Licence Appeal Tribunal File Number: 23-015136/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:
Mohamed Egal
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Tami Cogan
APPEARANCES:
For the Applicant:
Mark Stoiko, Counsel
For the Respondent:
Jennifer Cosentino, Counsel
Heard by Videoconference:
October 7, 8, 9, 10, 2024
OVERVIEW
1Mohamed Egal, the applicant, was involved in an automobile accident on January 11, 2012, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUE
2The issue in dispute is:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
RESULT
3The applicant has not sustained a catastrophic impairment as defined by the Schedule.
4The application is dismissed.
PROCEDURAL ISSUES
Conflict of interest between Masgras Law, Spinetec Health Care Solutions, and Meditecs Health Management
5I denied the respondent’s motion to make a conflict of interest finding and exclude witnesses.
6At the onset of the hearing, the respondent sought an order from the Tribunal finding that a conflict of interest exists between the applicant's counsel and the owner and operator of the facilities known as Spinetec and Meditecs. The respondent relies on the Superior Court case of Ashrafian v. Karvarna 2023, ONSC 6944 (“Ashrafian”), where the court made a finding that there was a conflict of interest between Masgras Law, the applicant’s counsel’s law firm, and Spinetec and Meditecs, which are the clinics that assessed and provided treatment to the applicant in this matter. The respondent also raised a motion to exclude witnesses and productions from Spinetec and Meditec.
7The applicant objected to the motion and submitted that in the case at hand, the applicant was aware of the relationship between the treatment facilities and the law firm and consented to treatment. Also, no witnesses are being called from the treatment facilities and the Tribunal can give weight to the documents.
8I acknowledge that in Ashrafian, the court made a finding that there was a conflict of interest between Masgras Law, Spinetec, and Meditecs. However, I find this decision is distinguishable as the case related to the assessment costs invoiced to the insurance company in a tort matter. The case at hand is an application for a determination of catastrophic impairment under the Schedule. Further, the applicant is aware of the purported conflict, which removes the entire concern from Ashrafian that the applicant did not know. I find the relationship between the treatment facilities and the law firm are not presumptively a conflict of interest. The respondent has the opportunity in submissions to identify how the relationship between the two entities has influenced the evidence, if at all. Section 15(1) of the Statutory Powers Procedure Act (the “SPPA”) provides that the Tribunal may admit at a hearing, any oral testimony and any document or other thing that is relevant to the subject-matter of the proceeding. The documents the respondent seeks to exclude are presumptively relevant to the determination of a catastrophic impairment. I find these documents should be admitted per section 15 of the SPPA.
9The respondent has conducted their own independent medical assessments of the applicant and has the opportunity to present their evidence to dispute the assessments tendered by the applicant.
10I am denying the respondent’s request to find a conflict of interest exists, and to exclude evidence of the treatment facilities. The parties were invited to make their arguments on weight in their closing submissions.
ANALYSIS
Catastrophic Impairment, Criterion 8
11I find the applicant has not established that he has sustained a catastrophic impairment as defined by the Schedule for the reasons that follow.
12The applicant is claiming a catastrophic impairment under s. 3(1) criterion 8 of the Schedule as a result of an accident that occurred in 2012. In order to establish entitlement, the applicant must demonstrate he suffered an accident-related impairment that resulted in a marked (class 4) impairment in one or more areas of function, or an extreme (class 5) impairment in one or more areas of function according to the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment (the “Guides”), 4th Edition, due to a mental or behavioural disorder.
13Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides set out the four areas or “spheres” of functioning and the relative levels of impairment. The test to determine whether the applicant has sustained a catastrophic impairment is a legal one and not a medical one. See: Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571, at paras 29-30.
14The four spheres of functioning are set out in the Guides as follows:
i. Activities of daily living;
Activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities…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 or initiating and participating in these activities independent of supervision or direction. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
ii. Social functioning;
An individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others such as family members, friends, neighbours, grocery clerks, lenders, etc. Impaired social functioning may be demonstrated by 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.
iii. Concentration, persistence, and pace;
Concentration, persistence, and pace needed to perform many activities of daily living, including task completion. Task completion refers to the ability to sustain focussed attention long enough to permit the timely completion of tasks commonly found in activities of daily living or work settings… Strengths and weaknesses in mental concentration may be described in terms of frequency of errors, the time it takes to complete the task and the extent to which assistance is required to complete the task.
iv. Adaptation to work or work-like settings;
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 signs and symptoms… He or she may decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stressors common to the environment include attendance, making decisions, scheduling, completing tasks and interacting with others.
15The levels of impairment are set out and defined in the Guides as follows:
i. Class 1: No impairment;
No impairment is noted.
ii. Class 2: Mild impairment;
Impairment levels are compatible with most useful functioning.
iii. Class 3: Moderate Impairment;
Impairment levels are compatible with some, but not all useful functioning.
iv. Class 4: Marked Impairment;
Impairment levels significantly impede useful functioning.
v. Class 5: Extreme Impairment;
Impairment levels preclude useful functioning.
16The applicant’s position is that he has suffered a class 4, marked impairment in the sphere of concentration, persistence, and pace. The applicant relies on the catastrophic impairment assessment completed by Dr. Romeo Vitelli, psychologist, dated November 25, 2019, in which the applicant was assessed as having a marked impairment in three spheres of functioning. Further, the applicant relies on the clinical notes and records of Dr. Sean Welling, family doctor, and a pain medicine independent medical evaluation completed by Dr. Mark Friedlander, physiatrist, dated November 11, 2020, in which the applicant submits Dr. Friedlander diagnosed Chronic Pain Syndrome.
17The respondent’s position is that the applicant is not catastrophically impaired as evidenced by the psychological assessment report completed by Dr. Mark Lubbers, psychologist, dated April 7, 2017, and the multi-disciplinary catastrophic impairment assessment reports of Dr. Shariff Dessouki, physical medicine and rehabilitation specialist, Dr. Konstantine Zakzanis, neuropsychologist, Dr. Henry Rosenblat, psychiatrist, and Mihwa Lee, registered occupational therapist, dated April 27, 2021, and the catastrophic impairment addendum reports from the same experts, dated October 29, 2021 and February 28, 2022.
18I find the report of Dr. Vitelli, in which he deemed the applicant catastrophically impaired, unpersuasive because in my view his opinion is unsubstantiated and largely inconsistent with the majority of the documents listed as having been reviewed and that were summarized in his report.
19The reports reviewed and summarized in Dr. Vitelli’s report date back as far as July 2010. Dr. Vitelli summarizes the information and opinions from these reports, such as;
i. The August 19, 2013 multidisciplinary assessment report and September 26, 2013 multidisciplinary assessment addendum report of Dr. Gilbert Yee, orthopaedic surgeon, Dr. Mark Watson neuropsychologist, and Ms. Sabrina Anand, occupational therapist, identifies that the applicant reported he was not employed at the time of the accident. The applicant is independent with personal care, housekeeping and home maintenance chores. The report opined that the applicant is not catastrophically impaired.
ii. The January 18, 2017 multidisciplinary chronic pain assessment report of Dr. Edward Shane, and Dr. Jack Lefkowitz in which the applicant reported that at the time of the accident he had been employed for one year as a general labourer through an employment agency and worked 40 hours per week and was doing high school upgrading courses. Further, the applicant reported having suffered a jaw fracture prior to the accident which resulted in a speech impediment. There is no mention of any prescription for pain medication.
iii. The April 7, 2017 psychology assessment report of Dr. Ralph Lubbers, psychologist stated that two years prior to the accident the applicant sustained a jaw fracture that required surgery to wire his jaw shut for six months, which resulted in a change to his speech, causing others to often ask him to repeat himself which has eroded his self-confidence and to withdraw from social settings. Based on the psychometric testing, Dr. Lubbers called into question the validity of the results and concludes the applicant does not suffer from a diagnosable DSM-5 mental or behavioural disorder as a result of the accident. The applicant also denied taking any prescribed medication at the time of the assessment. The applicant had been living with his girlfriend for approximately two and a half years. Dr. Lubbers stated that the applicant’s reports of having lost consciousness at the time of the accident is unsupported by the collateral documentation; and
iv. The March 15, 2018 physiatry assessment report of Dr. Tonya Ballard, in which the applicant reported no significant musculoskeletal injuries or hospitalizations, however Dr. Ballard’s documentation review identified the jaw fracture and related surgery. The applicant reported taking an analgesics medication however the name and dosage were unknown. The applicant reported that at the time of the accident he was not employed but was taking high school upgrading courses fulltime and did not miss any time from class following the accident. Dr. Ballard states the applicant reported being independent with his self-care, has returned to his housekeeping tasks and has returned to playing tennis and basketball.
Instead, Dr. Vitelli relies heavily on the Occupational Therapy Catastrophic Impairment Determination Report by Julian Amchislavsky dated November 5, 2019, which is not in evidence. I am not persuaded by Dr. Vitelli’s opinion because he references Julian Amchislavsky’s conclusions but does not provide supporting details, such as observations, or an explanation of what tests, exercises, or tasks were used to reach those conclusions. The information quoted from Mr. Amchislavsky’s report is mainly subjective reporting from the applicant.
20In his report Dr. Vitelli states that the applicant reported having lost consciousness from the time he was struck until he woke up at the hospital, and then identifies the discrepancy of that statement with the hospital records which indicate he had not lost consciousness. However, no further comment is made.
Dr. Vitelli notes the applicant’s jaw fracture and surgery but does not mention any resulting deficits in his social life. The applicant reported to Dr. Vitelli that he does not work and had been on Ontario Works since 2012, which is inconsistent with his testimony that he was working through an employment agency in 2018 and 2019. Dr. Vitelli is the only doctor who opined the applicant was not independent with his personal care and daily activities of living.
21I prefer the psychological assessment report completed by Dr. Ralph Lubbers, psychologist, dated April 7, 2017 because the applicant provided information to Dr. Lubbers that is not documented in Dr. Vitelli’s report, and which provides a very different picture of the applicant’s life in comparison. During the assessment with Dr. Lubbers the applicant denied symptoms associated with posttraumatic stress disorder, severe anxiety, or significant major depressive disorder, and denied avoidance of public transit. The applicant had not requested psychological/mental health assistance. The applicant endorsed being independent with personal care, using public transit, typically reading for two hours a day, being on the internet for two hours a day, and watching television for four hours a day, being able to follow instructions and learn new games on his PS3, and attending mosque five or six days per week. I find these activities demonstrate a strong ability for concentration, persistence, and pace because reading, watching television, and internet usage requires concentration and being able to do these activities for hours demonstrates persistence, and the ability to pace oneself to engage in multiple activities in a day. I do not accept the applicant’s submission that these activities do not exemplify the tasks found in the workplace because reading, internet usage and following story lines or dialogue are inherent in many types of employment.
22I find that the additional information provided to Dr. Lubbers by the applicant supported a more accurate assessment of the applicant’s condition than Dr. Vitelli’s account. Dr. Lubbers report also corroborates the catastrophic impairment assessment report of Dr. Henry Rosenblat.
23I am persuaded by the assessment, report and testimony of Dr. Rosenblat, because he has used the correct Guides criterion, Chapter 14, to measure the applicant’s level of impairment under criterion 8. That is, he used an evaluation of the applicant’s functional abilities. Dr. Vitelli’s calculation of the applicant’s level of impairment is inaccurate because Dr. Vitelli used Chapter 4, Table 3 of the Guides, which is specific to the nervous system or neurological disorders and only considers social and interpersonal daily functions. As a result, Dr. Vitelli has made an incomplete estimation of impairments defined in Chapter 14, specific to mental and behavioural disorders, which are considered in Criterion 8. Dr. Rosenblat opined the applicant suffered three class 2 - mild impairments, and one class 3 - moderate impairment and is not catastrophically impaired. In my view, Dr. Rosenblat’s assessment leads to a more reliable conclusion because he had the benefit of a more complete picture of the applicant’s life in comparison to the information that was documented in Dr. Vitelli’s report.
24I have considered the information provided by the applicant to Dr. Rosenblat, such as; that he is independent with his personal care. On the questionnaire the applicant denied involvement with any leisure activities, but during the interview he acknowledged using a computer for two hours a day, he is active on social media, he watches movies and plays games. He can play for up to one hour at a time on his own, and two hours if he is playing with other people. He watches television a couple of hours per day and is able to understand and remember what he watches. He is good at following instructions and will understand them, for example, how to play a video game. The applicant reported that after the accident he would play basketball with his friends, when the weather was better. He would play for a total of thirty minutes in a day every two days. The applicant manages his own finances. He has the same friend now as before the accident and sees the two to three times a week. He reported being sexually active every two or three days, which is the same as before the accident. He reported he has had three girlfriends since the accident. He manages his prescription medication for pain and migraines himself. At the time of the accident, he was upgrading his high school courses, and completed them four months after the accident. The applicant attends the mosque every day or two and will socialize when he is there. The applicant reported that he returned to work in 2018 in light duty work. His job was through an employment agency. For four months he was building barbecues. He stopped because the agency wanted to send him to do a heavier job. He reported that he would go back to the barbecues if it was offered to him. The applicant participated in the assessment for three and a half hours without a break and completed tasks within a reasonable timeframe. The occupational therapy assessment that Dr. Rosenblat relied on in his report contained specific examples of the applicant’s performance which supported the stated conclusions. Dr. Rosenblat rated the applicant as having a mild impairment in the sphere of ADLs, a mild impairment in the sphere of Social Functioning, a moderate impairment in the sphere of adaptation, and a mild impairment in the sphere of concentration, persistence and pace. Based on the information provided by the applicant to Dr. Rosenblat, I agree with Dr. Rosenblat’s conclusion that the applicant has not suffered a catastrophic impairment as a result of the accident.
25I find that the information documented in Dr. Lubbers’ and Rosenblat’s reports were also corroborated by the applicant’s testimony. The applicant testified that for five months he worked at a printing company on a fulltime basis in 2017, and through employment agencies he has held several positions in 2018 and 2019. The applicant acknowledged that since the accident he has had a long-term relationship with an intimate partner. The applicant also testified to his recreational activities and ability to watch television and play video games for several hours at a time, which undermines his claim of a mark impairment in concentration, persistence and pace.
26I note that the quantitative data provided by the Global Assessment of Functioning (GAF) can provide comparators of the otherwise subjective opinion on the applicant’s level of function.
i. Dr. Vitelli rated the applicant’s GAF as 59 – 66; some mild symptoms such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships.
ii. Dr. Rosenblat calculated the applicant’s GAF to be 55 – 53; moderate symptoms, such as flat and circumstantial speech, occasional panic attacks, or moderate difficulty in social occupational, or social functioning.
Although Dr. Rosenblat found the applicant to have a lower GAF score, which is a lower level of functional impairment, than did Dr. Vitelli, the level of impairment does not reach the level of a marked impairment or catastrophic impairment under criterion 8 of the Guides.
27I find the Pain Medicine Independent Medical Evaluation completed by Dr. Friedlander, physiatrist, is of little assistance to the determination of the applicant’s level of catastrophic impairment. Dr. Friedlander refers to the criteria needed to diagnose chronic pain syndrome and identifies seven of eight criteria he attributes to the applicant. However, I find the report is not persuasive because the opinion is unsupported by any detail as to how the conclusions were reached. I note that Dr. Friedlander was not informed by the applicant of his level of participation in recreational activities or his full work history since the accident, to which the applicant testified.
28I prefer the report and testimony of Dr. Shariff Dessouki, physiatrist, because he also identified the criteria for a chronic pain syndrome diagnosis but specified the reasons he believed the applicant did not met the criteria for a diagnosis of chronic pain syndrome. Dr. Dessouki opined that the applicant is not overusing or dependant on pain medication, he only takes Tylenol. The applicant is independent with personal care and housekeeping chores and not dependant on anyone. The applicant does not have an excessive dependence on medical specialist and reported that physical therapy is not helpful. Furthermore, the applicant has full range of motion, and the physical examination is not consistent with the applicant experiencing immobilization or inactivity. Dr. Dessouki opined that the applicant had sustained uncomplicated sprain/strain injuries to the cervical and lumbar spine as a result of the accident.
29In my view the applicant is a poor historian and there are inconsistencies in the information provided by the applicant during clinical interviews and during his testimony. The applicant has reported and testified to having lost consciousness. The duration of the loss of consciousness the applicant has reported has varied from a few minutes to a few hours. The applicant has reported and testified to having no romantic relationships since the accident, to having had three girlfriends, to having lived with his girlfriend for two and a half years. His sexual activity has been reported in a range from being non-existent, to being as frequent as 3 times a week. The applicant’s injuries sustained and symptoms prior to the accident are often left out of his reporting and testimony until confronted with medical records, and even then, are sometimes denied, such as his history of headaches. I am persuaded by the clinical notes and records of Dr. Eli Alegado, on January 23, 2012 that documented the applicant’s history of migraine headaches for fifteen years prior to the accident.
30The applicant has inconsistently reported his social outings. I have considered that it is very difficult for the assessors to make accurate determinations of the applicant’s level of impairment without all the facts. In my view, the assessors who were provided more information about the applicant’s recreational activities, employment and schooling, medical history and relationships, did not find him to be catastrophically impaired. However, the assessors who were provided limited information, rated the applicant’s level of impairment to be higher. In reaching my conclusion, I cannot assume the applicant’s reporting of his symptoms and limitations has been any more accurate than the rest of his reporting and I have not heard a persuasive reason for the discrepancies.
31I note this high level of inconsistent reporting carries over to his work history, which also affects the Criterion 8 analysis for concentration persistence and pace needed to perform many activities of daily living or tasks in work settings. The applicant has reported working fulltime at the time of the accident, to not working, to being in school, and also to working and being in school. The inconsistency of his work history continues after 2016. The applicant reported to Dr. Vitelli and testified to having not worked since the accident. However, in the face of Statements of Remuneration for 2018 and 2019, the applicant admitted to having been employed by Employment Agencies who assigned him several different contracts. The applicant has also been inconsistent with his reporting of his physical/social activities, such as playing basketball, which in 2014 he reported to Dr. Christopher Overgaard that he plays every other day and reported to Dr. Rosenblat he played every two days but only good weather. The applicant inconsistently reported leisure activities, such as playing video games, and reading which he testified he can do for hours.
32I have considered that the applicant generally denied any physical activity due to pain, however, I heard little evidence regarding frequency of errors or the extent to which the applicant requires assistance to complete tasks. When I consider the applicant’s activities that he has reported, I conclude the applicant has the ability to sustain focus and attention long enough to permit the timely completion of tasks at a level that does not reach a marked impairment. I find the applicant has a class 2, mild impairment in the sphere of concentration, persistence and pace.
33I find that the applicant has not met his evidentiary burden of proof, on a balance of probabilities that he has sustained a catastrophic impairment as defined by the Schedule.
ORDER
34The applicant has not sustained a catastrophic impairment as defined in the Schedule.
35The application is dismissed.
Released: December 11, 2024
Tami Cogan
Adjudicator