Begum v. Intact Insurance Company, 2024 CanLII 126298

Citation: Begum vs. Intact Insurance, 2024 ONLAT 23-010283/AABS

Licence Appeal Tribunal File Number: 23-010283/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:

Mussammat Begum

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Alice Xiao, Counsel

For the Respondent: Eluxameenah Rishihesan, Counsel Raman Pandher, Counsel

HEARD: by Videoconference: September 9-13, 2024

OVERVIEW

1Mussammat Begum, the applicant, was involved in an automobile accident on July 25, 2020, 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 Intact Insurance Company, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issue(s) in dispute are:

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

ii. Is the applicant entitled to attendant care benefits in the amount of $10,340.56 per month from July 25, 2020, to March 17, 2021?

iii. Is the applicant entitled to attendant care benefits in the amount of $2,456.76 per month from March 18, 2021, and ongoing?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant is not catastrophically impaired.

4The applicant is not entitled to payment for attendant care.

5The applicant is not entitled to interest.

6The respondent is not liable to pay an award.

PROCEDURAL ISSUES

7The respondent filed two motions before the hearing.

8The first motion asked for an order to exclude the applicant’s supplementary brief as it contains two late documents. One is a rebuttal report written by Dr. Emily Gavett-Liu, psychiatrist. The second document is an updated report by Ms. Sonia Sharma, occupational therapist, which contains cognitive and other testing information. According to the respondent, these recently created documents had not been reviewed by its experts and, as such, the respondent is prejudiced because it cannot respond to the applicant’s case.

9The applicant submitted that these documents were only recently created and could not have been submitted any earlier. The applicant also conceded that the respondent was prejudiced by the recent testing information in the second document and asked that these documents to be struck, and for the remainder of the supplementary brief to be entered into evidence.

10The respondent subsequently agreed that the rebuttal report does not contain new information and that it was not prejudiced by this document. It also agreed that striking the testing information from Ms. Sharma’s report removed any further prejudice, and that it was agreeable to entering the remainder of the applicant’s supplementary brief.

11Consequently, I struck pages 37 to the top of page 39, and pages 48 to 50 as these the pages contained the testing information, and then entered the remainder of the supplementary brief into evidence. I did so because the documents in the brief are relevant and also because striking certain pages ensured that the respondent would not be prejudiced by this late disclosure.

12The second motion was for a summons to be issued to Dr. Gavett-Liu, who had already been summonsed by the applicant. The respondent was concerned about this witness testifying on the last day of the hearing. It submitted that this was procedurally unfair because it would have to begin presenting its case without knowing the case to which it was responding. To correct this, the respondent asked for a summons to compel Dr. Gavett-Liu to testify earlier in the week, before the respondent opened its case.

13The applicant submitted that Dr. Gavett-Liu was not available to testify before the last day of the hearing.

14The parties subsequently agreed to proceed on the last day of the hearing with Dr. Gavett-Liu’s testimony, followed by the testimony of the respondent’s psychiatrist. The respondent agreed that having the applicant’s psychologist testify first mitigated the fairness issue. As such, the respondent’s concerns were addressed through these arrangements and the there was no need to further consider the motion for a summons.

15The respondent requested an order excluding Ms. Sharma from testifying. It submitted that the full amount of eligibility for attendant care was approved and that the parties were only disputing whether the applicant incurred attendant care. According to the respondent, Ms. Sharma’s testimony is not relevant because she only assessed the applicant’s attendant care needs and could not speak to whether this benefit had been incurred.

16The applicant submitted that Ms. Sharma can speak to the applicant’s functional abilities and that this relates to the issue of catastrophic impairment.

17I did not order the exclusion of Ms. Sharma’s testimony because I agreed that testimony on the applicant’s ability to function is relevant to the issue of catastrophic impairment.

ANALYSIS

Catastrophic Impairment

18A catastrophic impairment under Criterion 8 results when an insured person sustains three or more class 4 impairments (marked impairments), or a class 5 impairment (extreme impairment) in the areas of function in an accident pursuant to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides), 4th edition. The four areas of function in Criterion 8 are activities of daily living (ADL), social functioning, concentration, persistence and pace (CPP), and adaptation.

19Page 301 of the Guides sets out the five levels of impairment, ranging from a Class 1 No Impairment to a Class 5 Extreme Impairment, as noted 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

Adaption (in a work-like setting)

Activities of Daily Living (ADL)

20This area of functioning evaluates a person’s ability to engage in activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities.

21Dr. Emily Gavett-Liu, psychiatrist, wrote a report dated October 17, 2023 in which she determined that the applicant has a Somatic Symptom Disorder and a Major Depressive Disorder. She attributed these accident related psychological injuries to causing a decrease in the applicant’s ability to complete her ADL.

22Dr. Gavett-Liu’s report notes that prior to the accident the applicant was independent in her self-care, hygiene, home-care activities, vocational and avocational activities. Since the accident, she reports that the applicant continues to be independent with self grooming, dressing and undressing, feeding, and toileting, and occasionally requires assistance reaching behind her head when showering, cutting toenails, and putting on socks. She also reports that the applicant can walk independently for up to 30 minutes before she has too much pain, has no libido, and sleep disturbances.

23Dr. Gavett-Liu goes on to cite a lengthy passage from the report of Kristin Popowich, dated September 12, 2023. Ms. Popowich reports that before the accident the applicant completed housekeeping tasks, grocery shopping, and prepared family meals. She also worked as a stock investor from her home computer. Since the accident, house cleaning duties are performed by her spouse and two adult children. Her husband performs grocery shopping and cooks under the direction of the applicant. Ms. Popowich asked the applicant to complete some household tasks such as preparing a hot beverage and making a bed, but the applicant was unable to complete these tasks in a satisfactory manner because of pain, headaches, and fatigue.

24Dr. Gavett-Liu rated the applicant as having a Class 4 Marked impairment in the ADL. The applicant relies on this opinion to establish that she has a marked impairment in the ADL.

25The respondent submits that no weight should be given to the ADL rating in Dr. Gavett-Liu’s report because no explanation is provided as to whether these limitations are caused by physical or mental and behavioural impairments.

26I note that in testimony, Dr. Gavett-Liu agreed that the July 22, 2022 report of Dr. Jacqueline Auguste, orthopaedic surgeon, and the April 6, 2023 report of Dr. Michael Kliman, orthopaedic surgeon, show that the applicant has genuine physical injuries that produce genuine pain. She also testified that the applicant’s pain symptoms cannot be viewed as being in two separate buckets of physical and somatic pain. Instead, she views the applicant’s pain symptoms as being “in a lake” that contains both types of pain.

27Dr. Chandrasena, psychiatrist, completed an Insurer Psychiatry Examination dated May 28, 2024 to address whether the applicant is catastrophically impaired under Criterion 8. He diagnosed the applicant with a Post-traumatic Stress Disorder (PTSD), and a Major Depressive Disorder.

28Dr. Chandrasena testified that somatic pain occurs when the pain experienced from an injury is in excess of what is to be expected. According to him, the applicant has genuine physical injuries and her pain experience is consistent with those injuries. For this reason, he does not attribute her avoidance or inability to complete certain ADL as being somatic or psychological in nature. He rated the applicant as having a Class 3, Moderate impairment in the ADL because her sleep and libido have been impacted, and also because of the overall decrease in daily activity.

29The applicant submits that there is no orthopedic diagnosis to explain the high level of pain experienced by her. I disagree. The applicant’s physical injuries are documented by Dr. Michael Kliman, orthopaedic surgeon. His assessment dated April 6, 2023 details how the applicant was struck by a vehicle on her left side. This resulted in various injuries to her left knee, including a fracture of the lateral tibial plateau, damage to the articular surface, and post-traumatic arthritis. His diagnosis is based on a CT scan dated July 26, 2020. During this assessment, the applicant complained of continual pain in her left leg which is aggravated by anything beyond minimal weight bearing. He noted that her antalgic gait favours her left leg. He also tested the range of motion of the applicant’s knee which was also limited by pain. He gives no indication that the applicant’s pain experience is in excess of what would normally be expected in these circumstances. He also diagnoses her with having sustained severe arthritic changes as a result of accident and that she is a candidate for left knee replacement.

30Dr. Jacqueline Auguste, orthopaedic surgeon, conducted three insurer examinations (IEs) for the respondent which are dated September 2, 2021, August 10, 2022, and September 8, 2023. She determined in these reports that the accident related injuries to the applicant’s left knee have healed and the pain in her left knee is caused by degenerative arthritis. Her diagnostic findings rely on an x-ray from October 28, 2020.

31Dr. Auguste lists the CT scan of July 26, 2020 as one of the documents she reviewed in her reports. As such, she is aware of the damage to the articular surface of the applicant’s left knee. However, she is silent on the effects of this injury and instead attributes the applicant’s worsening left knee pain to the “mild” degenerative changes identified in the x-ray from October 28, 2020. I prefer the report of Dr. Kliman because his findings take into account the full scope of the accident related injuries to the applicant’s left knee. I also further find that her left knee pain is caused by the accident related injuries as diagnosed by Dr. Kliman.

32In testimony, Dr. Gavett-Liu agreed that it is difficult to distinguish between the genuine pain is caused by physical injuries and the applicant’s somatic pain. In my view, the orthopedic report of Dr. Kliman is clear evidence that the applicant sustained physical injuries in the accident which continue to cause significant pain. There is no clear evidence in this proceeding that the level of pain experienced by the applicant is disproportionate to her injuries. For these reasons, I prefer Dr. Chandrasena’s opinion and find that the applicant did not sustain a Somatic Symptom Disorder.

33There is consensus between Dr. Gavett-Liu and Dr. Chandrasena in regard to the applicant’s depressed mood impacting her ability to complete the ADL. For example, the applicant’s social activity, ability to sleep, and libido have been impacted by depression. Her basic ADL, such as hygiene, grooming, ability to dress and undress, and the ability to walk have not been impacted by psychological symptoms.

34I also note that genuine pain limits the applicant’s ability to prepare food, but she is able to instruct her husband in the kitchen on how to prepare meals for her family. Her ability to instruct others, which is all she can do because of physical pain, shows independence in completing the complex task of preparing South Asian cuisine and is an example of good functioning.

35The applicant’s impairment in the area of the ADL are primarily due to pain caused by the physical injuries she sustained in the accident. Her mental and behavioural disorders have caused impairments that are compatible with some, but not all useful functioning. For this reason, I find that she sustained a Class 3, Moderate Impairment in the area of the ADL.

Social Functioning

36Social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with others. This includes the ability to get along with family members, friends, neighbours, grocery clerks, landlords, and other members of the public.

37Dr. Gavett-Liu and Dr. Chandrasena agree that the applicant had no functional impairments in the area of social functioning prior to the accident.

38Post-accident, Dr. Gavett-Liu report notes that the applicant no longer has people over to her home because she cannot cook and, therefore, feels she cannot be a good host. According to Dr. Gavett-Liu, the applicant also does not want to leave her home. She also states that the applicant does not want to speak with anyone and has severed all social connections. She rated the applicant as having a Class 4, Marked Impairment in social functioning.

39Dr. Chandrasena’s report notes that the applicant is socially isolated due to pain and pain preoccupation, which he does not view as being part of a psychological disorder under Criterion 8. He also notes that she keeps in touch with some family member by texting and with her brother in Bangladesh, and that her impairment levels are compatible with some useful functioning. He rates the applicant as having a Class 3, Moderate impairment.

40The applicant testified that prior to the accident, she would have people over to her home for meals, had a healthy relationship with her spouse and children, spoke with friends over the phone, and frequently spoke and texted with her brother. Since the accident, she has not had people over to her home, and does not communicate with her friends. The applicant’s daughter testified that since the accident, her mother has yelled at her father out of frustration. She explained that this did not occur prior to the accident and that this is something that she and her brother find unsettling. The applicant also testified that she continues to text and speak with her brother on a weekly or semi-weekly basis, which less frequent than before the accident.

41The applicant has lost interest in socializing with friends. I also note that she became emotional in her testimony when describing her use of a cane. This causes her to feel a high level of embarrassment as she does not want her friends to see her using a cane. Her strong feelings about this is one of the reasons she gave for not wanting to socialize with her friends.

42The applicant also testified to experiencing feelings of sadness and crying because she is no longer a useful person. She can only help with about 10% of household duties, she can no longer earn money for the family, and is dependant on her family to do things for her like prepare food and assist her with taking medications.

43Even so, the applicant testified that she continues to go for walks and grocery shopping with her husband twice per week, and attends weekly physiotherapy sessions. In my view, the evidence shows that the applicant routinely leaves her home and does not suffer from the more extreme type of isolation described by Dr. Gavett-Liu. As such, I find that the applicant is agreeable to leaving her home and has not cut-off all social contact.

44The applicant appeared neatly dressed, was polite and acted appropriately at both psychiatric assessments. She made a similar good impression at her hearing. She testified in a straightforward manner and communicated well under the stressful circumstance of being at a hearing.

45The applicant’s abilities in the area of social function decreased after the accident. In particular, she became more reclusive and temperamental toward her husband. However, there are also examples good functioning such as interacting appropriately and communicating effectively with others. In my view, her post-accident ability to function is consistent with a Class 3, Moderate impairment in social function because her impairments are compatible with some useful functioning.

Concentration, Persistence and Pace (CPP) and Adaptation

46CPP refers to the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings. In activities of daily living, concentration may be reflected in the ability to complete everyday household tasks.

47Adaptation is the functional ability to adapt to stressful situations. When faced with such circumstances, an individual may withdraw or experience an exacerbation of signs and symptoms of a mental disorder.

48The applicant does not submit that she has a Class 5 Extreme impairment in any areas of function. Consequently, there is no basis to find that she has an extreme impairment in either CPP or adaptation.

49Having found that the applicant has two moderate impairments and no extreme impairments, I further find that she is not catastrophically impaired under Criterion 8.

Attendant Care Benefit (ACB)

50At the hearing, the parties agreed that the applicant is eligible for the ACB and that there was no dispute in regard to quantum. The parties confirmed that the applicant is eligible for the maximum allowable ACB from July 25, 2020 to March 15, 2021, which is the non-catastrophic limit of $3,000.00 per month. This is based on the Form 1 dated August 13, 2020 by Ani Davtyan, occupational therapist, which calculates the ACB at $10,340.54 per month. The parties also agree that the applicant is eligible for an ACB of $2,456.76 per month from March 16, 2021 to May 3, 2023 based on the Form 1, dated March 16, 2021 by Ms. Sharma. The parties further agree that the applicant is eligible for maximum allowable ACB from May 4, 2023 and ongoing which is the non-catastrophic limit of $3,000.00 per month. This is based on the Form 1 dated May 4, 2023 by Boris Potoyants, occupational therapist, which calculates the ACB at $3,554.55 per month.

51The parties disagree on whether the applicant is entitled to payment for incurred attendant care. Section 3(7)(e) of the Schedule sets out the following criteria for establishing whether goods or services have been incurred:

(i.) the insured person has received the goods or services to which the expense relates,

(ii.) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and

(iii.) the person who provided the goods or services,

(a) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

(b) sustained an economic loss as a result of providing the goods or services to the insured person;

52In this particular case, the applicant must show that she received attendant care, that she made a promise to pay her spouse, and that her husband suffered an economic loss as a result of providing attendant care.

53The applicant submits that her spouse could no longer work as a pizza delivery driver after the accident because he had to look after her. This caused him to suffer a financial loss in order to provide attendant care to his wife. In her view, she has incurred attendant care.

54The respondent submits that there is no evidence that the applicant suffered an economic loss, that the applicant received attendant care from her spouse, or that there was a promise to pay for attendant care. It argues that the applicant has not incurred attendant care.

55In my view, the testimony of the applicant, her daughter, and her spouse establish that the applicant previously worked as a pizza delivery driver. This is also confirmed in a letter from Pizza Nova, dated March 22, 2021. The letter states that he has not returned to work since his wife’s accident and that there are no employment records as the applicant was paid in cash under the Uber Eats program.

56In the year of the accident, the applicant’s spouse collected the Canada Emergency Response Benefit (CERB) based on not being able to work as a pizza delivery driver because of the pandemic. In testimony, he explained that is factually incorrect. Financial difficulties put him in a situation where he had to work for cash and collect the CERB at the same time.

57The applicant’s spouse told the Canadian government that he could not work as a pizza delivery driver because of the pandemic. He is now changing his statement and says that he was untruthful to the Canadian government and continued to work as a pizza delivery driver until his wife’s accident. These two statements are contradictory. Therefore, I do not accept his explanation because it is unreliable.

58Additionally, it is reasonable to expect that someone who stops working would have some type of financial records that demonstrate a financial loss caused by the inability to work. The applicant provided income tax records, but these do not show that he received income as a pizza delivery driver in 2020. I also note that the applicant has not provided bank statements nor any other records that demonstrate a financial loss. In my view, this is inconsistent with what would reasonably be expected in the circumstance where someone lost employment income from a fulltime job. For all these reasons, I find that the applicant has not established, on a balance of probabilities, that her spouse suffered a financial loss to care for her. Consequently, I also find that she did not incur attendant care services.

59I further note that the amount and type of attendant care provided to the applicant by her spouse is unclear. There are no records of the type of attendant care he provided, the time he spent providing that care, nor the dates he provided it. The respondent provided the applicant with an “Attendant Care Plan” on three different occasions. The applicant could have completed this form and documented the time spent providing attendant care to the applicant. Instead, the applicant submitted expense claim forms with no information on the type of attendant care services he provided to her.

60The applicant’s testimony adds to the uncertainty as her husband cooked meals and cleaned the home for the entire family and not just for the applicant. She also testified that some attendant care duties, such as changing the bedsheets and the occasional managing of medication were completed by her daughter.

61The applicant made no submissions on how to calculate the attendant care services she received from her spouse. Consequently, even if she could show that her spouse suffered a financial loss to look after her, there would be an insufficient basis to calculate what the attendant care services were incurred by the applicant.

Interest

62Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest as no benefits are owing.

Award

63The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

64The applicant made no submissions on an award. As such, there is no basis for me to find that the respondent is liable to pay an award.

ORDER

65The applicant is not catastrophically impaired.

66The applicant is not entitled to payment for attendant care.

67The applicant is not entitled to interest.

68The respondent is not entitled to an award.