Citation: Mukhtar v. Security National Insurance Company, 2024 ONLAT 22-009316/AABS

Licence Appeal Tribunal File Number: 22-009316/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:

Tariq Mukhtar

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: David J. Levy, Counsel

For the Respondent: Taylor Cawley, Counsel

HEARD: By way of written submissions

OVERVIEW

1Tariq Mukhtar, the applicant, was involved in a serious accident on September 4, 2020, when as a pedestrian he was struck by a motor vehicle. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) from the respondent, Security National Insurance Company. In particular, the applicant submitted an application for a catastrophic (“CAT”) impairment designation pursuant to section 3.1(1)4 of the Schedule – Criterion 4. The respondent conducted insurer examinations (“IEs”) and denied that the applicant had sustained a CAT impairment. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The parties agree that the applicant has exhausted the $65,000 non-CAT monetary limits for medical and rehabilitation benefits. If it is determined that the applicant sustained a CAT impairment, the policy limits would be increased to $1,000,000 for medical, rehabilitation and attendant care benefits.

ISSUES

3The issues in dispute are:

1. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
2. Is the applicant entitled to $1,103.97 for other assistive devices, proposed by Annmarie Foster, Speech Language Pathologist in a treatment plan dated July 5, 2022?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that:

1. The applicant has not met his onus to prove that he is catastrophically impaired as a result of the accident;
2. The applicant is not entitled to the treatment plan in dispute or interest.

ANALYSIS

Criterion 4 and the Parties’ Positions

5The applicant seeks a CAT determination under section 3.1(1)4 of the Schedule (Criterion 4), which sets out the following two-pronged test, both which need to be satisfied in order to qualify:

1. There must be diagnostic evidence of brain trauma; and
2. The applicant must have at least an Upper Severe Disability or Lower Severe Disability, six months or more after the accident or a Lower Moderate Disability one year or more after the accident under the Extended Glasgow Outcome Scale (“GOS-E”) when assessed in accordance with the article by Wilson, J., Pettigrew, and Teasdale, G., Structured Interviews for the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale: Guidelines for Their Use, Journal of Neurotrauma, Volume 15, Number 8, 1998.

6The parties agree that the applicant meets the first prong of the test, namely that radiologic evidence of a traumatic brain injury (“TBI”) was provided. However, they disagree on whether he meets the second part of the Criterion 4 test.

7The applicant relies on the respondent’s occupational therapist’s (“OT”) CAT assessment to establish that he met the definition of Upper Severe Disability at the 6-month mark post-accident. He argues that Ms. Ranya Ghatas, the respondent’s OT assessor, found that the applicant met the level of impairment necessary to achieve CAT designation. However, he argues that Ms. Ghatas’ determination was ignored by the respondent’s neurology CAT assessor, who simply replaced Ms. Ghatas’ findings about functionality with his own non-CAT finding, without conducting any structured GOS-E interview. The applicant further submits two s. 25 neuropsychological assessments by Dr. William Fulton, and reports from his speech language pathologists all of whom found that the applicant continued to suffer from severe impairments in a number of areas.

8The respondent disputes that the applicant is catastrophically impaired under Criterion 4, and relies on its s. 44 CAT assessments, including the neurology assessment of Dr. Moddel and the CAT executive summary of Dr. Ben Meikle, physiatrist. While the respondent does not dispute that Ms. Ghatas found that the applicant’s current level of function corresponded to a GOS-E rating of a Severe Disability at six months or more post-accident, the respondent points to Dr. Moddel’s neurology CAT assessment, who did not find any objective neurological impairment attributable to the accident. Dr. Moddel noted that the applicant was able to return to work, now full-time, and operate a motor vehicle and determined that the applicant’s GOS-E score would be “good recovery”.

9With respect to Ms. Ghatas’ finding of Severe Impairment under Criterion 4, the respondent submits that pursuant to s. 45(2) of the Schedule, a CAT determination may only be made by a physician (or in the case of a TBI, a neuropsychologist), but they “may be assisted” by another regulated professional such as an OT. It argues that the applicant cannot rely solely on Ms. Ghatas’ GOS-E determination, since as an OT Ms. Ghatas was unable to opine on causation or provide an opinion on final catastrophic impairment. Rather, this must be left to a physician such as Dr. Moddel, who found that the applicant did not meet the threshold of CAT impairment under Criterion 4. It cites two Tribunal decisions, Abdi v TD General Insurance Company, 2021 CanLII 127474 (ON LAT) and Adams v Federated Insurance Company of Canada, 2022 CanLII 38859 (ON LAT), in support of its position.

10The applicant submits that Ms. Ghatas’ administration of the GOS-E interview and finding of functional impairment in the range of Upper Severe Disability, meets the definition to reach a CAT designation. He argues that the respondent’s argument that OTs cannot opine on causation is not relevant, as in the present matter there is no issue with respect to causation. No evidence has been led by the respondent that the applicant’s impairments were caused by anything other than the brain injury. As such, he submits that the decision Abdi v. TD is distinguishable. The applicant further argues that Dr. Fulton noted in his December 7, 2022 s. 25 neuropsychological assessment that despite the applicant exceeding expectations and returning to work full-time, there remained numerous areas of severe impairment affecting cognitive functioning.

The applicant has not sustained a catastrophic impairment as defined by Criterion 4 of the Schedule

11Section 45(2) of the Schedule provides three rules for determining whether an insured person suffers a catastrophic impairment. They are:

1. An assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician, but the physician may be assisted by such other regulated health professionals as he or she may reasonably require;
2. Despite the first rule, if the impairment is a TBI only, the assessment or examination may be conducted by a neuropsychologist who may be assisted by such other regulated health professionals as he or she may reasonably require;
3. If a Guideline specifies conditions, restrictions or limits with respect to the determination of whether an impairment is a catastrophic impairment, the determination must be made in accordance with those conditions, restrictions and limits.

12The applicant argues that Dr. Moddel’s conclusion that the applicant does not meet the CAT impairment designation under Criterion 4, should be disregarded. He submits that Dr. Moddel ignored Ms. Ghatas’ findings of Severe Impairment, without any analysis or explanation. Rather, Dr. Moddel simply stated that “strictly from a neurology perspective” the applicant’s GOS-E score would be “good recovery”. However, the applicant argues that no structured interview was given by Dr. Moddel, and that the only such GOS-E assessment, as required by section 3.1(1)4 of the Schedule, was conducted by Ms. Ghatas. As such, the applicant submits that Ms. Ghatas’ finding that he sustained an Upper Severe Disability or Lower Severe Disability, six months or more after the accident, must be accepted.

13I am not persuaded by the applicant’s argument that the second prong under the Criterion 4 test specified in section 3.1(1)4 has been met. I agree with the respondent that section 45(2)2 of the Schedule restricts the administration of GOS-E assessments to physicians or neuropsychologists, who may be assisted by such other health professionals, as reasonably required. In the present matter, the only GOS-E conducted was administered by an OT, who may “assist” a physician or neuropsychologist. However, the applicant has not tendered any evidence that a physician or neuropsychologist confirmed that the applicant sustained an Upper Severe Disability or Lower Severe Disability, six months or more after the accident.

14Rather, the respondent’s neurology CAT assessor Dr. Moddel provided a different GOS-E rating level. He noted that although the applicant had sustained a complicated TBI, he had a remarkable recovery. He noted that the applicant had returned to work full-time and was now driving and operating a motor vehicle. As such, Dr. Moddel found that the applicant’s GOS-E score would be the non-CAT rating of “good recovery”. While the applicant argues that Dr. Moddel’s assessment should be assigned limited weight as he did not conduct his own structured GOS-E assessment or provide an analysis as to why Ms. Ghatas’ finding were not accepted, the applicant has not tendered a competing medical opinion.

15The applicant has not conducted his own CAT assessments. Rather, he argues that the combination of Ms. Ghatas’ findings of Severe Impairment under Criterion 4, and the diagnoses of his s. 25 neuropsychological assessor Dr. Fulton, cumulatively fulfill the criteria under the second prong of the Criterion 4 test. He submits that once Dr. Fulton identified the applicant’s TBI impairments and Ms. Ghatas provided her findings on function under Criterion 4, “there was no need for the applicant to incur the cost of a further report simply to confirm those functional findings.” I am not persuaded by the applicant’s argument.

16The applicant’s s. 25 neuropsychologist Dr. Fulton did not opine on Criterion 4 or assess the applicant using the GOS-E ratings. Rather, he provided a general neuropsychological assessment and DSM-IV and DSM-V diagnoses of Cognitive Disorder (due to TBI), and Adjustment Disorder. Dr. Fulton further found that with respect to disability, while the applicant was successful in his return to work, test performance suggested a mild-moderate degree of global cognitive impairment with specific aspects of his mental abilities more “severely impaired”. However, the applicant does not direct me to any evidence that in addition to providing accident-related diagnoses, that Dr. Fulton also considered the functional capabilities addressed in the GOS-E questionnaire or vetted and supported Ms. Ghatas’ GOS-E findings.

17Therefore, the applicant has not submitted a finding from a physician or neuropsychologist that he suffers from an Upper Severe Disability or Lower Severe Disability GOS-E rating level, six months or more after the accident. The applicant submits that the respondent’s neurology assessor Dr. Moddel similarly did not provide a detailed GOS-E analysis. However, the onus to establish a catastrophic determination rests with the applicant.

18In my view section 45(2)2 is clear that the administration of GOS-E assessments is restricted to physicians and neuropsychologists, who may be assisted by other health professionals, such as OTs. The applicant has not directed me to any authority or Tribunal caselaw supporting the position that an OT opinion on GOS-E ratings, without a corresponding physician’s or neuropsychological GOS-E opinion, complies with s. 45(2) of the Schedule. Without a medical opinion from a physician or neuropsychologist that the applicant meets the required Criterion 4 threshold, I find that the applicant has not met his onus to prove that he sustained a catastrophic impairment pursuant to s. 3.1(1)4 of the Schedule.

19Since the parties agree that the applicant has exhausted the $65,000 non-CAT monetary limits for medical and rehabilitation benefits, it is not necessary for me to consider the reasonableness and necessity of the treatment plan in dispute. As no amounts are owing, the applicant is not entitled to interest on the overdue payment of benefits.

ORDER

20I find that:

i. The applicant is not catastrophically impaired. ii. The applicant is not entitled to the treatment plan in dispute, or interest.