence acknowledges that she had not worked since coming to Canada in the early 2000s and has received support from the Ontario Disability Support Program (ODSP) since 2007.

28In considering the evidence that was presented, we find the applicant did not suffer a marked impairment in the domain of adaptation as a result of mental or behavioural disorder as a result of the accident. Though we agree the applicant has impairments, we find the evidence does not satisfactorily differentiate between her physical impairments and her mental and behavioural impairments. The applicant's physical condition, based on the evidence provided, showed that her impairments were mainly due to her physical limitations, which included many physical health issues, and the evidence supports the view that her impairments were pre-existing prior to the accident. The grandson's evidence is given less weight because he had not spent sufficient time with the applicant pre-accident and his testimony contradicted the medical records. Therefore, we agree with the respondent that the applicant suffers from a mild impairment in the area of adaptation.

29Without a marked impairment in the area of adaptation, the applicant cannot meet the minimum of three marked impairments required and therefore we find that the applicant is not catastrophically impaired under Criterion 8.

The applicant's request for costs is denied

30The applicant submitted a request for costs, stating it was seeking $1,000.00 per act of misconduct for a total of $5,000.00. The applicant described the respondent's alleged acts of misconduct as follows;

(i) Failure to comply with the disclosure requirements in Rules 9 and 10, in addition to adjudicator Demarce's order, and for the prejudice to the applicant's position resulting therefrom;

(ii) Respondent's attempts to delay proceedings with the summons to a witness submitted April 17, 2024, and April 19, 2024;

(iii) Respondent's attempt to dictate the order of proceedings via the letter seeking an emergency case conference dated April 23, 2024;

(iv) Respondent's third attempt to summon Dr. Gotesman and last-minute attempt to exclude the applicant's expert evidence via the April 23, 2024, Notice of Motion at a scheduled event, amended April 29, 2024; and

(v) Respondent's frivolous, last-minute motion to adjourn proceedings on the first date of the hearing.

31The respondent submitted there is no evidence indicating that the respondent's conduct at this hearing was unreasonable, frivolous, vexatious, or in bad faith. The respondent also submits that the allegations of misconduct made by the applicant are groundless and inflammatory, and the respondent has been unnecessarily put to the expense of responding to this request for costs.

32We decline to award costs to the applicant. The applicant did not substantiate, on a balance of probabilities, that the respondent acted unreasonably, frivolously, vexatiously, or in bad faith per Rule 19.1. The evidence presented by the applicant was limited in its scope and did not meet the requirements to award cost.

The respondent's request for costs is denied

33The respondent submits that the applicant's cost submissions are vexatious, frivolous, unreasonable and in bad faith. As such, the respondent requests the Tribunal award it $500.00 for having to respond to the applicant's submissions.

34We find that the respondent did not substantiate, on a balance of probabilities, that the applicant had acted unreasonably, frivolously, vexatiously, or in bad faith in their request for costs as per Rule 19.1. The evidence presented by the respondent was limited in its scope and did not meet the requirements to award cost.

ORDER

35For the above-noted reasons, we find:

i. The applicant has not sustained a catastrophic impairment as defined in the Schedule.

ii. The applicant is not entitled to costs in the amount of $5,000.00.

iii. The respondent is not entitled to costs in the amount of $500.00.

iv. The application is dismissed.