Licence Appeal Tribunal File Number: 23-007872/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:
Lori L Christensen
Applicant
and
Primmum Insurance Company
Respondent
DECISION
VICE-CHAIR:
Robert Maich
APPEARANCES:
For the Applicant:
Alon Barda, Counsel
For the Respondent:
Taylor Cawley, Counsel
Annie Padhani, Counsel
HEARD: by Videoconference:
July 15, 2024
OVERVIEW
1Lori L. Christensen, the applicant, was involved in an automobile accident on March 19, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Primmum, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to chiropractic services, as follows:
a) $1,417.70, proposed by Mackenzie Medical Rehab in a treatment plan/OCF-18 (“plan”) submitted July 14, 2021 and denied July 16, 2021;
b) $1,417.70, proposed by Mackenzie Medical Rehab in a plan submitted September 1, 2021 and denied September 8, 2021;
c) $2,635.40, proposed by Mackenzie Medical Rehab in a plan submitted October 1, 2021 and denied October 5, 2021;
d) $1,280.00, proposed by E-Clinic in a plan submitted December 2, 2022 and denied December 13, 2022; and
e) $1,619.72, proposed by Mackenzie Medical Rehab in a plan submitted June 6, 2023 and denied June 12, 2023?
iii. Is the applicant entitled to $1,796.00 for occupational therapy services, proposed by E-Clinic in a plan submitted August 19, 2022 and denied August 24, 2022?
iv. Is the applicant entitled to $4,486.71 for psychological services, proposed by Q-Medical in a plan submitted May 29, 2023 and denied June 12, 2023?
v. Is the applicant entitled to $632.24 for assistive devices, including a long-handled tub scrub and training, proposed by Q-Medical in a plan submitted May 29, 2023 and denied June 12, 2023?
vi. Is the applicant entitled to $2,260.00 for an attendant care benefit Form 1 completion, proposed by Q-Medical in a plan submitted April 3, 2023 and denied April 17, 2023?
vii. Is the applicant entitled to assessments, as follows:
a) $850.00 for a nutritional assessment, proposed by Scarborough Medical Centre in a plan dated August 13, 2021 and denied August 26, 2021;
b) $2,526.68 for a chiropractic assessment, proposed by Q-Medical in a plan dated January 16, 2023 and denied January 27, 2023;
c) $4,139.55 for a psychological assessment, proposed by E-Clinic in a plan dated February 2, 2023 and denied February 24, 2023; and
d) $2,486.00 for a cognitive learning assessment, proposed by Q-Medical in a plan dated May 29, 2023 and denied June 14, 2023?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant to have sustained a catastrophic impairment.
4The applicant is not entitled to the treatment plans in dispute.
5As no amounts are found to be owing, the applicant is not entitled to interest.
PROCEDURAL ISSUES
6The applicant brought a motion to exclude from evidence a report by Dr. Michael Martin entitled “Insurer’s Orthopaedic Examination” dated May 27, 2021.
7The applicant submitted that Dr. Michael Martin was subpoenaed by the respondent to appear as a witness in this proceeding but could not be found. The applicant learned Dr. Martin could not be found and would not be testifying in this proceeding five days before the start of the hearing.
8The applicant submitted Dr. Martin was on the respondent’s witness list, and the applicant had an expectation that Dr. Martin would be available for cross examination of his report, and his absence from this hearing caused prejudice to the applicant.
9The respondent submitted that the content of Dr. Martin’s report had been known to the applicant for approximately two years, and the applicant had ample opportunity to test the evidence of the report, by either submitting to another expert for a paper review, or subpoena the witness The respondent submitted the report was essential to address most of the treatment plans in dispute.
10Upon request, the applicant made submissions as to how she believed she was prejudiced and outlined the areas of specific concern where cross examination would have served for clarification and testing of the evidence contained in the report of Dr. Martin.
11I find the report to be relevant to the issues in dispute and order the report to be entered into evidence as Exhibit 51, as the applicant knew of the contents for an extended period of time and had ample opportunity to test the evidence in the report.
12Further, I find that the applicant had a reasonable expectation to cross examine Dr. Martin on his report, and find that the absence of the opportunity to cross examine Dr. Martin would affect the weight of his untested evidence in the areas of concern outlined by the applicant. The applicant made submissions on the areas of concern which noted by the Tribunal for weighting of this evidence. In the final analysis none of the areas of concern were considered by the Tribunal.
ANALYSIS
Catastrophic Impairment
13I find the applicant has demonstrated that they sustained a catastrophic impairment under criterion 8 of the Schedule.
14The onus of the burden of proof lies with the applicant on a balance of probabilities.
15The Schedule identifies the required criteria to meet the legal test for catastrophic impairment at s. 3.1(1)8, or otherwise known as Criterion 8.
16Specifically, the Schedule defines a Criterion 8 impairment as follows:
“An impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder.”
17The American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“AMA Guides”) provides for four domains of function, specifically:
Activities of daily living: including adaptive activities, such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring for self, grooming, using the telephone and directory, using the post office, and working.
Social functioning: ability to get along with others, including family members, friends, neighbors, grocery clerks, landlords, and others of the public; social functioning in work situations may involve responding appropriately to persons in authority and cooperative behavior toward coworkers.
Concentration, persistence, and pace (task completion): this refers to the patient’s ability to sustain focused attention long enough to permit the completion of everyday tasks in the workplace or home. Describe deficiencies in concentration, persistence, and pace that have been observed at work or in work like settings. Include relevant information from the mental status examination and from psychological testing.
Deterioration or decompensation in work like settings: describe failures to adapt to stressful circumstances that cause the individual either to withdraw from the situation or to experience signs and symptoms and difficulties with activities of daily living, social relationships, and concentration, persistence, and pace. Describe any decompensation at work, which might involve decisions, attendance, schedules, completing tasks, interactions with supervisors, and interactions with peers.
18Catastrophic impairment is a legal test of impairment under s. 3(1)(8) of the Schedule and in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”). Chapter 14 of the Guides set out the four spheres of functioning and the classification of impairments as represented in the chart below:
Area or Aspect of Functioning
Class 1: NO Impairment
Class 2: MILD Impairment
Class 3: MODERATE Impairment
Class 4: MARKED Impairment
Class 5: EXTREME Impairment
Activities of Daily Living
No impairment is noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some, but not all useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning
Social Functioning
Concentration, Persistence and Pace
Adaptation (In a work-like setting)
19The parties’ evidence for the determination of Criterion 8 in the four domains of function is contained within the expert reports of the parties. Specifically, the applicant’s evidence in “CAT Determination Assessment Report” authored by Dr. Williams, and the respondent’s evidence in “CAT Determination Report” authored by Dr. Aladetoyinbo.
20The applicant’s assessor Dr. Lauren Williams outlined her findings in the four domains of function at page 8 though 10 of her report. Dr. Williams found the applicant to have the following impairments:
i. Activities of Daily Living (ADL) - Class 4 (Marked) Impairment
ii. Social Functioning - Class 4 (Marked) Impairment
iii. Concentration, Persistence and Pace - Class 4 (Marked) Impairment
iv. Deterioration/Decompensation in Work or Work-like Settings (Adaptation) - Class 4 (Marked) Impairment
21In summary, Dr. Williams found the applicant to have a Class 4 (Marked) Impairment in all four domains and concluded that the applicant has sustained a catastrophic impairment under criterion 8 of the Schedule.
22The respondent’s assessor Dr. Kehnide Aladetoyinbo outlined his findings in the four domains of function at pages 11 through 16 of his report . Dr. Aladetoyinbo found the applicant to have the following impairments:
i. Activities of Daily Living: Class 3 [moderate] impairment
ii. Social Functioning: Class 3 [moderate] impairment
iii. Concentration, Persistence and Pace: Class 3 [moderate] impairment
iv. Adaptation: Class 4 [marked] impairment
23In summary, Dr. Aladetoyinbo found the applicant to have a Class 4 (Marked) Impairment in one domain, Adaptation, and found a Class 3 (Moderate) Impairment in the balance of the domains. Dr. Aladetoyinbo concluded at page 16 of his report that “the criterion threshold for catastrophic impairment is not fulfilled under Criterion 8”.
Applicant’s Expert Reports and Testimony
24The applicant’s CAT report dated March 16, 2023 is a multiple disciplinary report authored by Dr. Lauren Williams Psy.D., as reviewed by Dr. Jullian Mathoo Physiatrist, with contributing reports from Jessica Oh OT Reg., Tracie Shaw OT Reg., and Revital Shuster MSW.
25The evidence contained in the applicant’s reports is summarized as follows:
a) The Plain Language Summary Report by Dr. Williams, Psy.D outlines the pre-accident and post-accident circumstances of the applicant as well as the diagnosis from five other medical professionals, the validity of the score of the applicant, causation, medication and a summary explanation as to why the applicant meets Criterion 8 as Class 4 (Marked) Impairment in all four domains of function. Details of the Criterion 8 analysis is contained in Mental Behavioural Assessment Report by Dr. Williams as described below.
b) The Occupational Therapy In Home ADL Situational Assessment by Jessica Oh, OT is based upon an interview with the applicant that took place on November 16, 2022 over a period of approximately 4 hours with the applicant. The report outlines the purpose of the assessment, an extensive review of documents and reports, accident details, injuries sustained, treatments, medical history, medications, presenting complaints, vocational and personal history, home environment, physical ability measures, activity of daily living and additional assessment tasks. The detail of physical ability measures, activity of daily living and additional assessment tasks is very specific with measurements and findings outlined into charts and. The findings are summarized into the headings of the four domains of function for CAT determination by analysis and categorization into a class to be determined by another health professional qualified to do so. The findings are observational and not diagnostic. I find this report to be very detailed, specific and thorough creating an accurate picture of the applicant’s abilities and limitations, I find it credible and give it significant weight in respect to its scope.
c) The Occupational Therapy Community Situational Assessment Report by Tracie Shaw OT, is based upon an interview with the applicant that took place on October 11, 2022 over a period of approximately 5 hours with the applicant. The report outlines the purpose of the assessment, an extensive review of documents and reports, social history, medical history, accident details, current treatment, current reported issues, medication and equipment use. The assessment of the activities of daily living is detailed, including a comparative chart pre and post accident. The occupational therapy functional assessment is similarly detailed with an analysis charting functions and observations. Behavioural presentation is also recorded and charted. The report is summarized into the headings of the four domains of function for CAT determination by analysis and categorization of a class to be determined by another health professional qualified to do so. The findings are observational and not diagnostic. I find this report to be thorough and very detail oriented, I find it to be credible and assign it significant weight in respect to its scope.
d) The Social Work Psychological Assessment Report by Revital Shuster, MSW is based upon interview and observations of the applicant that took place on October 11, 2022 and November 16, 2022 over 9 hours concurrent with the assessments of Jessica Oh, OT and Tracie Shaw, OT. The report outlines its purpose, personal history of the applicant, accident details and observations during the OT assessments. The report also details collateral interviews with Shane Christensen (Husband), Ola Kuforiji (Psychotherapist), Blake Anderson (Group Therapist), Candice McCallister (Daughter) and Phillip McCallister (Son-in-law) with observations. The report contains a chart describing pre and post accident impairments in the areas of physical impairments, activities of daily living, psychological functioning and social functioning. I find this report to be detailed and particularly thorough including collateral interviews, I find it credible and assign it significant weight in respect to its scope.
e) The Mental Behavioural Assessment Report by Dr. Williams, Psy.D took place on January 10, 2023 during approximately 5 hours with the applicant. The report details the accident history recounted by the applicant, pre-accident history, psychological and vocational history, pre-accident clinical history, post accident functioning psychological diagnosis on file, clinical interview and psychological opinion including author diagnosis. Dr. Williams details her catastrophic impairment opinion findings of Class 4 impairment over all four domains with reference to other authors of the multidisciplinary report. I find this report to be very specific and concise drawing upon the evidence and observations of other assessors in a consistent manner, I find the conclusions to be credible and assign it specific weight. I note her findings in the four domains as follows:
i. Activities of Daily Living: “Ms. Christensen experiences significant limitations which would negatively impact her activities of daily living. Her symptoms related to her diagnoses of Major Depressive Disorder, Somatic Symptom Disorder with Predominant Pain, and Specific Phobia, Situational, including depressed mood, reduced motivation, lowered self-esteem, feelings of hopelessness and helplessness, sleep impairments and fatigue, in-vehicle anxiety, and cognitive compromise would impede all aspects of her activities of daily living. These limitations exceed what would be considered moderate, and significantly impede useful functioning, thereby reflecting marked impairment.”
ii. Social Functioning: “Ms. Christensen experiences significant limitations, which are negatively impacting on her pre-accident usual social functioning. Ms. Christensen has experienced significant difficulty in social interaction and engagement, which has led to social isolation, which was verified and documented in the co-assessor’s reports. Her symptoms related to her diagnoses of Major Depressive Disorder, Somatic Symptom Disorder with Predominant Pain, and Specific Phobia, Situational would impede adequate social functioning. These limitations exceed what would be considered moderate, and significantly impede useful functioning, thereby reflecting marked impairment.”
iii. Concentration, Persistence and Pace – “Ms. Christensen demonstrated symptoms including reduced concentration, attention, focus, fatigue, and difficulty coping with pain. In addition, in review of the co-assessor reports, it is verified that Ms. Christensen demonstrated behaviours which reflected diminished concentration, persistence, and pace. In particular, in my clinical opinion, her diagnoses of Major Depressive Disorder and Somatic Symptom Disorder with Predominant Pain would manifest psychological sequelae including sleep difficulty and fatigue, cognitive compromise (i.e., difficulty with memory, concentration, attention, focus, multitasking) and emotional lability that would negatively impact concentration, persistence and pace. These limitations exceed what would be considered moderate, and significantly impede useful functioning, thereby reflecting marked impairment.”
iv. Adaptation – “Ms. Christensen experiences significant limitations which are negatively impacting her ability to adapt to stressors common to work and/or work-like settings, without deterioration or decompensation. Ms. Christensen’s diagnoses of Major Depressive Disorder, Somatic Symptom Disorder with Predominant Pain, and Specific Phobia, Situational would manifest psychological sequelae including persistent sadness, reduced social interaction, sleep impairments and fatigue, increased anxiety, and cognitive compromise which would impede functioning in this domain. In addition, the co-assessing occupational therapists’ and social worker’s reports confirm that significant impairments impact her ability to adapt to work-like settings following the subject motor vehicle accident. These limitations exceed what would be considered moderate, and significantly impede useful functioning, thereby reflecting marked impairment.”
f) The Integrated Impairment Assessment Report by Dr. Mathoo, Physiatrist is a paper review of the reports in the applicant’s CAT assessment. Dr. Mathoo concluded as follows:
i. Therefore, having sustained at least three Marked impairments that preclude useful functioning among the four spheres of function, Ms. Christensen’s accident-related impairment meets the threshold severity criteria for Catastrophic Impairment according to Criterion 8.
26Dr. Williams was called as an expert witness and testified as to the contents of her report, outlining her process and findings. Dr. Williams did not vary from her report in examination in chief and during cross-examination. I find Dr. Williams to be a credible expert witness with detailed knowledge of the subject matter of the report and a good recollection of the assessment.
27Tracie Shaw was also called as an expert witness and testified as to the contents of her report, outlining her process and findings. Ms. Shaw did not vary from her report in her examination in chief and during cross examination. When questioned in cross examination about the importance of accurate self reporting of the applicant, Ms. Shaw acknowledged relevant items could be missed by either by “being forgotten” or non-disclosure by the applicant. I find Ms. Shaw to be a credible expert witness with detailed knowledge of the subject matter of the report and a good recollection of the assessment, I give her evidence significant weight.
28Ms. Shaw reported the applicant scored 7 out of 17 in the Functional Standardized Touchscreen Assessment of Cognition (FSTAC). This is consistent with the IE report of Rasul Kassam, OT later referenced herein. however, the conclusions of the two OT’s are markedly different. Ms. Shaw concluded:
“Ms. Christensen demonstrated issues across all cognitive domains, consistent with her self-reported difficulty engaging in a range of daily tasks, and consistent with the cognitive interfering effects often seen with pain, poor sleep, and emotional issues.”
29Ms. Shaw made the following summaries of her observations of the four domains of function:
i. Activities of Daily Living - “Overall, Ms. Christensen described feeling overwhelmed and dismayed with her inability to effectively manage the assigned activities. She evidenced behavioural decompensation consistent with her reported status, with evidence of heightened emotions and cognitive inefficiencies severely impacting her ability to manage a range of basic and instrumental activities of daily living.”
ii. Social Functioning – “Overall, Ms. Christensen demonstrated consistent evidence of low mood, anxiety, sad affect, pain, and fatigue that impacted interactions, limited functional activities, and was consistent with her reports of difficulties with social interactions and high levels of social isolation at present.”
iii. Concentration Persistence and Pace – “With persisting encouragement, support, and eventually, a reduction in assigned activities, she eventually engaged in elements of one of the activities (sending a greeting card). Over the course of one hour and forty minutes of functional testing, Ms. Christensen successfully completed very few tasks. In total, Ms. Christensen participated in the current assessment process over the course of five hours and ten minutes, requiring numerous breaks and significant supports while demonstrating a range of cognitive and psychoemotional issues significantly impacting effective function.”
iv. Adaptation – “Overall, Ms. Christensen described a busy, fulfilling daily routine prior to the index motor vehicle accident. At present, she reported very restricted daily activities, roles and routines, with an array of physical, cognitive and psychoemotional limitations evident throughout the present Occupational Therapy assessment process.”
30Ms. Shaw testified that the applicant struggled with cognitive and emotional issues in circumstances when physically able she was still displayed impaired concentration and processing information. During testing the applicant repeatedly had to refer to task cards and required significant cueing; she displayed limited stress tolerance. Ms. Shaw noted the applicant made consistent attempts to return to her activities that she previously enjoyed.
Respondent’s Expert Reports and Testimony
31The respondent’s expert report entitled “Insurer’s Psychiatry examination Catastrophic Impairment Determination” by Dr. Kehnide Aladetoyinbo is dated August 18, 2023. The report outlines the extensive credentials of Dr. Aladetoyinbo, the applicant’s medical history, current medication, mental health history, substance use history, family history, personal history, psychiatric rating scales, mental status examination, summary, analysis of catastrophic impairment and evaluation for catastrophic impairment.
32Dr. Aladetoyinbo reviewed and commented on the report of Dr. Williams. In his report, Dr. Aladetoyinbo at times referred to Dr. Williams mistakenly as Dr. Brown, but also included a reference to a Dr. Brown in error at page 4 of his report while also referencing Dr. Williams, causing significant confusion. Dr. Brown has no bearing or evidence in this proceeding.
33In Dr. Aladetoyinbo’s report he outlines the administration of a Somatic Symptom Scale -8 (“SSS-8”) to the applicant, and reports his findings to be a score of 15 in the High severity of symptoms of somatic burden, however, the applicant submitted that the report contains an error and the score totalled 19 in the Very High severity of symptoms of somatic burden. I find the applicant’s submission in respect to this error to be correct.
34Dr. Aladetoyinbo’s analysis of catastrophic impairment examines the features that increase the likelihood of the possibility of intentional feigning of symptoms including: incongruence between reported symptoms versus observed behaviour, extreme reporting, reporting of rare symptoms, reporting of improbable symptoms, reporting of inappropriate symptoms combinations, indiscriminate symptom endorsement, exaggerating obvious symptoms and overlooking subtle symptoms. Dr. Aladetoyinbo concluded as follows:
Based on the available information she was co-operative. Nevertheless, there appears to be a degree of potential variance between the PHQ 9 scores and objective observations. Also, the MMSE scores appears to be potentially incongruent with her subjective report regarding her concentration. Also, there is a potential variance between the SSS-8 score and objective findings on mental status examination.
35In his report Dr. Aladetoyinbo’s evaluation for catastrophic impairment outlined the four domains of function in detail. He found the applicant had Class 3 [Marked] Impairments in activities of daily living, social functioning and concentration persistence and pace. He found the applicant to have a Class 4 [Marked] Impairment in adaptation. Dr. Aladetoyinbo concluded as follows at page 16 of his report:
Based on the information available, the criterion threshold for catastrophic impairment is not fulfilled under Criterion 8. Final determination on whether the claimant has sustained a Catastrophic Impairment or not is deferred to the Executive Summary.
36Dr. Aladetoyinbo testified in this proceeding and reviewed his report in his examination in chief. I find Dr Aladetoyinbo to be credible witness and accomplished medical practitioner in the field of psychiatry with extensive credentials; he explained his error in the report with respect to Dr Brown in a credible manner.
37Upon cross-examination of Dr. Aladetoyinbo a mistake was revealed in the tabulation of the SSS-8 test administered to the applicant. The error and result elevated the applicant’s symptom burden from high to very high. It is noted that the SSS-8 test was a component of Dr. Aladetoyinbo’s evaluation of catastrophic impairment. I find this error reduces the weight of his expert opinion in respect to potential feigning by the applicant because Dr. Aladetoyinbo included the SSS-8 score in his assessment of risk of potential feigning by the applicant.
38Upon further cross examination of Dr. Aladetoyinbo it was revealed that he had in error used the term “precluding” rather than the correct term of “impeding” in describing and determining the test and findings for each domain of function wherein he found a Class 3 [Moderate] Impairment. It was also revealed that a similar error occurred in describing and determining the domain wherein a Class 4 [Marked] impairment was concluded by the use of the term “impeding” rather than the term “precluding” to determine function.
39I find the terms of “precluding” and “impeding” were conflated in the application of critical tests of Dr. Aladetoyinbo’s report. I find this is a critical error as it conflates the tests for Level 3 Moderate Impairment and Level 4 Marked Impairment; these errors in critical tests call into question the veracity of the conclusions made by Dr. Aladetoyinbo in respect to the applicant’s level of impairment.
40When pressed under-cross examination Dr. Aladetoyinbo could not unequivocally state that there were no other errors in his report. Dr. Aladetoyinbo testified during examination in chief that he used a template for his reports; when questioned under cross examination if he had saved any draft copies of his report, he testified he wrote his report without saving any previous versions of it. During cross examination in this area it was revealed by Dr. Aladetoyinbo one document existed with test data administered to the applicant that was not produced. In find this document was not produced as ordered in the Case Conference Report of January 29, 2024. I find no adverse inference to be drawn by the omission, however, I find the omission lends scrutiny to other areas and highlights other multiple errors contained in Dr. Aladetoyinbo’s report.
41On cross examination, Dr Aladetoyinbo was asked about his review of the documents in the appendix of his report. He testified that while he reviewed the entirety of the documents in the appendix, he reviewed the most relevant documents with greater detail, and did not refer to any documents in the appendix that he did not deem as relevant.
42Dr. Aladetoyinbo did not refer to the extensive surveillance reports contained in the appendix of his report in his testimony, he did not deem the surveillance reports to be important or relevant to the determination of catastrophic impairment. In cross examination Dr. Aladetoyinbo was directed to item #126 at page 24 of his report appendix, and testified the material was not relevant to the determination of catastrophic impairment. I agree with Dr. Aladetoyinbo and find that the surveillance reports are not relevant to the determination of catastrophic impairment. I assign little weight to the surveillance reports, and the associated testimony.
43I find due to the number of errors in Dr. Aladetoyinbo’s report, and errors involving critical aspects of catastrophic determination, little to no weight can be given to the report of Dr. Aladetoyinbo.
44The reports of Rasul Kassam, OT entitled “Insurer’s Occupational Therapy In-Home Examination” dated August 18, 2023 and the report entitled “Occupational Therapy Situational Assessment Report” dated August 18, 2023, are for the purpose of gathering subjective and objective information to determine the claimant’s level of functioning, to be relied upon through observational documentation of the applicant’s function for consideration by the CAT determination assessor.
45Mr. Kassam spent 2 hours with the applicant reviewing her history and administered cognitive function tests and measured her range of motion for his in-home assessment. The in-home examination resulted in Mr. Kassam findings in the four domains as follows:
i. Activities of Daily Living – “Ms. Christensen is independent in her self-care tasks, however, she requires extra time to complete her personal care routine due to pain, fatigue, decreased tolerances, guarding behavior, and low mood.”
ii. Social Functioning – “Ms. Christensen reported that initially her friends reached out, however as she was always in pain, is unable to drive, her interactions became less frequent until they stopped all together. Ms. Christensen reports that she does not initiate any calls and prefers to stay home away from people. As a result, Ms. Christensen reportedly avoids going out and engaging in social situations as she reports that she does not like people seeing her this way and would rather be by herself.”
iii. Concentration Persistence and Pace – “Based on this assessor’s observations and claimant’s reports, Ms. Christensen was noted to display no difficulties in her cognition, however worked at a quick pace and did not follow through on all tasks asked of her due to her pain, guarding behavior, and low mood.”
iv. Adaptation – “Ms. Christensen endorsed fatigue, pain, decreased tolerance, left shoulder dysfunction and diminished psycho-emotional status. As a result, Ms. Christensen has adapted her self-care tasks, showering, dressing and grooming tasks. Ms. Christensen, relies on her husband and sons to assist with meals and housekeeping tasks, rarely goes out due to fear of re-injury, low mood, and depression. Ms. Christensen reportedly has stopped her leisure pursuits, avoids driving as she rarely leaves the home.”
46Mr. Kassam spent 1 hour with the applicant on his situational assessment; it was noted the applicant declined outside of home testing including the grocery test.
47Mr. Kassam reported that in the administration of the Functional Standardized Touchscreen of Cognition (FSTAC), the applicant passed 6 of 16 tests taking approximately 29 minutes to complete it. He further stated:
“Unfortunately, it is this assessor’s opinion that Ms. Christensen did not provide a consistent effort as she skipped over the medication management and grocery shopping tasks due to her reported low mood and decreased patience with the test.“
48However, upon cross examination of Mr. Kassam it was revealed that the applicant engaged in part of the grocery shopping task by completing a grocery list. I find that the applicant did not decline or “skip over” the grocery shopping task in its entirety as stated in Mr. Kassam’s report, I find this inconsistency in evidence reduces the overall weight of the report.
49Further, in cross examination of Mr. Kassam it was revealed that he had no recollection of the surveillance reports included in his appendix. Upon questioning Mr. Kassam further indicated that had he deemed the surveillance reports relevant to CAT determination observations, he would have included it in his report. I agree with Mr. Kassam’s testimony that the surveillance reports included in his appendix are not relevant to CAT determination.
Conclusions in respect to CAT
50I find the report entitled “Catastrophic Impairment Determination Multidisciplinary Assessment Report” dated March 16, 2023, to be good and sufficient evidence on the balance of probabilities, of a marked impairment in all four domains.
51I find the report of Dr. Williams to be persuasive evidence that the applicant had a catastrophic impairment under criterion 8 of the Schedule. I find the respondent was unable to present persuasive expert evidence to refute the applicant’s expert evidence. Specifically, I find the evidence contained in the report by Dr. Aladetoyinbo to be of little or no weight due to multiple and critical errors.
52I find the ratings for each domain to be as follows:
i. Activities of Daily Living – Marked impairment – I find Ms. Shaw’s observations of the applicant to be consistent, specifically that the applicant was overwhelmed and dismayed with her inability to effectively manage assigned activities, and demonstrated behavioural decompensation consistent with evidence of heightened emotions and cognitive inefficiencies severely impacting her ability to manage basic activities. I find Mr. Kasam’s observations helpful that applicant was limited due to decreased tolerances, guarding behavior, and low mood. I agree with Dr. Williams that the diagnoses of Major Depressive Disorder, Somatic Symptom Disorder with Predominant Pain, and Specific Phobia, Situational would significantly impede normal functioning of daily tasks, and find the applicant to have a marked impairment in this domain.
ii. Social Functioning – Marked Impairment – I find Ms. Shaw’s observations helpful reporting of the applicant’s low mood, anxiety, sad affect, pain, and fatigue that impacted interactions and limited functional activities, resulting in high levels of social isolation. I find helpful Mr. Kassam observed the applicant avoids engaging in social situations as she states she does not like people seeing her this way and would rather be by herself. I agree with Dr. Williams that significant difficulty in social interaction and engagement, has led to social isolation. I find the applicant’s social isolation significantly impedes her social function to the level of a marked impairment.
iii. Concentration, Persistence and Pace -Marked Impairment – I find helpful the following observations made by Ms. Shaw of the applicant over the course of functional testing, that she was able to successfully complete very few tasks while requiring numerous breaks and demonstrating a range of cognitive and psychological issues significantly impacting effective function. I also find helpful Mr. Kassam’s observation that the applicant’s guarding behaviour impacted her task completion. I find these observations consistent with Somatic Symptom Disorder, and together with successful completion of very few functional tests, to be evidence her symptoms significantly impedes concentration, persistence and pace to the level of a marked impairment.
iv. Adaptation – Marked Impairment – I find helpful Ms. Shaw’s observations that the applicant is very restricted daily activities, roles and routines, with physical, cognitive and psychological limitations evident throughout the assessment process. I also find helpful Mr. Kassam’s observations that the applicant relies on her husband and sons to assist with meals and housekeeping tasks, rarely goes out due to fear of re-injury, low mood, and depression. I agree with Dr. Williams that the applicant experiences significant limitations which are negatively impacting her ability to adapt to stressors common to work and/or work-like settings. I find the applicant’s symptoms in this domain to significantly impede adaptation to the level of a marked impaired.
53I find that the applicant has discharged her onus for the burden of proof on a balance of probabilities, that she has sustained a marked impairment in all four domains of function and the applicant has sustained a catastrophic impairment pursuant to criterion 8 of the Schedule.
54I find the treatment plans in dispute are not reasonable and necessary for the following reasons.
55To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
56The applicant gave testimony during the course of the hearing that she believed the treatment plans in dispute were reasonable and necessary for her to “get better.” I find the applicant to be credible and believe her evidence to be true from her perspective.
57The applicant did not identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs are reasonable.
58No expert evidence was submitted or referred to in support of the disputed treatment plans being reasonable and necessary. The applicant did not relate any of the expert evidence available to the treatment plans in dispute.
59I find the applicant’s testimony that the treatment plans in dispute were reasonable and necessary is not sufficient to discharge the applicant’s onus. The applicant did not take the opportunity to identify the goals of the treatment plans and how it would be met, nor whether the cost was reasonable.
60Further the applicant led no evidence with respect to attended care benefits, Form 1, or assistive devices, nor did the applicant present any submissions with respect to these items.
Interest
61No interest is payable pursuant to s. 51 of the Schedule as the applicant is not entitled to the treatment plans outlined in the issues in dispute.
ORDER
i. The applicant has sustained a catastrophic impairment as defined by the Schedule.
ii. The applicant is not entitled to the treatment plans in dispute.
iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Released: November 18, 2024
Robert Maich
Vice-Chair
