Citation: Dyer v Economical Insurance Company, 2024 ONLAT 22-008237/AABS

Licence Appeal Tribunal File Number: 22-008237/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:

Gary Dyer

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Gary Dyer, Applicant

Derek Wilson, Counsel

For the Respondent:

Courtney Sparks, Adjuster

Stephen Whibbs, Counsel

Karson Neilly, Counsel

Court Reporters:

Lee-Anna Bruyns & Caitlin Westerhout

HEARD: by Videoconference on November 20-28, 2023

OVERVIEW

1Gary Dyer (“the Applicant”) was involved in an automobile accident on June 16, 2017 and sought benefits from Economical Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The Applicant sought a determination that he sustained a catastrophic impairment as a result of the accident, but the Respondent disagreed. Further, the Respondent determined that the Applicant was no longer entitled to income replacement benefits (“IRBs”) and stopped payment of the benefit. The Applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY MOTION TO STRIKE Reports

3The Respondent sought an order to strike the Applicant’s claim for a determination that he sustained a catastrophic impairment. In the alternative, the Respondent sought an order barring the evidence of Dr. B. Levitt, psychologist, and Dr. M. Parlar, neuropsychologist.

4The Respondent considers the Applicant’s catastrophic determination report by Dr. Levitt, Dr. Parlar, Dr. R. Kaplan, psychologist, and Dr. M. Nguyen, physician, dated June 3, 2022 (“the Levitt/Parlar report”), to be deficient and submits that the report fails to comply with the Schedule because Dr. Levitt and Dr. Parlar are not physicians. The Respondent submits that section 45(2)1 of the Schedule provides that the assessment to determine whether the Applicant sustained a catastrophic impairment must be conducted by a physician and that Dr. Nguyen never conducted the assessment. The Respondent relies on the case of Lanzon v. Economical Insurance Company, 2023 CanLII 42578 (ON LAT) (“Lanzon”) to support its position.

5In response, the Applicant submits that the Respondent’s motion is untimely and based on unsettled law. He submits that Lanzon is unsettled law as it was recently ordered for a re-hearing. The Applicant also submits that the practical application of the Respondent’s position would be that only psychiatrists can conduct criterion 8 assessments and that if the legislators intended for that outcome, they would have stated that the assessment must be conducted by a psychiatrist.

6I agree with the Applicant and dismiss the Respondent’s motion. Frist, I find the Respondent’s motion to be untimely. Lanzon was released months prior to the start of this hearing and the motion could have been brought at anytime thereafter its release. Instead, the motion was made with only about four business days notice, which is an insufficient amount of time for the Applicant to properly respond. Further, Lanzon was sent for a re-hearing and is it was determined that the Schedule does not require the conducting physician to provide an analysis that is independent of those who have the relevant expertise, and whose assistance is reasonably required.

7In any event, I find that section 45(2)1 of the Schedule permits the assessment or examination by a regulated health professional, so long as it is done to assist the physician as reasonably required.

8Section 45(2)1 states:

An assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician but the physician may be assisted by such other regulated health professionals as he or she may reasonably require.

9I find the Levitt/Parlar report is compliant with section 45(2)1 of the Schedule. The assessment involved in the Levitt/Parlar report was directed by a physician. As stated in the report, and confirmed in the testimony of Dr. Levitt, Dr. M. Nguyen, reviews the file and addresses which criteria apply and directs the other assessors to conduct assessments pursuant to their specialty. Once the assessments are completed, the information is compiled and Dr. Nguyen reviews it and consults with the assessors, if necessary, and ultimately makes the determination on catastrophic impairment and certifies the determination in an OCF-19 if the injured person meets the criteria.

10Further, I find that the Respondent’s interpretation of section 45(2)1 is too narrow to comply with the consumer protection mandate in the Schedule. It is trite law that the Schedule is consumer protection legislation which requires a broad interpretation in favour of consumers. Here, if the intention of the legislature was to limit catastrophic impairment assessment pursuant to criterion 8 to be conducted by a physician, then it would expressly state that only a physician can conduct the assessment or that no other person can assist with the assessment. Instead, the Schedule states that the physician may be assisted by such other regulated health professionals.

11I also find that the Respondent seeks a remedy that is disproportional to the alleged breach. To strike the Applicant’s catastrophic impairment determination report would leave the Applicant with no medical opinion regarding his claim for benefits at the catastrophic level. There is nothing in the Schedule that stipulates that I am unable to consider catastrophic impairment reports that may or may not comply with the Schedule. Instead, any discrepancy with the content of reports would go to the weight of the evidence.

12Lastly, upon hearing the motion I noted that the Respondent can test the evidence through cross-examination. Throughout the duration of the dispute resolution process with the Tribunal, the Applicant has maintained an intention to call Dr. Levitt as a witness to this hearing and eventually did. As a result, the Respondent had the opportunity to cross-examine Dr. Levitt on the content of the report and the process involved in producing the report. Any issues pertaining to the veracity of the report can be addressed by weighing the evidence accordingly.

ISSUES

13The issues in dispute are:

i. Has the Applicant sustained a catastrophic impairment as a result of the accident?

ii. Is the Applicant entitled to IRBs in the amount of $400.00 per week for the period from January 2, 2022 to-date and ongoing?

iii. Is the Applicant entitled to interest on the overdue payment of benefits pursuant to section 51 of the Schedule.

RESULT

14I find that the Applicant sustained a catastrophic impairment as a result of the accident.

15The Applicant is entitled to IRBs as claimed, plus interest pursuant to section 51 of the Schedule.

BACKGROUND

16The Applicant was the driver of a vehicle which was struck in a perpendicular fashion on the passenger’s side while travelling through a controlled intersection in a residential area. Police and ambulance arrived at the scene of the accident, but the Applicant declined transportation to the hospital and, instead, chose to return to his home a few blocks away from the accident. At the time immediately following the accident, the Applicant was mostly concerned about his young daughter, who was not involved in the accident but arrived at the scene shortly after the accident, in emotional distress. The Applicant’s daughter had battled depression due to the death of her mother, the Applicant’s wife, in a previous motor vehicle accident in or around 2009.

17The night of the accident, the Applicant experienced a severe headache, leg pain, and vomiting which persisted for days following the accident. Unable to find relief from his symptoms, the Applicant went to his family physician, Dr. D. Callaghan, a few days following the accident. The Applicant’s symptoms presented at that visit, consisting of headaches, vomiting, and poor balance, caused Dr. Callaghan to send the Applicant directly to the hospital to investigate a possible minor traumatic brain injury (“mTBI”). The Applicant was assessed at the hospital and while imaging showed no acute intracranial injury, he was nevertheless diagnosed with a concussion and recommended to follow up with his family physician.

18The Applicant developed psychological impairments as a result of the mTBI. The Applicant was diagnosed with a somatic symptom disorder and major depressive disorder by the experts before me. From a physical perspective, the Applicant continues to complain about leg pain, severe headaches, and memory and concentration issues.

19The experts before me agree in their reports that the accident is the cause of the Applicant’s current presentation. Dr. E, Gavett-Liu, psychologist, stated in her report dated March 21, 2023, that but for the accident, the Applicant would not have sustained the psychiatric impairments he is currently facing. Similarly, Dr. Levitt concluded in his report dated June 3, 2022, that the Applicant’s psychological and mental disorders are a result of the June 16, 2017 accident.

20The parties are at odds over the extent of the Applicant’s psychological impairments and whether they meet the criteria for a catastrophic impairment. Likewise, they disagree on whether the combination of physical and psychological impairments preclude the Applicant from engaging in any employment for which he is suited by way of training, education, or experience.

ANALYSIS

Catastrophic Impairment

21The onus is on the Applicant to demonstrate that he sustained a catastrophic impairment as a result of the accident. To do so, he must show that two years have elapsed since the accident and that he suffers from an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th edition (“the AMA Guides”), results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning, due to a mental or behavioural disorder.

22The assessment pursuant to criterion 8 excludes consideration of any physical impairments and is based solely on mental and behavioural disorders. Pursuant to criterion 8, mental and behavioural impairments are measured in four areas: 1) Activities of Daily Living (“ADLs”); 2) Social Functioning (“SF”); 3) Concentration Persistence and Pace (“CPP”); and 4) Adaptation in Work or Work-like Settings (“adaptation”).

23According to the AMA Guides, the impairment rankings are as follows.

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

ADLs

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 work and work-like settings

24The AMA Guides note that a marked impairment in two or more spheres would be likely to preclude performing complex tasks without special support or assistance, such as that provided in a sheltered environment. An individual who was impaired in all four categories of functioning would be limited in ability to carry out many, but not all complex tasks. Mild and moderate limitations reduce overall performance but do not preclude performance.

25Dr. Levitt and Dr. Parlar conclude in their report that the Applicant suffers from a marked impairment in all four areas of functioning. In contrast, Dr. Gavett-Liu concludes that the Applicant sustained a mild impairment in ADLs and CPP and a moderate impairment in SF and adaptation.

26For the following reasons, I agree with Dr. Levitt and Dr. Parlar and conclude that the Applicant sustained a catastrophic impairment as a result of the accident.

The Levitt/Parlar report complies with the AMA Guides

27The Levitt/Parlar report is compliant with the AMA Guides, despite using the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Test Revision (“DMS-5-TR”). Chapter 14 of the AMA Guides refers to the Diagnostic and Statistical Manual of Mental Disorders, Revised Third Edition (“DSM-III-R”) however, the application of it is not required. The AMA Guides characterize the DSM-III-R as a widely accepted classification system, but it does not stipulate that it must be applied. The AMA Guides contemplate that some persons suffer from a mental and behavioural disorder without meeting the criteria specified in the DSM-III-R, further suggesting that its application is not a requirement. I find the application of the DSM-5-TR instead of the DSM-III-R does not invalidate the assessment. Further, the Respondent’s assertion on this issue appears to be disingenuous considering that Dr. Gavett-Liu’s assessment and report used the DSM-5-TR.

28The Levitt/Parlar report included a collateral interview to support the assessment, as recommended in chapter 14 of the AMA Guides, whereas the Gavett-Liu report does not. The AMA Guides state that information from medical and nonmedical sources may be used and notes that it can be provided by family members. The Levitt/Parlar report included a collateral interview with the Applicant’s common-law spouse, who provided a first-hand account of the Applicant’s functioning. The collateral interview was referred to in the report and the same person testified at the hearing. I found her to be a credible witness and her accounts of the Applicant’s functioning, as I will outline further, are consistent with the balance of the evidence.

29The AMA Guides recognize that one’s level of functioning may vary considerably over time and provide recommendations to assist with the assessment, which I find the assessment for the Levitt/Parlar report incorporated more than the assessment related to the Gavett-Liu report. The AMA Guides suggest that an individual’s own description of his or her functioning and limitations is an important source of information, that information regarding one’s effort to return to work and the circumstances surrounding the termination are useful, and that gathering data over a period of years, such as treatment records, is helpful. Here, the Levitt/Parlar report is the second assessment by Dr. Levitt and Dr. Parlar with the Applicant. The first such assessment culminating in a report dated April 28, 2022, was made with the benefit of a fulsome document review by the assessor, with consideration for the Applicant’s self-reported functionality and failed attempts to return to work to be discussed in more detail, and a collateral interview. In contrast, Dr. Gavett-Liu met with the Applicant on one occasion for approximately 90 mins and included no collateral interviews.

30I find that the Levitt/Parlar report complied with the AMA Guides while assessing the Applicant’s pain. The AMA Guides highlight that the essential feature of somatoform pain is the preoccupation with pain in the absence of physical findings that adequately account for the pain and its intensity and that assessing impairment related to pain is difficult. It states that the process of assessing pain is not as clearly and precisely defined as with some kinds of impairments and states that determinations about difficult and borderline cases in this category should be made through multidisciplinary, multispecialty approach. To Dr. Levitt, the Applicant’s case is not a borderline case. He diagnosed the Applicant with a pain disorder and highlighted that his care progressed from focusing on the mTBI at the acute phase to the current focus on the pain disorder. Dr. Levitt testified that mTBI symptoms typically resolve within three months and that the Applicant’s continued symptoms beyond that suggest that they are of a psychological nature rather than from a physical perspective. Dr. Levitt also addressed the Applicant’s reports of vomiting and testified that anxiety and depression can cause vomiting when overexerted or overwhelmed.

31Upon review of the AMA Guides and in consideration of the above, I conclude that the Levitt/Parlar report is compliant with the AMA Guides more so than the Gavett-Liu report.

The Levitt/Parlar report is consistent with the Applicant’s medical record

32The Applicant’s self-reports to Dr. Levitt are credible and consistent with the medical record. The Applicant reported that head pain is the most severe pain he experiences and that he is unsure the cause but suggests that it is a result of stress and frustration. Generally speaking, he described experiencing non-restorative sleep, low daily energy, and a remarkable decline in work and socializing that is consistently reported throughout the medical record. He described a low and depressed mood since the accident, including emotional outbursts, crying, and excess worrying.

33A collateral interview with the Applicant’s common-law spouse highlighted the changes in the Applicant’s life since the accident. She noted that the Applicant worked prior to the accident, participated in family outings and recreational activities, and completed a significant amount of work around the house. Following the accident, she noted, the Applicant has extremely poor sleep due to pain, particularly headaches, which are more frequent following over-exertion. She noted that the Applicant’s headaches can be so debilitating at times that he is laid out on the floor, wanting to die because the pain is so bad. The Applicant’s common-law spouse also highlighted that he gets headaches and vomits if he is active for more than a “couple hours” and that he will be inactive for days thereafter.

34The Levitt/Parlar report also includes a comprehensive review of the Applicant’s medical records and, together with the collateral interview with the Applicant’s common-law spouse, found that his self-reporting was accurate. The report summarizes the various sources of information such as hospital and family physician records which included diagnostic imaging, and numerous assessment reports in various specialties including neurology, psychology, and chronic pain. Yet, after conducting the assessment, collateral interview, and completing the review of the medical records, the assessors concluded that the Applicant was forthcoming and cooperative and did not appear to be manipulative or exaggerated in his presentation.

Psychological Testing

35I acknowledge that, during psychological testing conducted for the Levitt/Parlar report, the Applicant produced an invalid profile in the Personal Assessment Inventory but find that it does not upset the overall persuasiveness of the report. In the report, the invalid profile was attributed to the Applicant’s inability to complete the standardized test. It notes that the Applicant indicated a desire to get the test over with and a lack of attention to inputting accurate information. Likewise, in testimony, Dr. Levitt also attributed the profile to the Applicant’s presentation and inability to persist through the testing rather than an attempt to skew the test results. Otherwise, the psychological testing results in the Levitt/Parlar report indicated scores on the pain inventories consistent with Somatic Symptom Disorder with predominant pain and Psychological Factors affecting pain.

36Further, the Levitt/Parlar report considered whether the Applicant was exaggerating or malingering and concluded that he was not. The Levitt/Parlar report concluded that the Applicant was cooperative, with a good level of insight, but that he was not a detailed historian and can get confused with dates and timelines. These findings are also reflected in the Gavett/Liu report. In her report, Dr. Gavett-Liu administered psychometric scales during the assessment and, in the report stated unequivocally that the Applicant produced no gross signs of malingering.

37The Levitt/Parlar report noted that, in the April 2018 neuropsychology report by Dr. J. Frtusova, the Applicant scored mildly below cut-off levels for effort and symptom validity. Similar to the assessment in the Levitt/Parlar report, the score in the report by Dr. Frtusova was attributed to the Applicant’s reduced ability to sustain a constant level of cognitive effort, rather than an attempt to exaggerate or feign cognitive difficulties. It was also noted that a functional abilities evaluation by Dr. J. Ikonomakis, chiropractor, in December 2021, found marginally reliable effort in addition to pain focused behaviours. The Levitt/Parlar report concluded that such behaviour was consistent with a pain or somatic symptom disorder and the cognitive difficulties experienced by the Applicant are associated with his persistent depression, pain and fatigue. Lastly, the Levitt/Parlar report noted that despite the above-referenced issues, the Applicant produced valid scores in assessments with Dr. M. Monette, psychologist, and Dr. Kaplan in February 2019, with Dr. E. Hapidou, psychologist, and Dr. S. Sharma in January 2021, and Dr. S. Parekh, psychiatrist, in October 2018.

38Considering the various opinions described above, I conclude that the psychological testing results in the Levitt/Parlar report and the Gavett-Liu report are valid and do not indicate that the Applicant is malingering or attempting to mislead the assessors.

THE FOUR AREAS OF FUNCTION

39For the following reasons, I find that the Levitt/Kaplan report accurately reflects the Applicant’s functioning in the four spheres and prefer it over the Gavett-Liu report.

Activities of Daily Living

40The AMA Guides assess not simply the number of activities that are restricted, but the overall degree of restriction or a combination of restrictions.

41I agree with the Levitt/Parlar report conclusion that the Applicant suffers a marked impairment with respect to activities of daily living. The report notes that the Applicant is generally inactive with respect to his daily functioning as a result of his psychological disorders and highlights his erratic sleep, which greatly impacts his daily functioning, and leads to unplanned naps of 10-15 minutes when the Applicant is sitting down. While the Applicant attempts to engage in house chores, which he generally avoids due to pain, fatigue, and depression, it typically results in over-exertion which can cause headaches for the Applicant, vomiting, and being laid out on the couch for up to several days. He rarely leaves his home and engages very little in terms of daily activity, spending much of his time alone or resting.

42The findings in the Levitt/Parlar report are consistent with the testimony at the hearing. The Applicant testified to his decrease in activity following the accident. He noted that his interrupted sleep is often an issue, leaving him with little energy to complete tasks during the day. He noted that he was generally independent with his self-care such as showering and shaving but does not do so regularly and generally waits for family members to remind him to do so. He limits his walking due to fear of begin laid out after. He is able to drive but his driving tolerance is limited to about 40 minutes. Both the Applicant and his common-law partner testified to a decrease in intimacy and noted that they often sleep in separate beds following the accident.

43The Applicant’s participation in social and recreational activities has also diminished significantly following the accident. The Applicant testified that he has a hard time socializing and does not reach out to others anymore because his pain interferes with his ability to commit to doing things with others and he does not want to let people down. He no longer volunteers at his kids’ school and limits his public activities with them for fear of embarrassing them due to issues such as poor balance and incontinence issues, which are to-date, not linked to a physical impairment. Another example was provided when the Applicant’s common-law partner testified that she gave the Applicant a card with money in it on the morning of his birthday with hopes of going to the casino together in the evening after she was off work. However, by the time she returned home from work, the Applicant did not have the energy to go out.

44The Levitt/Parlar findings are not upset by periodic examples of the Applicant engaging in physical activity. As noted by the Applicant, his common-law spouse, and Dr. Levitt in testimony, the issue is not that the Applicant is unable to perform physical activities entirely. Rather, on the rare occasions when he does engage in physical activity, he has a detrimental impact upon him for a time thereafter that is disproportional to the energy exerted.

45The Applicant was subject to 23 days of surveillance, yet the evidence captured demonstrates a low level of activity. On one occasion, the Applicant was observed to moving a mattress (with help from others) to his brother, who was terminally ill, on another occasion the Applicant was observed maneuvering a cargo trailer on a driveway, and on another occasion, he was observed moving/loading a dock at a vacation property with assistance from others. These observations are consistent with the Applicant’s reports that he can do occasional physical activity but is laid out thereafter. None of the surveillance footage shows the aftermath of the Applicant’s physical activity.

46I find that the actions depicted in the surveillance evidence fail to upset Dr. Levitt’s findings. I agree with Dr. Levitt’s testimony that it is important to consider the aftermath of those actions. He testified that he was aware that the Applicant occasionally attempts to engage in physical activities and reports that he is “laid out” for hours later, which was confirmed by the testimony from the Applicant’s common-law spouse and the Applicant himself. At no time did the surveillance evidence demonstrate the Applicant engaging in employment, hosting guests, or participating in any social engagements in any prolonged or meaningful way.

47The Gavett-Liu report is less persuasive because it overstates the Applicant’s independence with ADLs. Dr. Gavett-Liu concluded that the Applicant suffers from a mild impairment in this sphere, but the evidence in the report and in the testimony before me fails to indicate that his impairment is compatible with most useful functioning. The evidence demonstrates that the Applicant does not administer self-care such as showering or shaving on a regular basis and that he often needs family members to comment on his appearance before he tends to himself. Dr. Gavett-Liu also noted that the Applicant does not take his medications regularly. As I will elaborate on further, the Applicant can only prepare simple meals and lacks the ability to multitask in the home.

48Accordingly, I prefer the opinion in the Levitt/Parlar report and conclude that the Applicant sustained a marked impairment in the sphere of ADLs.

Social Functioning

49The AMA Guides notes that a person’s strength in social functioning may be documented by an individual’s ability or inability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities.

50I agree with the Levitt/Parlar report that the Applicant suffers a marked impairment with respect to social functioning. In the report, the Applicant is described as insulative since the accident and experiences a pervasive depressive loss of interest in socializing. This is highlighted in the situational assessment conducted by occupational therapist D. Wilson, for the Gavett-Liu report. In that assessment, the Applicant was asked to contact local businesses by telephone to get information and demonstrate his ability or inability to function in social situations. However, the Applicant would not call the businesses because he did not have the tolerance for it.

51The Applicant’s inability to communicate adequately was displayed during testimony. Towards the end of his multi-hour testimony, the Applicant’s use of profanities increased and his ability to filter himself appeared to decrease as well. Further, as the time went on, it appears as though the Applicant’s participation decreased and his answers in cross-examination became shorter and shorter as if he cared more about getting the process over with than answering accurately. This is consistent with Dr. Levitt’s conclusion regarding the Applicant’s participation in psychometric testing – that he became careless and focused on getting the task over with rather than being accurate.

52I find that the Gavett-Liu report places too much weight on the Applicant’s ability to be polite and courteous during the assessment in a controlled environment. Dr. Gavett-Liu highlighted that the Applicant’s social communication skills were appropriate within the structured setting but failed to fully consider his drastic decrease in socialization and inability to communicate outside of a structured setting. Yet, Dr. Gavett-Liu reported that the Applicant significantly curtailed his social life following the accident and that he no longer participates in the mixed martial arts club he founded, he experiences emotional dysregulation towards family members, and that his accident-related mental and behavioural impairments are meaningfully affecting his capacity to initiate and maintain a variety of social relationships. These findings by Dr. Gavett-Liu, combined with the Applicant’s testimony, lead me to conclude that the Applicant experiences impairment levels which significantly impede useful functioning in SF.

53Surveillance evidence does not upset my conclusion that the Applicant suffers from a marked impairment in SF. The Applicant has a vacation trailer located in a park about a 40-minute commute from his home. The Respondent hired investigators to surveil the Applicant over a period of 23 days, capturing the Applicant at the trailer on more than one occasion. The video footage includes few examples of the Applicant socializing within the trailer community. While there may have been occasions where neighbours briefly stopped by the Applicant’s property, there is no footage of the Applicant visiting neighbours within the community or participating in social engagements in any meaningful way. For example, the Applicant and his wife used to organize an annual kids’ day at the trailer park with various activities for children and families at the park to come together; however, they no longer do so following the accident and participate in the event in a much less meaningful way – the surveillance footage captured him at the kids’ day event, where he participated in some way for about three and a half hours, including running a “plinko” game for the kids, and picking up waste after the event. However, what is remarkable is that the surveillance continued for about an hour and a half following the event and never observed the Applicant engaging in any further activity and no surveillance was conducted later that evening or the following day to observe the aftermath of the Applicant’s participation in the event. In another example, the Applicant was observed mowing a small patch of grass at the trailer park and removing children’s bicycles from his van on the same day, but surveillance the following day captured no physical activity, in keeping with the Applicant’s accounts that he is laid out after engaging in physical activity.

54Additionally, with regard to SF, I find that the Applicant’s ability to remain a caring father does not upset the finding that he sustained a marked impairment. The Respondent suggests that the Applicant does not meet the catastrophic impairment threshold because he was characterized by others as a caring and loving father to his daughters. I disagree with the notion that a loving or caring father is precluded from sustaining a catastrophic impairment. The test for catastrophic impairment addresses many aspects of a person’s life and a characteristic of being loving or caring does not trump all other considerations.

Concentration, Persistence, and Pace

55The AMA Guides consider a person’s ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings when assessing CPP. The AMA Guides note that this is often assessed in psychological tests that require short-term memory or tasks that must be completed within established time limits.

56I agree with the Levitt/Parlar report that the Applicant sustained a marked impairment in the sphere of concentration, persistence, and pace. The report highlights that the Applicant is fearful of exacerbating pain and balance issues and is therefore avoidant of leaving his home and engaging in certain tasks. It also notes that the Applicant’s common-law spouse manages the family finances following the accident due to the Applicant’s cognitive issues. The Applicant’s cognitive difficulties impact his ability to reliably attend appointments and multi-task. The report also notes that the Applicant is unable to complete tasks reliably, precluding him from meaningfully engaging in work or hobbies since the accident due to pain, headaches, worry, and stress.

57The Applicant’s performance during the situational observation of occupational therapist D. Wilson in the March 21, 2023 IE report, demonstrates his marked impairment in CPP. The Applicant was give a multiple errand task which involved the completion of a passport application, prepare a light meal involving tea, an egg, and toast, wash any dishes from the meal preparation and sweep one level of the home, phone a bakery and find out the cost of a dozen scones, phone the local superstore and find out the hours for Sunday, find a local physiotherapy location and use the phone to ask them if they provide evening hours, and retrieve the mail from his home. The Applicant spent over 46 minutes engaging in the exercise and with prompting managed to boil an egg, prepare tea and a slice of toast (though, the meal items were not served at the same time as requested), sweep his kitchen for two minutes, and retrieve his mail. The occupational therapist characterized the Applicant as chatty and testified that it was as if he was avoiding going to the next task, which to me, is behaviour that is consistent with anxiety or a pain disorder.

58The Applicant’s discomposure/degradation during testimony is also indicative of his impairment in CPP. The Applicant testified for several hours during the first day of the hearing and, towards the end of the event, demonstrated signs of fatigue and decomposition. For example, he became more defiant and used inappropriate language more frequently as the process went on, and at one time crassly commented that he was experiencing incontinence during the process but chose not to do anything about it in order to avoid prolonging the process. I agree with the Respondent that the Applicant never asked for breaks during the process; however, I find that this behaviour is consistent with his get-it-over-with attitude. Such behaviour demonstrates that the Applicant is unable to persist in stressful situations.

59Another example of the Applicant’s inability to persist is the remarkable change in his ability to build deck chairs – he typically completed one chair in a few days, but now can only complete a few chairs per year. Further, the Applicant’s impairments in this sphere impacted his ability to complete the standardized tests to his fullest ability, as discussed previously, whereby he would rush through the exercises and carelessly complete the tests in order to get through the assessment.

60I find that the Gavett-Liu report understates the Applicant’s impairment in this sphere. Dr. Gavett-Liu noted that the Applicant’s poor emotional regulation could result in workplace conflict, amotivation, and/or avoidance or withdrawal and that his cognitive difficulties could lead to poor decision-making, increased errors, and decreased task efficiency. The Applicant’s stress tolerance, memory, and concentration are also noted to be impaired in the report and he was unable to complete the situational exercise in occupational therapy component of the assessment. Yet, Dr. Gavett-Liu found that his impairments were mild, and therefore compatible with most useful functioning – something that I simply cannot agree with in light of this evidence. As a result, I prefer the Levitt-Parlar report when assessing the Applicant’s impairment in the sphere of CPP.

Adaptation

61Having determined that the Applicant suffers from a marked impairment in three of the four spheres of functioning, it follows that the Applicant sustained a catastrophic impairment as a result of the accident and an analysis of whether he suffers a marked impairment in the domain of adaptation is unnecessary.

62However, due to the application of my findings in this sphere has on the Applicant’s entitlement to IRBs, I will address this sphere and I find that the Applicant suffers a marked impairment in adaptation.

63The AMA Guides note that adaptation refers to repeated failure to adapt to stressful circumstances and that stress may be viewed objectively and subjectively depending on the circumstances.

64I agree with the Levitt/Parlar report that the Applicant suffers from a marked impairment in the sphere of adaptation. The Levitt/Parlar concluded that the Applicant could not be relied upon to engage in any consistent activity reliably and independently and attempting to do so would result in further significant deterioration from a psychological perspective. The report considers the Applicant in the context of his multiple, interacting and serious mental and behavioural disorders. It notes that the Applicant’s pain has become entrenched and highly distressing, contributing to avoidance behaviours resulting in significant functional impairment. The report notes his highly pain avoidant behaviour that causes him to spend days or weeks laid out and doing nothing.

65There are several examples in the Applicant’s life where he has demonstrated a marked impairment in the sphere of adaptation. As previously mentioned, the Applicant has been unable to build deck chairs anywhere close to the rate he did prior to the accident. Another clearer example is when the Applicant initially attempted to return to work in waterproofing basements: he was hired for a job and his carelessness during the job while using a small excavator resulted in him rupturing a gas line to the house, requiring the neighbourhood to be evacuated. The Applicant was unable to complete the work and was forced to outsource it to someone else. The Applicant also attempted to work at his brother-in-law’s scrap yard, which he did periodically prior to the accident. However, he testified that his brother-in-law will no longer employ him because he is a liability.

66The Applicant’s ability to respond to a single stressful event does not upset the persuasiveness of the Levitt/Parlar report. The Respondent suggests that the Applicant is functional because he was able to respond to a random event when a neighbour appeared at his front door, bleeding profusely due to a knife attack. The Respondent submits that the Applicant was functional enough to assess the situation and apply pressure to the wound until medical attention arrived – effectively saving the neighbour’s life. While I agree that this demonstrates a level of physical functioning, I am not convinced that it demonstrates that the Applicant is not catastrophically impaired. Sustaining a marked impairment in 3 of the 4 domains does not preclude a person from any useful functioning. As noted in the AMA Guides, a marked impairment results in a significant impediment of useful functioning not a total impediment of useful functioning. Further, this event was addressed by Dr. Levitt during testimony. He suggested that it is possible that the event showed that the Applicant lacks judgement because the victim was reported to be a known drug user, and the Applicant took no precautions to protect himself from possible infection. I do not see this as downplaying the event or advocating for the Applicant. Rather, I find it to be an interpretation of the events as described to Dr. Levitt, which is compatible with the findings in the report.

67I find that Dr. Gavett-Liu understated the extent of the Applicant’s impairment in this sphere. Dr. Gavett-Liu concluded that the Applicant sustained a moderate impairment in the sphere of adaptation on what appears to be based on the Applicant’s calm and organized mental state and ability to follow simple instructions and maintain attention during the assessment. Yet, the Applicant’s demeanor during the structured assessment is not the sole source of information and should not be given the weight that Dr. Gavett-Liu appended to it. Dr. Gavett-Liu included reference to the situational assessment by occupational therapist Wilson, and noted his struggle with the task and the fact that he did not complete it, but never commented on how or why her findings are congruent with the occupational therapist’s findings. This issue, together with the various reports of the Applicant’s inability to engage in any meaningful employment post accident leads me to conclude that Dr. Gavett-Liu understated the level of the Applicant’s impairment and I prefer the Levitt/Kaplan report instead.

Income Replacement Benefits

68To qualify for IRBs as claimed, the Applicant must demonstrate that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience, pursuant to section 6(2)(b) of the Schedule.

69The Applicant is a high school graduate who has not completed any post secondary training in any field. His work experience is dominated by jobs involving physical labour. He has worked as a foreman at construction sites, at a scrap yard, and has experience repairing electronics such as pinball machines and cars. At the time of the accident, the Applicant was self-employed in the construction industry, with a specialization in basement work such as waterproofing and underpinning. Additionally, the Applicant has some experience in taekwondo and previously held a leadership role in a local mixed martial arts club. Accordingly, I find that he is reasonably suited for employment involving heavy labour.

70The Applicant does not have the requisite stress tolerance to engage in any employment or self-employment for which he is reasonably suited. As discussed previously, the Applicant is unable to complete tasks reliably, precluding him from meaningfully engaging in work or hobbies since the accident due to pain, headaches, worry, and stress. Even Dr. Gavett-Liu, who generally downplayed the level of the Applicant’s impairments, found that the Applicant has impaired stress tolerance that seems to cause withdrawal or a worsening of symptoms. When the Applicant is able to complete tasks, particularly the physical tasks which he is suited for, he is laid out afterwards and unable to do virtually anything.

71The Applicant’s emotional dysregulation precludes him from engaging in any employment. As noted in the Gavett-Liu report, the Applicant’s poor emotional regulation could result in workplace conflict, amotivation, or withdrawal. In the Levitt/Kaplan report, it notes that the Applicant is prone to be rude or inappropriate comments towards other people, further impacting his ability to engage in employment or self-employment. The Applicant’s emotional dysregulation was also displayed during testimony, as discussed previously – his use of inappropriate language increased as time went on and his ability to filter himself was diminished.

72The Applicant’s mental and behavioural impairments preclude him from engaging in participating in any employment or self employment. Dr. Parekh, psychiatrist, assessed the Applicant on behalf of the Respondent and issued a report dated August 8, 2019. In that report, Dr. Parekh suspected that most jobs would result in possible pain escalation and certainly stress escalation that would result in the Applicant experiencing emotional dysregulation/decomposition and would require cognitive processes that preclude him from completing his job tasks appropriately and that he lacks the mental function to show up, participate, and produce in most work roles.

73The Respondent commissioned a vocational evaluation report by D. Zervas, certified vocational evaluation specialist, dated October 31, 2019. The report focuses primarily on the Applicant’s physical demands capacity and does not appear to consider his mental and behavioural impairments. I find that this report holds no weight when assessing the Applicant’s vocational capacity, considering the Applicant’s mental and behavioural impairments. Likewise, the functional abilities evaluation by Dr. J. Ikonomakis, chiropractor, dated December 14, 2021 also focuses on the Applicant’s physical capability and gives no consideration to his mental and behavioural impairments.

74Dr. J. Sethi, psychiatrist, prepared a report dated December 14, 2021 for the purposes of determining post-104 IRB entitlement. Psychometric scales were administered, and the Applicant scored in the severe range for depression and anxiety. Remarkably, Dr. Sethi acknowledged that the Applicant was diagnosed by Dr. Parekh with a Somatic Symptom Disorder with Predominant Pain in October 2018, but never clearly addresses why such a diagnosis is not currently present in the report. I find Dr. Sethi’s failure to address whether the Applicant suffers from a pain disorder undermines the overall persuasiveness of the report.

75It is clear from the evidence that the Applicant is significantly impaired from a mental and behavioural aspect and that the impairment is of such significance that he is unable to engage in employment or self-employment that he is reasonably suited for by education, training or experience. Accordingly, I find that the applicant is entitled to IRBs as claimed.

Interest

76Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is entitled to IRBs as claimed, it follows that he is also entitled to interest associated with the overdue payment of IRBs.

ORDER

77The Applicant sustained a catastrophic impairment as a result of the accident.

78The Applicant is entitled to IRBs for the period from January 2, 2022 to-date and ongoing, plus interest pursuant to section 51 of the Schedule.