[M.Z] v. Security National Insurance Company, 2024 CanLII 35847

Citation: [M.Z] v. Security National Insurance Company, 2024 ONLAT 22-005726/AABS

Licence Appeal Tribunal File Number: 22-005726/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:

[M.Z]

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR: Taivi Lobu

APPEARANCES:

For the Applicant: David Shellnutt, Counsel

For the Respondent: Anju Sharma, Counsel

Court Reporter: Alyssa Scott

Heard by Videoconference: October 16–20, 23–24, 2023

OVERVIEW

1[M.Z], the applicant, was involved in an automobile accident on June 16, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Security National Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Has the applicant sustained a catastrophic impairment as defined by the Schedule? (Criterion 8)
2. Is the applicant entitled to $2,200.00 for speech language assessment, proposed by Deena Rogozinsky Therapy in a treatment plan/OCF-18 (“plan”) dated February 23, 2020?
3. Is the applicant entitled to $2,200.00 for an occupational therapy assessment, proposed by Deena Rogozinsky Therapy in a plan dated February 7, 2020?
4. Is the applicant entitled to $4,988.00 for occupational therapy services, proposed by Miranda Mo & Associates in a plan dated February 9, 2022?
5. Is the applicant entitled to $4,548.20 for physiotherapy services and related goods, proposed by Nadir Mawji, MUV Therapy Physio and Sports Medicine in a plan dated March 25, 2021?
6. Is the applicant entitled to $5,589.76 for physical modalities of treatment (massage, physiotherapy and chiropractic), proposed by Nadeem Ahmed, The Clinic in a plan dated November 8, 2022?

RESULT

3The applicant:

i. has not sustained a catastrophic impairment as defined by the Schedule (Criterion 8); ii. is not entitled to $2,200.00 for speech language assessment proposed in a plan dated February 23, 2020; iii. is not entitled to $2,200.00 for an occupational therapy assessment, proposed in a plan dated February 7, 2020; iv. is not entitled to $4,988.00 for occupational therapy services proposed in a plan dated February 9, 2022; v. is not entitled to $4,548.20 for physiotherapy services proposed in a plan dated March 25, 2021; and vi. is not entitled to $5,589.76 for a medical rehabilitation plan (massage, physiotherapy and chiropractic), proposed in a plan dated November 8, 2022.

PROCEDURAL ISSUES

Motions for Production

4The respondent filed a motion for production of documents at the end of the last business day before the scheduled hearing.

5The motion included production requests which had been addressed by the Tribunal in a similar motion brought by the respondent on August 21, 2023 – namely an order to produce letters of direction from the applicant to the catastrophic impairment assessors and any notes and records from the assessors; the file from the applicant’s employer between June 2018 and June 2020; and clinical notes and records of Deena Rogozinsky Therapy with respect to any OCF-18s. By Order dated August 21, 2023, Vice Chair Lake refused to order the above noted productions as they had already been ordered at a Case Conference on February 22, 2023 and a further order was redundant. I find that this matter has already been addressed.

6The respondent’s motion also sought production of documents not included in the previous Orders – namely pre-accident records from two of the applicant’s treating physicians, and a file from an employer with whom the applicant was employed after the date of the case conference. I find no compelling reason why a motion for such documents could not have been brought in a more timely manner. I will not make a production order at the outset of the hearing.

7To the extent that any of the documents ordered at the Case Conference or subsequently requested have relevance to the issues in this hearing and have not been produced, I will consider submissions of the parties as to what inferences if any are to be drawn from the fact that such documents were not provided, weight to give the associated evidence, any prejudice faced by the respondent, and whether the applicant has met his onus.

Emergency Summons

8Upon the close of the applicant’s case at the end of the fifth hearing day, the respondent advised that it would no longer be calling one of its four witnesses, Dr. Konstantine Zakzanis, as less than two of the seven hearing days remained for the respondent to present its witness evidence. The applicant then requested that I approve an emergency summons for Dr. Zakzanis.

9I declined to approve a summons during the hearing. Rule 8 of the Licence Appeal Tribunal Rules, 2023 (“Rules”), requires that an approved summons be served on the person summoned no later than 10 days before the hearing unless otherwise ordered by the Tribunal. The applicant submitted that Dr. Zakzanis had been on the respondent’s witness list, that he had been relying upon the opportunity to cross examine Dr. Zakzanis with regard to his report, and that the respondent should have given prior notice if the respondent was no longer to be calling him. The respondent submitted that it had been intending to call Dr. Zakzanis but by the time that the applicant had concluded with the last of his nine witnesses, less than two of seven hearing days remained for witness testimony and the respondent had to adjust its witness list.

10From the outset of the hearing, the parties had been encouraged to agree to a mutual timetable for witness evidence to ensure adequate time for the anticipated witnesses. The applicant had required flexibility with the witness timetable as it could not confirm the availability of one of its key witnesses until partway through the hearing and the fifth hearing day was needed for this witness, limiting the time available for the respondent’s witnesses.

11If a party is relying on the opportunity to question a witness, that party has responsibility to ensure that the hearing schedule allows for this, particularly where, as in this case, the witness schedule was being adjusted during the hearing to accommodate availability of one of applicant’s witnesses. Moreover, if it is essential for a party to question a witness, the onus is on that party to summons the witness in a timely manner, even if that witness is on the other party’s witness list. I found that the circumstances did not justify an emergency summons as requested by the applicant.

ANALYSIS

The applicant does not meet the definition of a catastrophic impairment

12The applicant bears the onus of proving on the balance of probabilities that, as a result of the accident, he is catastrophically impaired under the Schedule. I find that he has not done so.

13The applicant is seeking catastrophic impairment status under section 3.1(1)8 of the Schedule (“Criterion 8”) which requires that an applicant meets impairment levels designated as catastrophic by Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “AMA Guides”) as a result of accident-related mental or behavioural disorders.

Pre and post accident overview of applicant’s professional life

14A predominant feature of the hearing pertained to the effects of the accident on the applicant’s professional life. To provide context for what is to follow, a brief overview of the applicant’s professional life is provided here.

15The applicant was a 30-year-old law student when struck by a vehicle while on a bicycle. Prior to the accident, the applicant was a high achiever with multiple university scholarships, distinctions and awards, and two Master of Laws degrees. He had worked for the Office of the European Union in Jerusalem, served as an advisor on international humanitarian law, and after moving to Canada, started his JD degree at Osgoode Hall Law School in 2016.

16When the accident occurred in June 2018, the applicant had completed his second year of law school and was employed as a summer student at a leading labour law firm. He went on medical leave for a good part of his summer employment because of his injuries, was hired back by this employer as an articling student and then completed his articles with the firm. With accommodations, he completed his third year of law school in 2019 and also passed the Law Society of Ontario’s bar admissions examinations. He was licensed as a lawyer in June 2020.

17Upon being called to the bar, the applicant was not hired back as a lawyer by the firm where he had completed his articles. After being unemployed for a period of some months, he secured a three-month non-lawyer contract position in a labour relations setting in the fall of 2020. There was indication that this position could be made permanent, but the applicant accepted an offer to work as an associate lawyer with a law firm. He was employed with that firm from January 2021 to July 2023, which included a period of medical leave followed by vacation and parental leave from July 2022 to March 2023. The applicant’s time at the firm ended in July 2023. The following month he started in a full-time temporary position as in-house counsel with a major national organization where he continued to work as of the date of the hearing.

Catastrophic Impairment in the Accident Benefits Context

18The applicant’s life has changed significantly as a result of the accident. In addition to other changes, he has been unable to carry out his pre-accident career plans as a result of accident-related impairments.

19In the accident benefits context of the Schedule, it is beyond the scope of a catastrophic impairment designation to provide general redress for harm suffered; rather, the purpose of such a designation is to enable access to increased levels of medical and rehabilitation benefits for accident-related needs. As affirmed by the Court of Appeal in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, “The legislature's definition of "catastrophic impairment" is intended to foster fairness for victims of motor vehicle collisions by ensuring that accident victims with the most health needs have access to expanded medical and rehabilitation benefits” (from MacKinnon J. in Arts (Litigation Guardian of) v. State Farm Insurance Co., 2008 CanLII 25055 (ON SC), para14).

Accident-related mental and behavioural disorders

20The applicant has been assessed and treated by a number of health professionals for accident-related mental or behavioural disorders including the following:

i. Dr. Hannah Rockman - a psychologist who conducted a catastrophic impairment assessment on behalf of the applicant together with Ms. Hallie Farrow, a psychological associate at the time of the applicant’s assessment. This assessment (initiated October 8, 2020 and completed on March 11, 2021) was part of a multidisciplinary assessment which included an October 1, 2020 assessment by occupational therapist, Ms. Rogozinsky and an April 12, 2021 assessment by orthopaedic surgeon, Dr. Tajedin Getahun. All three assessments formed part of an application for determination of catastrophic impairment submitted by Dr. Irina Kay.

ii. Dr. Velan Sivasubramanian - a psychiatrist who conducted a psychiatric catastrophic impairment assessment on September 30, 2021 at the request of the respondent, and which relied upon an occupational therapy assessment of Ms. Vinita Tandon.

iii. Dr. Clare Brandys - a treating neuropsychologist who saw the applicant for five months in 2018 - 2019 and assessed the applicant for law school and bar admissions accommodation requirements. She again saw the applicant for three months in 2023 when he was returning to work at a law firm after a period of medical and parental leave.

iv. Dr. J. Darcy O’Brien - a treating neuropsychiatrist since May 2019.

v. Dr. Chantal Vaidyanath - a treating neurophysiatrist from October 2018 to June 2019) and a medico-legal assessor for the applicant in 2022

vi. Dr. Christine Curran - a treating neuropsychologist/psychologist

vii. Dr. Zakzanis, a neuropsychologist who assessed the applicant at the request of the respondent (brain injury assessment) in relation to the catastrophic impairment application.

21The applicant submitted that pain-related impairment should be considered when addressing impairment levels. The respondent did not take a position on this. I agree with the applicant. Dr. Rockman arrived at a DSM-5 diagnosis of Somatic Symptom Disorder with Predominant Pain. While Dr. Sivasubramanian did not include this as a DSM-5 diagnosis, in the course of assessing impairment levels he recognized some amplification of the applicant’s pain limits because of somatic symptoms. As affirmed by the Court of Appeal’s decision in Pastore v Aviva, 2012 ONCA 642 (paragraph 68), where an individual’s diagnosed mental disorder includes pain associated with a general medical condition, then it is reasonable to include such pain when determining an impairment level under Criterion 8. Accordingly, pain-related restrictions are included in an assessment of the applicant’s Criterion 8 impairment levels.

22A number of health professionals observed that the accident exacerbated the applicant’s pre-existing post-traumatic stress from childhood trauma. For example, the medical chart of his treating neuropsychiatrist, Dr. O’Brien noted that with the additional trauma of the accident, the applicant had a clear diagnosis of post-traumatic stress disorder. I recognize that Dr. Sivasubramanian in his assessment report was of the view that the applicant’s re-experiencing of phenomena at the time of his assessment was not intense or pervasive enough to warrant a diagnosis of post-traumatic stress disorder. However, regardless of the diagnosis, the overall evidence shows that the applicant had post-traumatic stress symptomatology from his earlier life, which was exacerbated by the accident. I also recognize that the applicant had been diagnosed with pre-accident ADHD but that evidence from multiple sources confirmed a worsening of attentional issues post-accident. In accordance with the “but for” test of causation confirmed in Sabadash v. State Farm et al. 2019 ONSC 1121, I find that functional impairment arising as a result of exacerbation of the pre-existing conditions such as post traumatic stress and attentional issues, are to be included in assessing the applicant’s accident-related impairment levels.

23Dr. Brandys, Dr. Vaidynanath and Dr. Zakzanis determined that the applicant had sustained a mild traumatic brain injury and mild cognitive impairment from the accident. After a detailed neuropsychological assessment, Dr. Zakzanis determined that there was no evidence of emotional or behavioural impairments as a result of a brain injury and consequently, all emotional or behavioural impairments were to be rated under a psychiatric assessment. I find therefore that all accident-related mental or behavioural impairments are to be included within the Criterion 8 assessment.

Assessment of Impairment Levels

24Criterion 8 impairment levels are to be assessed in relation to four functional domains: (1) activities of daily living; (2) social functioning; (3) concentration, persistence and pace and (4) adaptation (deterioration or decomposition in work or work-like settings). To meet the Schedule’s threshold for a catastrophic impairment designation, an individual must have three marked (class 4) impairments out of the four spheres of functioning or one extreme (class 5) impairment as a result of the accident due to a mental and behavioural disorder. These impairments are assessed under the AMA Guides. Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The spheres of functioning and the levels of impairment are outlined in the chart below:

Area or Aspect of Functioning	Class 1: No Impairment	Class 2: Mild Impairment	Class 3: Moderate Impairment	Class 4: Marked Impairment	Class 5: Extreme Impairment
Activities of Daily Living	No impairment is noted	Impairment levels are compatible with most useful functioning	Impairment levels are compatible with some, but not all useful functioning	Impairment levels significantly impede useful functioning	Impairment levels preclude useful functioning
Social Functioning
Concentration, Persistence and Pace
Adaptation (Deterioration in a work-like setting)

Criterion 8 – Impairment Levels – Positions of the Parties

25With regard to the nature of the applicant’s mental and behavioural disorder, Dr. Rockman and Dr. Sivasubramanian both diagnosed the applicant under DSM-5 with Adjustment Disorder with Anxiety and Depressed Mood. In addition, Dr. Sivasubramanian diagnosed Specific Phobia (anxiety in relation to the use of a bicycle) and Dr. Rockman diagnosed Somatic Symptom Disorder with Predominant Pain. As previously noted, both Dr. Rockman and Dr. Sivasubramanian recognized that the applicant had accident-related post-traumatic stress symptomatology.

26With regard to the applicant’s catastrophic impairment status, in addition to evidence from the health professionals identified earlier in this decision and documentary evidence from other sources, I heard witness testimony from the applicant, his spouse, his sister-in-law, a partner from the firm where the applicant had been employed from 2020 to 2023, and his family physician, Dr. Puja Malik.

27The applicant relies on the opinion of Dr. Rockman for his position that he meets the requirements of a catastrophic impairment designation under Criterion 8.

28The respondent relies on the determination of impairment levels of Dr. Sivasubramanian who found that the applicant did not meet Criterion 8 requirements.

CAT assessor reports and Impairment levels

29I find Dr. Rockman’s report of limited assistance. The AMA Guides state that a Chapter 14 impairment evaluation report should describe in detail the severity of the limitations in relation to the four functional domains. Dr. Rockman’s report does not do this. Her report includes assessment history, information about the applicant’s background, summaries of other documentation, physical and psychological complaints, a daily living description, psychometric test results, and ratings under Criterion 7.¹ In arriving at Criterion 8 impairment levels, the entirety of Dr. Rockman’s finding and reasoning is presented as follows in her report:

In consideration of available information, including the findings of Mr. [Z]’s occupational therapist, Ms. Deena Rogozinsky² we believe that Mr. [Z] exhibits Marked Impairment (Class 4) in Social Functioning, Concentration persistence and pace, and Adaptation to work or work-like settings, and Moderate Impairment (Class 3) in Social Functioning as a result of psychological symptomatology. As such, Mr. [Z] would meet catastrophic threshold for mental and behavioural impairments under Criterion 8 with at least three Marked (Class 4) impairments.

30The above paragraph is then immediately followed by a Table, wherein Dr. Rockman sets out in chart form, a class 3 moderate impairment in activities of daily living and a class 4 marked impairment in the other three domains of function.³ Dr. Rockman does not show how she assessed the severity of the applicant’s limitations in relation to each of the four functional domains, as specified in Chapter 14 of the AMA Guides.

31While Dr. Rockman testified at the hearing, the information about how each impairment level had been arrived at was not in her report. Her report was completed in April 2021. Her testimony at the hearing nearly two and a half years later, in October 2023. Witnesses may review notes to refresh their memory, but in this case the Tribunal had been advised by the applicant that it could not comply with the Tribunal’s order to produce notes from catastrophic impairment assessors because no such notes existed. During cross-examination, Dr. Rockman indicated that she would have to review her notes to answer a question put to her about her assessment.

32While Dr. Rockman’s report includes information about history, documentation, interview information, testing and the like, given the lack of reasons in Dr. Rockman’s 2021 report as to how she arrived at impairment levels and the failure to produce notes from her assessment, I cannot place significant weight on her findings on proposed impairment levels.

33I also have other concerns about the basis for Dr. Rockman’s conclusions. As set out earlier, Dr. Rockman indicated that she relied on Ms. Rogozinsky’s occupational therapy report in arriving at impairment levels. However, I do not find that Ms. Rogozinsky’s report which was based on a one-time October 1, 2020 assessment provides a reliable foundation for determining ongoing impairment. For example,

i. Ms. Rogozinsky’s report documented that during the assessment the applicant was taking many short breaks and saying he could not do much more. However, the report did not identify that Ms. Rogozinsky’s one day assessment had been carried out over some eight hours and conducted wholly by videoconference. This information, relevant to stamina and focus, was not included in the written report which Dr. Rockman relied upon for determining levels of impairment. These assessment conditions were only brought to the Tribunal’s attention in Ms. Rogozinsky’s hearing testimony. A need for multiple breaks and other indications of a lack of stamina were not similarly indicated in other assessments of the applicant.

ii. The October 2020 assessment relied upon by Dr. Rockman does not appear to reliably depict the applicant’s longer-term circumstances. For example, Ms. Rogozinsky reported that the applicant had not found work since he became licensed as a lawyer; however, he started full-time work within the month of her 2020 assessment. Ms. Rogozinsky reported that the applicant and his wife were discussing separation; nonetheless the applicant and his spouse were still together three years later and had started a family. Ms. Rogozinsky reported that “the magnitude of Mr. [Z]’s functional cognitive impairments will become more evident as he engages in daily tasks requiring higher cognitive demands” and “his overall abilities would likely diminish drastically within the context of a real-life environment.” However, in July 2021, after the applicant had been consecutively employed full-time for nine months, he underwent a three hour in-person assessment with occupational therapist, Ms. Tandon. There was no suggestion of a drastic decline in the applicant’s abilities as predicted by Ms. Rogozinsky; rather, Ms. Tandon observed that the applicant tolerated the three hour assessment well overall, completed all tasks in front of him, was punctual and prepared, and did not exhibit overt signs of anxiety and/or distress.

34The respondent submitted that much of Dr. Rockman’s testimony about impairment levels was not about function which is the basis for ratings under the AMA Guides, but about suicidality and depression. I agree that much of Dr. Rockman’s testimony as to why the applicant had marked impairments focussed on such factors, but accept that they can have relevance in addressing function. For clarity, I note that Dr. Rockman confirmed at the hearing that she diagnosed the applicant with an adjustment disorder and not a major depressive disorder.

35I find however that Dr. Rockman’s testimony about the extent of the applicant’s suicidality appears to go beyond what is supported by broader evidence before the Tribunal. For example, Dr. Rockman testified about a 2018 suicide attempt (five months post-accident) which was reported in Ms. Rogozinsky’s report. However, hearing evidence from the applicant and documentary evidence from his family physician, Dr. Vaidyanath and Dr. Curran all identified this as a plan, not an attempt.

36Dr. Rockman also testified about how suicidal ideation affected her office’s efforts to carry out the psychological assessment in the fall of 2020. The assessment was initiated on October 8, 2020 by Ms. Rockman’s associate, Ms. Farrow. The applicant had identified that the week had been very triggering for him, and the assessment was not completed that day as Ms. Farrow was concerned about the applicant’s suicidal ideation. She left a voice message for the applicant’s treating neuropsychologist, Dr. Curran, and she also put a safety plan in place, which included the applicant’s spouse and others. The assessment with Dr. Rockman’s office was put over to November 3, 2020. According to Dr. Rockman’s report, on November 3, 2020 Ms. Rogozinksy’s office (which coordinated the applicant’s catastrophic impairment assessments) advised Ms. Farrow that the applicant had heightened suicidal ideation and Ms. Farrow determined that it would not be safe to proceed on November 3. The psychological assessment for November 3 was rescheduled.

37Dr. Rockman testified that it was not safe to proceed on the November 3 date because the applicant was triggered as he had been in another accident. This appears to be in error. The applicant did not have a further accident before the scheduled November 3, 2020 appointment – the second accident occurred just before the resumption of the assessment on March 11, 2021. The applicant denied suicidal ideation at the March appointment and the assessment was completed on March 11, 2021 without issue.

38With regard to the need to postpone the November 3, 2021 assessment, the evidence shows that the applicant started full-time work on October 26, 2021. Dr. Rockman’s report later stated that the applicant advised that he was starting a new job and did not want to be activated by the continuation of the assessment. The applicant’s immediately preceding appointment with Dr. Curran on October 21, 2020 documented that he was feeling better, denied being suicidal, was applying for work and had two potential prospects.

39While there had been times when suicidal ideation had been identified, it did not generally appear as an ongoing concern in the applicant’s treatment and assessments. For example, Dr. Sivasubramanian, testified that he did not find suicidal ideation to be a symptom when he assessed the applicant in 2021 and that the applicant reported to him that he did not have a history of self-harm. Dr. O’Brien’s chart from 2019 to 2023 consistently confirmed no active suicidal ideation or history of self-harm.

40I am not persuaded that the factors which Dr. Rockman relied upon are sufficient to support that the applicant has a marked level of impairment in all domains of function other than activities of daily living.

41The evidence before the Tribunal about the applicant’s impairment levels is not however limited to Dr. Rockman’s report and testimony. Accordingly, I will address the totality evidence as to the applicant’s functioning under Criterion 8 domains, keeping in mind both the evidence of the applicant’s pre- and post-accident functioning.

Functional Domain: Activities of Daily Living

42Chapter 14 of the AMA Guides describe “Activities of Daily Living” as including activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities. The AMA Guides state:

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 of 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.

43When explaining what is meant by the overall degree of restriction, the AMA Guides give the example that while a person might be able to cook and clean, if they were too fearful to leave the home to shop or see a physician, the restriction may be considered marked.

44Neither of the Criterion 8 assessors found that the applicant had a marked level of impairment in activities of daily living. Dr. Rockman identified a moderate level of impairment in activities of daily living whereas Dr. Sivasubramanian identified a mild level of impairment.

45At the hearing, the applicant submitted that the assessors did not have an accurate picture of his activities in this domain. I have therefore considered the broader hearing evidence in relation to this domain. For example, the testimony for example, of the applicant, his spouse and sister-in-law showed that while the applicant does participate in the household, such participation is limited and not reliable in activities such as childcare, meal preparation, cleaning, caring for the dog, and shopping. As a result, additional responsibilities are assumed by his spouse and his sister-in-law. As well, there is evidence that the applicant’s spouse has become more of a caregiver than romantic partner.

46The applicant nonetheless has demonstrated some ability of successful function in daily living – such as being employed for most of the period since 2020, carrying out adequate self-care, starting a family, having continued relationships with other family members and some friends, preparing some light meals, attending for appointments, listening to podcasts, occasionally going to the gym, obtaining his drivers’ license and driving, and accessing the community through public transit.

47For the applicant to have a marked level of impairment, the preponderance of evidence would have to show that the applicant’s overall ability in this domain significantly impedes useful functioning. The applicant has not directed me to evidence which warrants overriding the conclusions of the assessors with respect to this domain. I find that the applicant’s impairment in the domain of activities of daily living is not at a marked level.

Domain of Function: Concentration, Persistence and Pace

48According to the AMA Guides, the domain of concentration, persistence and pace speak to qualities needed to perform many activities of daily living including task completion, identified as follows:

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.

49Dr. Rockman found that the applicant had a marked level of impairment. Dr. Sivasubramanian determined that the applicant’s impairment was moderate in this domain: in other words, the applicant has a level of function compatible with some, but not all, useful functioning.

50Before the accident the applicant had a high level of functioning, for example, receiving recognitions for excellence in his first and second years of law school. The evidence was undisputed that after the accident, the applicant’s cognitive and functional challenges significantly affected his studies in his third year of law school. However, based on his prior learning, support from friends and additional accommodations approved by the law school, (such as additional time for assignments and exam-writing accommodations), the applicant was able to complete his third year on a full-time basis and with a regular courseload. Although short of his pre-accident levels of achievement, the applicant was able to demonstrate that he met the school’s academic requirements and standards, and obtained his law degree.

51After law school, the applicant completed his articling year in a leading law firm where he had previously been employed as a summer student, and successfully completed the Law Society of Ontario’s licensing process.

52For the Law Society licensing examinations, the applicant secured the assistance of Dr. Brandys to obtain accommodations for exam-writing. The exam-writing accommodations sought for licensing were for the following purposes: to enable the applicant to optimize his attention, allow sufficient time of processing and retrieval, minimize distractions, and enable him to optimize his attention and concentration. Dr. Brandys advised the Law Society that all of the accommodations which she proposed were to “allow him to show his other strong cognitive abilities and training relevant to the legal profession for this examination.” With accommodations approved by the Law Society, the applicant had sufficient strengths and functionality to demonstrate that he met the examination standards to be licensed as a lawyer.

53Dr. Rockman testified that to determine impairment levels it is necessary to consider whether the applicant could have passed his examinations without accident-related accommodations. While accommodation needs are relevant to assessing functional levels for Criterion 8 in the accident benefits context, it is one of many factors. In this case, it remains that with approved and available accommodations, the applicant was able to demonstrate that post-accident he has met both the academic and licensing standards for lawyers. There has been no evidence of restrictions or conditions on his license to practice law.

54The applicant was not hired back to his articling firm when he became licensed as a lawyer. Some months after becoming licensed, a partner from the firm was instrumental in the applicant securing a full-time three-month contract for a relatively high level, albeit non-lawyer, labour relations position. After the applicant had been working in that role for some weeks, there was evidence that the employer was interested in converting his contract to a permanent position, however, the applicant sought to pursue career plans as a lawyer and accepted an offer of employment at a law firm which started at the end of January 2021. Less nine months or so of medical and parental leave, the applicant remained employed at the firm for nearly two and a half years before leaving the firm in July 2023.

55There is no question from the evidence that the applicant’s accident-related challenges in the domain of concentration, persistence and pace kept him from remaining at the law firm beyond July 2023. There were indications of some success during his tenure of over two years, with for example, the partner from the firm testifying that the applicant’s ability to research was strong and good, and his legal writing skills were “quite decent.” However, the partner also testified that the applicant was not an economically productive associate and there were serious issues with for example, meeting deadlines, tangential tendencies, and docketing.

56Starting July 2022 the applicant took some weeks of medical leave. The following month, the firm made enquiries of the applicant’s neuropsychiatrist, Dr. O’Brien, about accommodation needed by the applicant. Dr. O’Brien responded by stating that the applicant would likely be able to meet most or all of his work requirements with accommodations and indicated that the applicant was actively pursuing professional advice on this. However, no accommodations were actually identified at that time and after a vacation period, the applicant went on parental leave until March 2023.

57Other than a graduated return-to-work at the law firm upon the March 2023 completion of the applicant’s parental leave, there is no evidence of workplace accommodations being instituted for the applicant since he became licenced as a lawyer. After the applicant’s return from parental leave, there was no evidence of an improved ability to meet the demands of the firm, and ultimately his employment came to an end in July 2023.

58After his July 2023 departure from the law firm, the applicant obtained a two-month contract position as in-house counsel with a national organization. The August 2023 letter of hire stated that the length of the employment may be shortened based on satisfactory performance. As of the date of hearing, the applicant was three-quarters of the way into the contract with no suggestion of early termination. The Tribunal was not presented with any evidence showing that, pending need, the contract would not be extended or renewed.

59It has been devastating for the applicant not to be able to work to his pre-accident potential in his chosen career because of accident-related impairments; but this is not an overriding factor in determining impairment levels for the purpose of accident benefits. It is not test for a marked impairment. The overall evidence at the hearing shows that the applicant has retained sufficient function in the domain of concentration, persistence and pace, as well as in the domain of adaptation, to be employed in some work engaging his legal background and experience.

60Apart from career and workplace, there was other evidence pertaining to the applicant’s functioning in the domain of concentration, persistence and pace.

61The applicant was consistently observed by health assessors as being a good historian and maintaining continued engagement in assessments. Ms. Rogozinsky observed that the applicant persevered through to the completion of the required activities in her full-day videoconference assessment. In a full day of neuro-psychological testing at her office in December 2018, Dr. Brandys observed that the applicant was motivated, not overly pain focussed, showed good frustration tolerance, and persevered on all tasks through completion.

62In addition, Dr. Sivasubramanian’s assessment documents that in his assessment, the applicant’s energy level was relatively intact, he did not display signs of a gross thought disorder, there were no word finding difficulties, and he carried out activities with a relative degree of independence. Ms. Tandon observed during her aforementioned 2021 three-hour assessment that the applicant’s insight and judgment was sound, he followed multi-step commands, he responded appropriately to emergency and safety scenarios, he completed cognitive tests without significant difficulty, he did not request rest breaks, and he checked his phone for updates with the assessment being carried out during his work hours.

63The applicant, his spouse, and his sister-in-law testified about the applicant’s functioning in his homelife in relation to this domain, illustrating how the accident had diminished the applicant’s ability to retain focus and stay on task, create issues with reliability, and make him susceptible to overwhelm.

64The applicant’s spouse has testified that pre-accident, she could count on the applicant’s organizational and administrative skills, giving various examples, such as independently planning and managing major renovations including setting up spreadsheets, negotiating mortgages, and managing tradespeople. Since the accident, she has had to take over the administration of home finances. There was evidence about the applicant getting overwhelmed or flustered when with his infant son and the applicant’s spouse and sister-in-law testified that they try to have someone available as back-up when the applicant was looking after him.

65The applicant uses a whiteboard and has support from his spouse but remains responsible for his medications. He needs reminders but is relied on for other tasks such as moving the car for on-street parking requirements. While his spouse testified that the household tasks he undertakes are often not completed properly (such as setting out the preparations for sandwiches but forgetting plates), the applicant is nonetheless responsible for some meal preparation and participates in some household chores.

66I find that the applicant’s most severe accident-related impairment level is in the domain of concentration, persistence and pace. Nonetheless, despite the serious post-accident challenges the applicant has faced, his overall qualities and strengths have enabled functioning in this domain, including the ability to carry out some work in professional settings.

Area of Function: Adaptation

67The AMA Guides explain the domain of Adaptation (or “Deterioration or Decompensation in Work or Work-like settings”) as a

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.

68Dr. Rockman found that the applicant had a marked level of impairment in this realm. Dr. Sivasubramanian who assessed the applicant on September 30, 2021 determined that the applicant’s impairment was mild.

69As discussed more extensively in the domain of concentration, persistence and pace, even with the challenges faced since the accident, the applicant has managed to make his way forward – completing law school, becoming a lawyer, carrying out significant activity in his daily life and with his family, working as a full-time associate in a law firm for over two years, acquiring work with references from previous colleagues, and as of the date of hearing, being employed full-time as a lawyer.

70I recognize the evidence, including the testimonial evidence of lay witnesses, about the applicant’s tendency to withdraw, struggle with indecisiveness, and avoid stressful situations and confrontation. However, I am not persuaded that the overall evidence amounts to a marked impairment in the domain of adaptation. There is substantial evidence of the applicant’s ability to interact reasonably with others, continue in difficult situations, and be able to present without overt signs of stress and anxiety.

71I find on balance that the overall evidence of the applicant’s functioning shows that he has maintained ability to persist through stressful circumstances. The applicant has not demonstrated a marked level of impairment in adaptation.

Area of Function: Social Functioning

72The AMA Guides describe “Social Functioning” as the 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.

73Dr. Rockman identified that the applicant has a marked level of impairment in social functioning whereas Dr. Sivasubramanian found there was no more than mild impairment in this realm. I find that the evidence does not support the impairment level identified by Dr. Rockman.

74Throughout the hearing evidence, there are consistent descriptions about the applicant being cooperative, pleasant, interacting well, making good eye contact and so forth. None of the assessors identified any significant issue with communications. As previously discussed, the applicant’s social functioning skills are at a level where colleagues have provided references and facilitated employment in environments requiring the ability to interact well with others. He has successfully interviewed for work positions and maintained such positions.

75The applicant and his family members testified about the changes in the applicant’s social functioning. Pre-accident for example, he was outgoing, jovial and proactive in organizing and participating in social events. Post accident, he rarely interacts with new people, he tends to withdraw, and is rarely refreshed by gatherings. Social events are now almost invariably initiated by his spouse or others reaching out to him. While Ms. Rogozinsky testified that social activities are less than four times per month, this nonetheless remains indicative of a fair level of function. The evidence shows that the applicant continues to interact with and be appreciative of friends and family members. The applicant and his spouse have started a family, and even though his spouse and sister-in-law take prime responsibility in caring for the child, the applicant plays an active role.

76I find that the evidence does not support factors contemplated by the AMA Guides for marked impairment in social functioning.

Conclusion – Catastrophic Impairment

77As stated previously, in determining impairment levels I have considered the high levels of the applicant’s pre-accident achievements and abilities. However, even if the applicant’s post-accident impairment level in the domain of concentration, persistence and pace were found to be at a marked rather than moderate level this would not suffice for catastrophic designation under the Schedule as I find that the applicant has no more than a moderate level of impairment in the domains of activities of daily living, adaptation and social functioning.

78As the applicant does not have a marked impairment in at least three of four domains of function as required under Criterion 8, he is not catastrophically impaired under section 3.1(1) 8 of the Schedule.

79To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

80I find that the applicant has not demonstrated entitlement to the treatment plans claimed, for the reasons that follow.

$2,200.00 for speech language assessment, proposed by Deena Rogozinsky Therapy in a plan dated February 23, 2020?

$2,200.00 for an occupational therapy assessment, proposed by Deena Rogozinsky Therapy in a plan dated February 7, 2020?

81The issues in dispute included two treatment plans proposed by Deena Rogozinsky Therapy for a speech language assessment (February 23, 2020) and an occupational therapy assessment (dated February 7, 2020). The proposed treatment plans (OCF-18 forms) were not entered into evidence and the applicant did not produce any clinical notes or records in relation to these plans if such existed. However, as the Case Conference Report and Order in this matter identified that the plans were in dispute, and as the hearing exhibits included the respondent’s “explanation of benefits” and correspondence refusing the above plans, I will address them here.

82As noted, the plan for a speech-language assessment proposed by Deena Rogozinsky Therapy was not included in evidence. Ms. Rogozinsky, in her hearing testimony did not speak to the goals of the 2020 assessment, or otherwise address the plan she proposed in 2020.

83Without evidence about reason for proposing the 2020 assessment, it is not possible to determine its reasonableness and necessity. On this basis, I find that the applicant has not met his onus.

84I recognize that in a report dated April 8, 2019, Dr. Brandys noted “High level speech language therapy to address high level demands for verbal expression/word-finding and reading (including speed of reading and complex reading comprehension and written expression) is recommended with a very experienced [speech language pathologist].” However, as noted earlier it is unknown whether this was the purpose of the 2020 assessment.

85After 2019, Dr. Brandys next saw the applicant for four appointments in 2023. In her hearing testimony Dr. Brandys acknowledged that in 2019, they wanted speech therapy but the applicant was overwhelmed with all that he had on his schedule. When asked about the applicant’s treatment needs for the future, she testified about psychological and neuropsychiatric treatment but did not reference speech therapy. Dr. Brandys’ chart notes for the 2023 appointments make no reference to a need for speech language services.

86In a neurophysiatry assessment completed by Dr. Vaidyanath on October 5, 2022, one of 18 recommendations states the applicant “would benefit from working with a speech language pathologist to improve his communication skills.” However, apart from Dr. Vaidyanath‘s documentation of the applicant’s report of “occasionally slowed speech, especially at the end of a busy workday,” I was not directed to any specific reasoning in support of this recommendation. Dr. Vaidyanath’s neurological examination which was part of this 2022 assessment showed that the applicant’s speech and articulation were normal.

87Lastly, Dr. O’Brien, the neuropsychiatrist who began seeing the applicant in May 2019, documented in his initial assessment that the applicant was very well spoken, with speech being normal in rate, rhythm and volume and no latency in speech. From that date through the last documented visit in June 2023, multiple entries in Dr. O’Brien’s chart document the applicant’s speech as normal. This is consistent with overall evidence of assessors as well as with the applicant’s presentation at the hearing.

88Given the totality of the evidence and the fact that the goals of the 2020 assessment were not presented to the Tribunal, I find that the applicant has not discharged his onus in showing that the 2020 plan proposing a speech-language assessment is reasonable and necessary.

89With regard to the February 2020 plan for an occupational therapy assessment, I note that the applicant received occupational therapy services from October 2018 to February 2019. However, on February 15, 2019 the applicant asked that future occupational therapy sessions be put on hold because of the demands he was facing in law school. While Ms. Rogozinksy submitted the plan proposing an occupational therapy assessment in 2020, there is no evidence, either by way of the plan itself or by Ms. Rogozinsky’s testimony, identifying the goals of the proposed assessment.

90Without evidence of the purpose of the assessment, it is not possible to evaluate its reasonableness and necessity. The applicant has not met his onus in showing that the proposed plan for an occupational therapy assessment is reasonable and necessary.

Is the applicant entitled to $4,988.00 for occupational therapy services, proposed by Miranda Mo & Associates in a plan dated February 9, 2022?

91The February 2022 occupational therapy treatment plan for $4,988.00 proposed by Miranda Mo and Associates is for eight sessions of therapy for motor and living skills at $1,596.00; two sessions of therapy for cognition and learning at $399.00 and two sessions for education for promoting health and preventing disease at $399.00. The remainder of the plan is for travel time, cognitive assessment and monitoring, communication and education to PSW/caregivers/family, referral to services, planning and preparation, documentation.

92I find that this 2022 plan is not based an accurate reflection of the applicant’s circumstances. When providing commentary about the applicant’s need for the services proposed, Ms. Mo states that a high level of occupational therapy is required to assist the applicant “with the resumption of functional roles in his schoolwork, at home and in the community, as well as to provide cognitive assessment and interventions.” This is based on outdated and/or inaccurate information. The applicant resumed his schoolwork in 2018, completing it in 2019. By the time of the 2022 assessment, the applicant had finished his last year of law school, passed his licencing examinations, and had been working full time in law firms and labour-related environments for well over two years.

93As well, there is no suggestion that occupational therapy services received by the applicant in his first-year post-accident had been considered in arriving at the February 2022 plan. Evidence before the Tribunal shows that the applicant had received occupational therapy services to address post-accident cognitive issues and engagement in daily tasks (i.e., school, self-care, and housekeeping) from October 2018 to February 15, 2019.

94I further note that Ms. Tandon, who conducted an in-person occupational therapy assessment of the applicant in May 2022 in relation to the services proposed in the February 9, 2022 plan, determined that, based on the applicant’s physical, cognitive and emotional functioning, the proposed plan was not reasonable and necessary. Ms. Tandon recorded applicant reports that he was independent in self-care, could assist with some cleaning, cooking and shopping, was driving, was taking medications independently, using online banking independently and working fulltime.

95Lastly, the plan shows that Ms. Mo relied on the applicant having been assessed as having marked impairments in social functioning, adaptation to work, and concentration, persistence and pace. As previously discussed, I have found that the hearing evidence does not support this degree of impairment.

96I find that the applicant has not demonstrated that the services proposed in the February 2022 occupational therapy treatment plan are reasonable and necessary.

$4,548.20 for physiotherapy services and related goods, proposed by Nadir Mawji, MUV Therapy Physio and Sports Medicine in a plan dated March 25, 2021?

$5,589.76 for physical modalities of treatment (massage, physiotherapy and chiropractic), proposed by Nadeem Ahmed, The Clinic in a plan dated November 8, 2022?

97The March 2021 plan for $4,548.20 proposed by Nadir Mawji, MUV Therapy Physio and Sports Medicine includes 24 sessions of physiotherapy treatment and related goods (such as exercise equipment and orthopaedic devices). The November 8, 2022 plan for $5,589.76 proposed by Nadeem Ahmed of The Clinic includes a total of 48 sessions of physiotherapy, chiropractic treatment and massage therapy.

98I find that the applicant has not demonstrated that the plans are reasonable and necessary. There is also know evidence that either of these treatment plans had been incurred.

99As the proposed treatment plan dated March 25, 2021 for physiotherapy services and related goods was not entered into evidence, the goals of the proposed treatment and related goods are not before me. However, the Case Conference Report and Order in this matter identified that entitlement to this plan was an in issue dispute. In addition, the hearing exhibits includes both the respondent’s “explanation of benefits” and the respondent’s correspondence refusing the above plans, as well as a May 3, 2021 insurer assessment carried out in relation to the plan by orthopaedic surgeon, Dr. Esmat Dessouki.

100Both the March 2021 and the November 2022 plans propose exclusively physical treatment modalities. With regard to the applicant’s physical treatment needs, the applicant relied upon the testimonial and documentary evidence of orthopaedic surgeon, Dr. Tajedin Getahun. As the parties did not expressly distinguish between the plans in the course of their submissions, I will address both plans together.

101Dr. Getahun assessed the applicant on April 12, 2021 as part of a multi-disciplinary catastrophic impairment assessment. While orthopaedic surgeons Dr. Evan Watts, Dr. Paul Kuzyk, Dr. Marissa Bunyon and Dr. Jesse Wolfstadt were involved in treating the applicant, this was in 2018. I have not been directed to specific evidence from these physicians in support of the need for the 2021 and 2022 plans.

102On referral from his family physician, in July 2021, the applicant saw Dr. Derek Boyd at a sports medicine and rehabilitation clinic. At that time, Dr. Boyd recommending home exercise with a focus on strengthening, athletic compression socks for times when the applicant was standing for lengthy periods, a lace up ankle brace for activity, and conservative pain strategies (ice, elevation, Voltaren, and over-the-counter analgesic). I do not find that Dr. Boyd’s consultation report is sufficient to support the reasonableness and necessity of the 24 sessions of physiotherapy proposed by the 2021 treatment plan or the 2022 plan.

103I further note that in a 2022 neuro-physiatry report prepared on behalf of the applicant, Dr. Vaidyanath opined that the applicant had achieved maximum medical recovery of his orthopaedic injuries.

104Insurer assessments were carried out for both of the treatment plans. As indicated above, an insurer assessment was conducted in relation to March 2021 plan by Dr. Dessouki. Dr. Edwin Urovitz, an orthopaedic surgeon, assessed the applicant on behalf of the respondent in relation to the November 2022 plan.

105With regard to musculoskeletal issues, the evidence of Drs. Getahun, Dessouki and Urovitz all shows that in the 2018 accident, the applicant had soft-tissue injuries with a right wrist fracture and likely a micro fracture of the left ankle.

106Dr. Dessouki’s 2021 examination found that the applicant had a functional range of motion of his cervical spine, left shoulder, lumbar spine, and left ankle, with a decreased range of motion of his right wrist attributed to a recent separate injury. While both Drs. Urovitz and Getahun documented some degree of restriction in the applicant’s anatomical range of movement, neither suggested that he did not have a functional range of motion.

107Dr. Dessouki found in his assessment that there was no objective evidence of residual musculoskeletal impairment attributable to the injuries sustained in the accident. Dr. Urovitz stated that the occasional use of a compression stocking for left ankle swelling would be considered reasonable, that there were no major objective signs of accident-related orthopaedic impairment and that the treatment was unduly prolonged. Dr. Getahun testified that the applicant presented as someone who was outside of the time course for the injuries, so from an orthopaedic perspective he had moved into a chronic pain range. Dr. Getahun diagnosed him with chronic pain syndrome.

108Dr. Getahun testified that purely physical treatment would not be beneficial given the length of time that had elapsed since the injuries; and that to effectively address chronic pain concerns, physical treatment needed to be tied into non-orthopaedic treatment. Neither of the treatment plans at issue were linked to non-physical modalities of treatment or appeared to be part of a larger plan to address chronic pain syndrome.

109I find that the applicant has not shown that the 2021 and 2022 proposed treatments plans for physical modalities of treatment would be expected to contribute to the applicant’s maximum medical recovery or are otherwise reasonable and necessary.

ORDER

110The applicant:

i. has not sustained a catastrophic impairment as defined by the Schedule (Criterion 8) ii. is not entitled to $2,200.00 for speech language assessment proposed in a plan dated February 23, 2020 iii. is not entitled to $2,200.00 for an occupational therapy assessment, proposed in a plan dated February 7, 2020 iv. is not entitled to $4,988.00 for occupational therapy services proposed in a plan dated February 9, 2022 v. is not entitled to $4,548.20 for physiotherapy services proposed in a plan dated March 25, 2021 vi. Is not entitled to $5,589.76 for physical modalities of treatment (massage, physiotherapy and chiropractic), proposed in a plan dated November 8, 2022.

Footnotes

1. 1At the hearing, only Criterion 8 was at issue.
2. 2For clarity, Deena Rogozinsky was an assessing, not a treating, occupational therapist for Mr. [Z].
3. 3Dr. Rockman’s report identifies the domain of social functioning as being at both the moderate and the marked level of impairment; however her Table shows that the moderate level of impairment is reserved for “activities of daily living.” As “activities of daily living” was omitted from the narrative section, it appears that the Table demonstrates the levels intended.