Licence Appeal Tribunal File Number: 22-004305/AABS
In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Tina Larose
Applicant
and
Intact Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Tina Larose, Applicant
Mikolaj Grodzki, Counsel
For the Respondent:
Brian Darling, Adjuster
Shivani Metha Mehta, Counsel
Christine McKenna, Counsel
Heard by Videoconference:
January 8-12, 2024
OVERVIEW
1Tina Larose, (the “applicant”) was involved in an automobile accident on May 3, 2012, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Intact Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
The applicant seeks to proceed without a hearing and requests a summary judgement of the applicant’s catastrophic impairment claim
2I find the applicant’s catastrophic impairment claim is substantive and requires a hearing to decide the merits of the case.
3The applicant submits, in her motion dated May 25, 2023, that a full hearing on the issue of catastrophic impairment is not necessary and may be dealt with by way of a preliminary issue motion to avoid further delay and the significant costs of an oral hearing. The applicant reasons this would be appropriate because the Tribunal has been “granting res judicata motions” in favour of insurance companies to dispose of claims without a hearing. The applicant further explains that a summary judgement, in this case, is consistent with the consumer protection character of the Schedule and is the proper method to dispose of this matter. The applicant principally relies on Dhanraj Jaggernauth v. Economical Mutual Insurance Company, 2010 ONFSCDRS 147 (“Jaggernauth”) as well as SM v. Aviva Insurance Company of Canada, 2020 ON LAT 14426 (“SM”) to support her position.
4The respondent argues that neither the Statutory Powers Procedure Act (the “SPPA”) nor the Schedule give the Tribunal the authority to render a summary judgement decision on a substantive issue. The respondent also submits that Rules 3.4 and 3.5 of the 2017 Common Rules of Practice and Procedure for the Licence Appeal Tribunal, Animal Care Review Board, and the Fire Safety Commission (the “Rules”) outline limited circumstances under which an application may be dismissed without a hearing, and that there is no evidence to justify a departure from the standard practice in this case.
5I agree with the respondent and find the Tribunal does not have the authority to dispose of substantive issues without a hearing as the applicant requests. I am not convinced that SM shows otherwise because the substantive issue was not disposed of summarily; rather, the Tribunal did not have jurisdiction to adjudicate the substantive issue in SM because the applicant had not properly applied for the specified benefit as required by the Schedule. Further, I find SM is distinguishable because the parties agreed on the essential (emphasis added) underlying facts and wanted the Tribunal to decide, based on those undisputed facts, where the law led. In this case, the parties do not agree the Tribunal should proceed summarily on the basis of the agreed facts, and disagree that all the essential facts are undisputed, as they were in SM.
6I also find the applicant’s arguments on Jaggernauth to be unconvincing. The applicant proposes that because the assessors for both sides of this dispute determined she sustained mental or behavioural impairments resulting from the accident (i.e., the respondent’s assessor determined moderate levels of impairment and the applicant’s assessor determined both marked and extreme levels of impairment), it is entirely reasonable to argue she may fall into any of these levels. She adds that these impairment levels represent “shades of grey,” and provide an informed estimate of impairment versus a precise measure of the extent to which such impairments disable her from specific tasks. The applicant therefore reasons that because the Schedule is meant to be consumer protection legislation—and owing to the ambiguity between different levels of impairment—the Tribunal should make a summary finding that favours the applicant.
7I disagree. While I accept that Jaggernauth weighed “consumer protection” in its reasoning, I find the decision did not summarily resolve the ambiguity between levels of impairment. Rather, the issues of catastrophic impairment were decided on the merits after a full hearing. This is a key distinction between Jaggernauth and the applicant’s position that, in my view, informs the need for a hearing in this matter.
8I also find Rule 3.4 (c) underscores the Tribunal’s lack of jurisdiction to deal with substantive issues summarily because this Rule speaks only to not meeting the statutory requirements for bringing the appeal (i.e., a procedural issue and not merit).
9Further, I disagree that the applicant’s “res judicata” logic is relevant because this matter—as it pertains to the merits of the substantive issues—has not already been adjudicated by a court or a tribunal. Contrary to the applicant’s position, I see no basis to justify a summary judgement in this case on account of past cases before this Tribunal that were disposed of without a hearing because the applicants were statutorily barred from proceeding with their applications.
10I therefore dismiss the applicant’s motion and order the hearing in this matter to proceed.
SUBSTANTIVE ISSUES
11The substantive issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
12The applicant has not sustained a catastrophic impairment. No award is payable.
PROCEDURAL ISSUES
The respondent asks the Tribunal to order the applicant to produce outstanding disclosures, exclude witnesses, and award costs.
13I decline to order productions from the applicant that remain outstanding at the start of the hearing or bar any corresponding witness testimony. However, I find the applicant is liable for costs requested by the respondent.
14The respondent filed a motion dated September 20, 2023, which it amended at the case conference to request an order requiring the applicant to produce outstanding disclosures within five days of the Tribunal’s disposition on the motion, and an order barring witnesses who authored the outstanding productions from testifying at the hearing. The respondent also asks for costs in the amount of $250.00.
15The respondent submits that productions ordered during the case conference were due April 19, 2023, and that at the time of the respondent’s motion, two were late and five remained outstanding. The respondent points to reminders it provided to the applicant about her late productions on May 3, 2023, June 15, 2023, July 24, 2023, and August 24, 2023. The respondent adds that no progress on productions was made between each reminder. The respondent explains that costs are sought because the applicant’s failure to produce ordered productions is unreasonable and frustrates the Tribunal’s processes.
16The applicant argues she cannot control the response of third parties to her production requests, and that she made best efforts to obtain all the productions. The applicant pointed to a chart of ordered productions and the status of each up to the time of the hearing.
17I find almost all of the applicant’s disclosures ordered by the Tribunal were produced late, and that two productions remain outstanding at the time of the hearing. While I agree the outstanding productions are relevant to this matter, I do not find it practical to order they be disclosed at this point because only four days remain until the end of the hearing. Given that I am not ordering productions at this late stage, an order to bar witness testimony is not necessary.
18Pertaining to costs, I rely on Rule 19.5 and find the applicant’s conduct was unreasonable. I do not accept that the applicant made best efforts to obtain all the late and outstanding productions. The Ontario Health Insurance Program (OHIP) summary for the years 2005 to 2012 was obtained by the applicant on May 9, 2013, and the OHIP summary for years 2012 to 2014 was obtained on December 29, 2014. However, neither of these summaries were produced until August 29, 2023—more than four months after the production deadline and years after they had been obtained. A reasonable explanation for withholding these disclosures was not offered by the applicant. The applicant made only one request for an updated OHIP summary to cover the remaining period from 2015 onwards. This request was made on September 21, 2023—five months after the production deadline had passed to produce this item. This OHIP summary remains outstanding, and the applicant did not provide a reasonable explanation for delaying her request for this item, or satisfactorily explain why a follow-up attempt to obtain it was not made.
19The applicant did not request the clinical notes and records from Montfort Hospital until April 18, 2023—the day before the deadline ordered by the Tribunal to produce these records to the respondent. The applicant, upon obtaining these records on May 31, 2023, then waited another three months to produce them to the respondent and did not offer a reasonable explanation for this, or for why its request for these records was not made within a reasonable time after the case conference. I find the chart included with the applicant’s submissions reveals similar issues of unexplained delays in requesting or producing records for most of its ordered disclosures.
20Given the above analysis of the applicant’s productions, I find the applicant’s conduct was unreasonable because she was either late in making her production requests or delayed producing them to the respondent until well after the deadline without reasonable explanation. This has interfered with the Tribunal’s ability to carry out an efficient and effective hearing process vis-à-vis the added time required to adjudicate this motion. It has caused the respondent to undertake added administrative work as evidenced by the reminder letters and the notice of motion.
21I further accept that the applicant’s failure to make timely disclosures frustrates the Tribunal’s ability to determine the issues and the parties’ ability to make full and fair submissions. For example, per the case conference report and order released on February 18, 2023, the respondent was unable to request production of clinical notes and records pertaining to any other hospitals, clinics, treating physicians or surgeons attended by the applicant because OHIP records from 2015 onwards were never produced and, in fact, were not requested in a timely manner. While Rule 19.6 allows me to award a different amount than requested, I see no reason to do this as I find the misconduct here is proportional to the $250.00 requested by the respondent.
22I therefore order $250.00 in costs payable to the respondent by the applicant.
The applicant seeks to exclude the report and testimony of the respondent’s expert witness
23I allowed the evidence and testimony of Dr. Ranjith Chandrasena (psychiatrist) to proceed at the hearing.
24The applicant submits, in her motion dated October 2, 2023, that Dr. Chandrasena is biased, lacks independence, and is not impartial. The applicant explains that Dr. Chandrasena’s findings are at odds with the bulk of the medical evidence in this case, and that he ignored determinative evidence pertaining to the applicant’s pain, which is a significant factor to her claim. The applicant adds that Dr. Chandrasena is unreliable as his experience is limited, and that his evidence would add little value owing to the dated nature of his reports, which she identified as being three years old.
25The respondent argues that the applicant is relying on expert evidence that is contemporaneous to Dr. Chandrasena’s report, which underscores its relevance. The respondent explains that it was unable to obtain a more recent report from Dr. Chandrasena because the applicant served its new and updated report with too little time for a response. The respondent reasons that since Dr. Chandrasena’s report is its only section 44 Insurer’s Examination (“IE”), excluding this evidence would prejudice the respondent and disadvantage the Tribunal. The respondent adds that while Dr. Chandrasena arrives at different findings from other assessors, this does not constitute bias or a lack of impartiality or independence as proposed by the applicant. The respondent relies on Dr. Chandrasena’s standing as a certified psychiatrist with a CCAT designation to show his evidence is reliable and relevant.
26In addition, the respondent seeks costs in the amount of $500.00 to remedy the conduct of the applicant, which it characterizes as underhanded, frivolous, and vexatious.
27In reply, the applicant says the respondent had a three-month adjournment to get a new report, and that the background of Dr. Chandrasena includes just one chronic pain and one catastrophic assessment seminar in his 44-page resume. The applicant further emphasized that Dr. Chandrasena makes no findings pertaining to chronic pain and offers only a psychiatric opinion.
28It is well settled that relevance is the main consideration when deciding whether to admit evidence to a proceeding. I find Dr. Chandrasena’s evidence—however dated it may or may not be—remains relevant to this matter because the dispute involves catastrophic impairment under Criterion 8 (i.e., mental and behavioural disorders), which is germane to psychiatry. While I also find it is proper for the applicant to address her concerns about Dr. Chandrasena’s conclusions via cross-examination—and the weight afforded this evidence during closing submissions—I do not agree that the applicant’s conduct in filing her motion rises to the point of being vexatious or frivolous, and I therefore decline to order costs.
29I am therefore satisfied that Dr. Chandrasena’s reports and oral evidence should be allowed to obtain a full and fair understanding of the issues in dispute.
The applicant seeks to exclude an updated social media report and its associated media, as well as the testimony of investigators
30I allowed the respondent to rely on its updated social media evidence.
31The applicant submits, in her motion dated October 12, 2023, that the respondent breached the Tribunal’s orders pertaining to productions and evidence, which is procedurally unfair and prejudices her ability to prepare for the hearing. The applicant also argues that none of the medical assessors have had an opportunity to review this evidence, and that the video component of the evidence does not depict an accurate reflection of her capabilities owing to the narcotic-based medication she was taking at the time.
32The applicant specifies that the respondent served her with new evidence on October 6, 2023 (i.e., an updated social media report and video footage prepared by Northwood and Associates Global Investigation Services), which is four days past the Tribunal-ordered deadline for all evidence. The applicant explains that the report was not requested by the respondent until October 6, 2023 (i.e., the same day it was served), despite having ample opportunity to obtain it earlier.
33During the hearing, the applicant amended her motion to include a request for costs in the amount of $250.00. The applicant argued that since costs were awarded to the respondent because her productions were late, it would only be fair to award costs to the applicant because the respondent also produced evidence late.
34The respondent argues that the updated social media report contains posts relevant to this dispute, and that this evidence was served and filed 10 days prior to the hearing in accordance with Rule 9.2. The respondent explains that since the applicant is the content author of the material that appears in the updated report, there should be no surprises that would prejudice her ability to prepare for this evidence. Conversely, the respondent reasons that excluding the evidence would prejudice its ability to present its case and deprive the Tribunal of relevant evidence required to determine the issue of catastrophic impairment.
35I find the respondent filed this evidence late. While I agree that Rule 9.2 establishes that parties need to disclose all evidence they intend to rely on at least 10 days before the hearing, that Rule also specifies “or at any other time ordered by the Tribunal.” In this case, the case conference report and order released on February 18, 2023, compelled the parties to disclose, within 150 calendar days after the case conference, any additional items responsive to items that had already been produced. I find the updated social media report is responsive to the June 2023 social media report earlier served on the applicant, and therefore falls under this deadline and not the 10-day deadline specified in Rule 9.2.
36I also find the prejudice claimed by the applicant was mitigated when the hearing, originally scheduled for October 16, 2023, was adjourned to January 8, 2024, affording the applicant three months of time to review this evidence.
37In my view, the updated social media report is relevant to the applicant’s claim of catastrophic determination. The parties have closing submissions to argue their positions on the weight attributed to this evidence. I therefore order this evidence be admitted to the proceeding for consideration.
38I decline the applicant’s request for costs. I do not agree the respondent’s conduct rises to the threshold of unreasonableness because it was late serving and filing one updated report. The applicant’s conduct is distinguishable by the fact she did not make best attempts to secure multiple productions ordered by the Tribunal; was late serving virtually all productions ordered by the Tribunal; failed to produce two disclosures ordered by the Tribunal; and did not offer even the courtesy of a reply to the respondent’s repeated reminders.
SUBSTANTIVE ISSUES ANALYSIS
39I find the applicant is not catastrophically impaired per the Schedule.
What must the applicant prove?
40The applicant’s accident was on May 3, 2012, and she claims catastrophic impairment under Criterion 8. Accordingly, section 2(1.1) of the current Schedule requires me to apply section 3(2)(f) of the Schedule as it read before amendments made out in Regulation 251/15. Further, consistent with the Court of Appeal’s decision in Pastore v. Aviva, 2012 ONCA 642 (“Pastore”), to prove catastrophic impairment under Criterion 8, the applicant must show she has a Class 4 (“marked”) impairment that significantly impedes all useful function, or a Class 5 (“extreme”) impairment that precludes (i.e., is not compatible with) useful function, in at least one of four areas of functioning due to a mental or behavioural disorder as a result of the accident. Those four areas of functioning are presented in chapter 14 of the 1993 American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition (the “Guides”) as: (1) activities of daily living (“ADL”); (2) social functioning; (3) concentration, persistence, and pace (“CPP”) and (4) deterioration or decomposition in work or work like settings (“adaptation”).
41The Guides set out a three-stage process for evaluating catastrophic impairment based on mental or behavioural disorder. The first stage is diagnosis of any mental disorders. In this case, the parties agree that the applicant is diagnosed with depressive disorder, adjustment disorder, and post-traumatic stress disorder. The next stage involves identifying the impact of symptomology, which is addressed throughout this decision. The third stage is assessing the severity of limitations by determining levels of impairment for each of the four areas of functioning. For this matter, the applicant’s assessor has determined the applicant is markedly impaired in three areas of function, and extremely impaired in the remaining area of function. The respondent’s assessor determined the applicant is moderately impaired in all four areas of function.
Submissions of the parties
42The applicant submits she is catastrophically impaired per Criterion 8 at an extreme level in adaptation, and at a marked level in the other three areas of functioning. She points to diagnoses of several disorders recognized in the DSM-IV (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders) that include depression, anxiety, and post-traumatic stress disorder. The applicant also relies on a diagnosis of chronic pain that collectively resulted from “central sensitization” in her brain after she suffered accident-related whiplash. The applicant relies on the catastrophic impairment assessment and addendum reports completed by Dr. Bobbie Ross (psychiatrist) on March 12, 2020, April 27, 2021, and September 8, 2023, as well as the clinical notes and records of Dr. Maurice Dufresne (family physician), the chronic pain report of Dr. Michael Boucher (general practitioner) dated January 19, 2017, the psychovocational assessment report completed by Dr. Cindi Goodfield (psychologist) on August 9, 2017, the IEs of Dr. Renald Simard (physiatrist) dated October 24, 2012, and September 2, 2014, and the testimony of the applicant’s roommate, Ms. Jillian Mansfield.
43The respondent submits the applicant did not sustain a catastrophic impairment under Criterion 8 and argues that a series of intervening events since the accident are the cause of the applicant’s functional difficulties. The respondent also contends that chronic pain due to central sensitization is not a psychological process, and that the applicant’s pain is due to non-psychological factors that do not qualify under Criterion 8. The respondent relies on the catastrophic impairment assessment and addendum reports completed by Dr. Chandrasena (psychiatrist) respectively on April 22, 2021, and January 18, 2022, as well as the catastrophic in-home assessment report completed by Ms. Sherry Mosher Taillefer (occupational therapist) on April 22, 2021.
44The parties agree that the applicant is suffering pain and functional impairments. Further, the respondent does not contest the applicant’s chronic pain syndrome, which was diagnosed by Dr. Michael Boucher in his 2017 report. While I accept the applicant experiences chronic pain and impairment as a result of this pain, I am not convinced the applicant’s impairments—specifically those owing to a mental and behavioural disorder as required under Criterion 8 in the Schedule—reach the catastrophic threshold.
The applicant’s challenges to the respondent’s expert evidence
45The large part of the applicant’s closing submissions focused on challenges to the reports and testimony of Dr. Chandrasena. I find Dr. Chandrasena presents a more cogent analysis of functional impairment arising from a mental or behavioural disorder than Dr. Ross. While both psychiatrists offer similar diagnoses of depressive disorder, adjustment disorder, and post-traumatic stress disorder, Dr. Chandrasena’s analysis of psychological symptom severity and persistence as it relates to functional impairment is, in my view, more consistent with the Guides. He testified that he relied on Dr. Boucher’s finding that the applicant’s pain exceeds what would be expected from her physical injuries, and that this is the psychological component of her chronic pain that directly contributes to her adjustment disorder. Dr. Chandrasena’s report concludes that the applicant’s functional impairment, as it relates strictly to her psychological symptomology, is not marked or extreme in any area; rather, Dr. Chandrasena assessed the applicant’s functional impairment levels in each area to be compatible with some, but not all useful functioning (i.e., Class 3 or moderate impairment).
46I do not agree with the applicant’s position that Dr. Chandrasena used the wrong version of the Guides to perform his analysis. While Dr. Chandrasena acknowledged he used psychometric testing (i.e., BPRS, PIRS, and GAF) that the 6th edition of the Guides mandates for a criterion 7 analysis, I accept that the 4th edition as specified in the relevant version of the Schedule does not say these tests are incompatible with criterion 8 analysis or discourage them from being used in this context. Further, I find that Dr. Chandrasena did not delegate the scoring of testing results to the nurse who administered the psychometric testing as argued by the applicant. Dr. Chandrasena explained that it is his practice to directly oversee the administration of the test questions and then interpret the results himself. I find no reason to reject this explanation, and I therefore do not agree with the applicant’s submission that Dr. Chandrasena’s report is invalid because he relied extensively on a ratings scale interpreted by his assistant.
47I also decline to place less weight on Dr. Chandrasena’s report owing to the applicant’s position that Dr. Chandrasena’s findings are inconsistent with the contemporaneous April 2021 occupational therapy report completed by Ms. Mosher Taillefer on behalf of the respondent. I find that Dr. Chandrasena’s conclusions do, in fact, consider the applicant’s subjective complaints insofar as they pertain to a mental or behavioural disorder, which is what is required by the 4th edition of the Guides.
48In my view, Dr. Chandrasena’s conclusions are consistent with the bulk of the evidence, which does not support the applicant’s position that she sustained a marked or extreme functional impairment because of a mental or behavioural disorder. I find the applicant’s testimony credited her impairments to physical pain. She testified that she believes her physical pain—which she described as severe every day and all the time without reprieve—is what prevents her from working. More generally, she added she cannot function at all because of her pain and explained that her pain keeps her physically constrained to her room. The applicant also shared that the multiple varieties of medications she takes daily are pain related. She testified that she saw her family doctor for pain and remains on a waiting list to see a chronic pain specialist. In my view, this evidence—when considered in context with the reports of Drs. Boucher and Simard—convincingly attributes the large part of the applicant’s functional impairment to her physical pain and not to a mental or behavioural disorder.
49This is not to say I disagree that the applicant is experiencing psychological symptoms. On the contrary, the applicant testified that pain has consumed her mental health, that she felt like “wasted space,” and that her pain caused her to be sad, snappy, and inhuman. However, in my view, the weight of the applicant’s testimony in this regard is diminished by the lack of supporting medical evidence. Dr. Simard, who assessed the applicant in October 2012, attributed her impairment and disability to physical factors and recommended her treatment consist of a strength and conditioning program. Dr. Simard performed a subsequent examination in June 2014, and, similar to the 2012 report, the applicant did not point me to evidence of mental health complaints or recommendations for psychological assessment or treatment documented by Dr. Simard. The same can be said about the few legible portions of Dr. Dufresne’s clinical notes and records in the first two years after the accident and thereafter.
50In fact, the first medical evidence of the applicant’s psychological difficulties I was pointed to comes more than four years after the 2012 accident when she was assessed by Dr. Boucher in August 2016. But I find this evidence carries less weight. While Dr. Boucher notes the accident induced depression, anxiety, and insomnia, I agree with the respondent’s position that Dr. Boucher’s conclusions were not accurately informed. Dr. Boucher’s report indicates the applicant denied any pre-existing psychological or emotional ailments. However, the applicant testified that she has suffered depression since childhood due to a rough upbringing with her parents and two traumatic incidents of a serious nature. This is underscored in Dr. Ross’ reports, which detail psychological difficulties as early as age 11 that include two suicide attempts, post-partum episodes, and depressive episodes that span up to the time of the accident. In fact, Dr. Ross’ 2023 report says the applicant started anti-depressant medication six months before the accident because of marital difficulties. In her testimony, the applicant recalled she was prescribed Cymbalta and had received psychological treatment at Montfort Hospital prior to the accident.
51In my view, the applicant’s omission of her pre-accident psychological difficulties is significant and diminishes the weight of Dr. Boucher’s analysis in this context. Further, despite these complaints of psychological symptomatology, I was not pointed to evidence that convinces me action was taken on Dr. Boucher’s treatment recommendation to obtain a psychiatric evaluation and ongoing care from a psychologist. In fact, the respondent indicated there are no treatment plans in evidence for psychological counselling or assessment on the applicant’s accident claim, which was not disputed by the applicant. I find the lack of subsequent intervention to address psychological symptomology—when taken in concert with little evidence of accident-related psychological complaints for more than four years following the accident—is more consistent with Dr. Chandrasena’s findings of moderate impairment owing to a mental or behavioural disorder than Dr. Ross’ finding of marked and extreme levels of functional impairment.
Chronic pain’s relevance to Criterion 8 as contemplated by the Guides
52Speaking further to Dr. Ross’ findings, I diminished the weight of her catastrophic reports because I find Dr. Ross’ analysis blends the applicant’s pain and psychological condition without removing from consideration, to any extent possible, any physical causes of her impairment as recommended in the Guides and reinforced in Pastore. In her March 2020 report, Dr. Ross says impairments from all the applicant’s conditions that were “brain-derived” disorders—which she characterized as psychiatric disorders and chronic pain due to central sensitization—were grouped together for the purpose of analysis. Dr. Ross goes on to reiterate, in her April 2021 addendum, that her impairment ratings incorporated all of the clinical brain pathophysiology issues that affect the applicant’s post-accident functioning, including her chronic pain condition. In her September 2023 report, Dr. Ross again confirms that the reason she rated impairments caused by chronic pain is because the applicant’s chronic pain condition is a result of altered brain physiology, and that the applicant’s psychiatric diagnoses are neuropsychiatric conditions caused by altered brain physiology.
53I do not accept Dr. Ross’ rationale for her blended approach, as articulated in her testimony and 2023 report. Dr. Ross said that the 4th edition of the Guides is outdated, and does not incorporate advancements in medical knowledge over the past 30 years. While I accept this may be true, the Schedule nevertheless compels me to apply the 4th edition of the Guides when weighing evidence in Criterion 8 disputes. I further find that pathophysiological brain function is addressed separately from chapter 14 (i.e., mental and behavioural disorders) in the Guides. In my view, Dr. Chandrasena’s opinion that Dr. Ross’ approach is not supported by the Guides—in that pain and pain-related symptoms arising from brain physiology should be dealt with separately in a different chapter of the Guides and not lumped together with the mental and behavioural disorders assessed per chapter 14—is more accurate on balance.
54I also gave less weight to Dr. Ross’ evidence because her analysis offers medical opinions on the physiology of the brain that I find are more properly the field of neurology. Dr. Ross testified that the applicant’s chronic pain is an outcome of her brain getting sick (i.e., a persistent inflammatory neuroimmune process) because of the body’s response to whiplash injury in the accident. In her 2023 report, she confirms her opinion that chronic pain involves “…an adverse reaction of the nervous system and the immune system, which produces an amplified pathological pain response and a host of neuropsychiatric symptoms,” which, in this case, are inclusive of the applicant’s depression and anxiety disorders as diagnosed by Dr. Ross. While the applicant attempted to qualify Dr. Ross as a chronic pain expert at the outset of her testimony, I find that Dr. Ross’ expert duty form qualifies her only as a psychiatric expert. The applicant did not file a motion to amend this expert duty form prior to the hearing, and I was not pointed to evidence that indicates the College of Physicians and Surgeons of Ontario (“CPSO”) recognizes neurology or immunology as areas of specialization for Dr. Ross, or pain management as within her scope of practice. While I recognize that standing with CPSO is not a strict requirement when qualifying an expert witness, I find it is a persuasive factor where a party attempts to qualify an expert witness in a different area of practice or specialization than indicated on the duty form.
55Turning to Pastore, I find that Dr. Ross’ opinion is impeded by the lack of a multidisciplinary approach to determining the applicant’s impairment levels. Pastore contemplates pain as a symptom of a mental disorder, and points to the Guides’ recommendation that such cases be assessed through a multidisciplinary, multispecialty approach, in which physicians who are knowledgeable about the different body systems are involved as needed. In fact, this did not happen here. While I accept that Dr. Ross consulted publications authored by medical professionals in various fields of expertise relevant to the applicant’s condition, I am not convinced this is a substitute for clinical assessments of the applicant performed by a multi-disciplinary team of physicians who are knowledgeable in chronic pain, neurology, and immunology.
Activities of daily living (“ADL”)
56I find the applicant has not sustained a marked impairment in her ADL that is owing to a mental or behavioural disorder (i.e., her depression, anxiety, and post-traumatic stress disorder) as a result of the accident.
57The Guides describe ADL as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitations in these activities should be related to the mental disorder and the quality of the activities judged by their independence (i.e., the extent to which initiating and participating is independent of supervision or direction), appropriateness, effectiveness, and sustainability. It is necessary to assess the overall degree of restriction or combination of restrictions, not just the number of restricted activities.
58While I agree the applicant’s ADL are impaired to some degree overall, I am not convinced this is owing to a mental or behavioural disorder as required by the Guides.
59I find the applicant’s testimony largely credited her impairments in this area of functioning to physical pain and not psychological symptoms. She said that after the accident, she stopped doing all the ADL she performed prior to the accident, which she described as swimming 2-3 times per week, camping at least every other weekend, engaging in care of her children, working regularly, scrapbooking, crocheting, planning social events, and doing housework such as laundry, cooking, washing dishes, cleaning, and grocery shopping. While the applicant explained that she stopped these ADL after the accident because of pain, headaches, and vomiting spells that occurred 3-4 times per week on average, I place less weight on this testimony because the occupational therapy screening report completed at the Physiotherapy and Rehabilitation Centre on June 10, 2014—more than two years after the accident—says the applicant was independent in her personal care, and only partially unable to do homemaking and housekeeping (i.e., when bending).
60The applicant said her roommate, Ms. Jillian Mansfield, now does the grocery shopping because she cannot pick anything up and falls down if she walks more than a few minutes at a time. The applicant added that she locks herself away in her room (i.e., isolates herself in a bubble) because her physical pain keeps her there. Ms. Mosher Taillefer’s report indicates the applicant’s sleep complaints were owing to reports of constant pain, and Dr. Ross testified that poor sleep is common in cases of chronic pain after whiplash due to the brain’s reaction to whiplash trauma. In my view, this evidence speaks to ADL impairment resulting from physical pain, and perhaps neurological dysfunction, and not an accident-related mental or behavioural disorder.
61The applicant went on to say she saw her family doctor for pain, and obtained physiotherapy, massage, and acupuncture treatment, along with taking multiple varieties of pain medication each day. I find that this evidence further underscores physical pain as the primary contributor to the applicant’s ADL impairments.
62Dr. Ross’ testimony, along with the analysis in her 2023 report, also attributes the applicant’s marked impairment to physical pain symptomology and pain management issues. While Dr. Ross notes that Ms. Mansfield helps the applicant with driving tasks when the applicant is overwhelmed with anxiety symptoms arising from her post-traumatic symptom disorder, I find Dr. Ross also credits the applicant’s driving difficulties to the applicant’s inability to physically tolerate the distance being driven due to pain. Further, I place less weight on Dr. Ross’ opinion that the applicant cannot manage driving due to symptomology consistent with her post-traumatic stress disorder. This is because the testimony of Ms. Mansfield confirmed she was, in fact, the passenger and not the driver when the applicant drove to Cornwall from Ottawa, contrary to the understanding of Dr. Ross as articulated in her 2023 report. In fact, Ms. Mansfield testified she does not drive and does not have a driver’s licence. In addition, the social media post in evidence (dated September 11, 2021) confirms the applicant has driven since the accident.
63I find Dr. Ross also offered a multi-factorial attribution (i.e., chronic pain and post-traumatic stress disorder) to the applicant’s “poor” ability to handle stress and tendency to isolate herself when “easily” overwhelmed. The contribution of pain versus psychological factors is not clearly distinguished by Dr. Ross and is therefore not helpful in deciding catastrophic impairment in the context of criterion 8.
64This evidence, when taken together on balance, does not convince me that the applicant’s ADL are markedly impaired because of a mental of behavioural disorder. Rather, I find this evidence is more consistent with Dr. Chandrasena’s rating of a moderate impairment owing to a mental and behavioural disorder, with pain being a contributor to overall impairment.
Social functioning
65I find the applicant has not sustained a marked impairment in her social functioning that is owing to a mental or behavioural disorder (i.e., depression, anxiety, or post-traumatic stress disorder) as a result of the accident.
66The Guides describe social functioning as an individual’s capacity to interact appropriately and communicate effectively with other individuals (i.e., cooperatively and considerately), including the ability to initiate contact, interact, and participate in group activities. Impaired functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, and social isolation.
67In her 2023 report, Dr. Ross references post-accident deterioration in the applicant’s family relationships as evidence of her inability to manage relationship stressors. This report indicates the applicant became estranged from her two eldest children (a son and a daughter) as well as her mother. I placed little weight on the applicant’s relationship with her mother because her testimony did not speak to specific relationship stressors with her mother, or her ability to manage these stressors. Further, Dr. Ross did not provide a basis for her opinion that this relationship has worsened since her prior assessment in March 2020, and I was not otherwise pointed to evidence concerning the applicant’s relationship with her mother.
68While the applicant testified she had a phenomenal and amazing relationship with all three of her children prior to the accident, she offered little on the post-accident relationship with her two eldest children, saying only that they came to resent her because she could no longer provide for them, and that the two eldest lived with their step-father following the accident. The applicant added that she has not seen her eldest daughter in the past eight months because she resents that the applicant has not been active and social with her.
69I find the applicant’s ability to manage relationship stressors with her son in particular was compromised prior to the accident. Dr. Goodfield’s report says the applicant acknowledged her son has been a constant source of stress for her, and attributes this in part to the intervention of the Children’s Aid Society over a 14-year period up to age 18, being assaulted by her son from an early age, and her son threatening to kill her and her daughters, which resulted in the applicant permanently giving up custody of her son at age 13 and placing him in foster care.
70In my view, Dr. Goodfield’s report similarly establishes the applicant had difficulty managing relationship stressors with her ex-spouse prior to the accident. The applicant told Dr. Goodfield that she separated from her ex-spouse in 2007 because of his infidelities. The applicant testified, that after a second pre-accident separation in 2010, her marriage dissolved post-accident because her physical pain prevented her from being intimate and social.
71I am not convinced these scenarios support Dr. Ross’ opinion that the applicant has an inability to manage relationship stressors because of an accident-related mental or behavioural disorder. Rather, I find the evidence shows the applicant was unable to manage relationship stressors with her son and ex-husband prior to the accident. While I accept the applicant’s estrangement with her eldest daughter occurred post-accident, I find, on balance, that there is insufficient evidence to attribute this to an inability to cope with relationship stressors on the part of the applicant. In my view, the evidence points to the daughter’s resentment as the cause of the estrangement.
72Dr. Ross’ 2023 report goes on to say that while the applicant has the capacity to start and maintain relationships, her ability to do social activities within these relationships is markedly impaired. Dr. Ross’ 2023 report points to the applicant’s chronic pain, as well as the supportive nature of her relationships, in this context. I find, however, that the applicant has not established her chronic pain is related to a mental or behavioural disorder. Further, I am not satisfied that the applicant’s ability to participate in her relationships is markedly impaired by her dependance on others, as proposed by Dr. Ross.
73In fact, I am satisfied the applicant was capable of some, but not all useful social functioning after the accident. The respondent pointed to convincing evidence of the applicant’s ability to participate in social activities. While the applicant stopped short of saying she volunteered to help a group of “freedom convoy” activists and demonstrators, she agreed under cross-examination that she produced social media posts in support of their objectives and had “a lot” of videochats and phone calls. The applicant also acknowledged that she attended a convoy party and opened up her home to this group to make their own meals.
74The applicant also started a new relationship with a member of this group and sustained her connection with this person for 18 months, joining him on several road trips in his transport truck. The applicant’s social media account indicates she is always at her best when she is in “the rig;” that it is the one place she is happiest; and that being on her way to “the rig” could not make her anymore happier. I find this evidence is at odds with Dr. Ross’ opinion that the applicant’s participation is social activities is significantly impeded.
75While the applicant testified her participation in these social activities was limited, I find she attributed this to her physical pain and not because of psychological symptoms. This is corroborated in Dr. Ross’ 2023 report, where she attributes the applicant’s relationship limitations to chronic pain.
76I find this evidence, when taken together on balance, is consistent with Dr. Chandrasena’s opinion, which is that the applicant’s social limitations are, in part, related to her pain and support a moderate level of impairment.
Concentration, persistence, and pace (“CPP”)
77I find the applicant has not sustained a marked impairment in her CPP that is owing to a mental or behavioural disorder as a result of the accident.
78The Guides describe CPP as the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings. Deficiencies in CPP are best noted from previous work attempts or from observations in work-like settings.
79In my view, Dr. Ross does not attribute the applicant’s marked impairment rating in CPP to a mental or behavioural disorder. Rather, she reports the applicant’s cognitive functioning is consistent with a moderate impairment in concentration. While Dr. Ross testified that the applicant’s persistence and pace is worse (i.e., markedly impaired) than her concentration, her report attributes the applicant’s inability to sustain the pace of her ADL or persist with physical activities to chronic pain, which I find is not a mental or behavioural disorder.
80I am further satisfied that Dr. Ross’ opinion is consistent with the applicant’s testimony, which credited—in very large part—her difficulties with ADL and physical activities to her pain and not to difficulties with concentration, persistence, or pace owing to an accident-related mental or behavioural disorder.
81I find this evidence, when taken together on balance, falls short of establishing that the applicant’s CPP difficulties are markedly impaired because of a mental or behavioural disorder that resulted from the accident.
Deterioration or decompensation in work or work like settings (“adaptation”)
82I find the applicant has not sustained a marked impairment in her adaptation that is owing to a mental or behavioural disorder as a result of the accident.
83The Guides say adaptation refers to repeated failures to adapt to stressful circumstances, such as those involving attendance, making decisions, scheduling, and interactions with coworkers and supervisors. In the face of such circumstances, the individual may withdraw from the situation or experience exacerbation of mental health symptoms.
84I place less weight on the opinion of Dr. Ross pertaining to adaptation. Dr. Ross’ 2023 report attributes the applicant’s extreme impairment in adaptation to a combination of her psychiatric disorders (i.e., depression, anxiety, and post-traumatic stress disorder) and her chronic pain due to central sensitization mechanisms (i.e., altered brain pathophysiology). Dr. Ross characterizes the applicant’s depression and anxiety diagnoses as neuropsychiatric conditions arising from the applicant’s altered brain pathophysiology.
85However, I find that neither chronic pain, nor neurological function, constitute a mental or behavioural disorder per the Guides. Dr. Ross’ expert duty form does not present her as a specialist in neurology or pain management, and the respondent’s cross-examination of Dr. Ross confirmed she does not specialize in neuropsychology. I therefore was not persuaded by Dr. Ross’ evidence pertaining to the applicant’s depression and anxiety.
86In my view, the weight of Dr. Ross’ findings is further diminished because she does not clearly distinguish the applicant’s pain from her psychological symptomology when analyzing the applicant’s functional impairment in adaptation. While I accept that the 2021 and 2017 reports of Ms. Mosher Taillefer and Dr. Goodfield, respectively, speak to the applicant’s low mood—and Dr. Goodfield to low energy and cognitive difficulties as well—in the context of the applicant’s work functioning, I find they, like Dr. Ross, also attribute her adaptation difficulties to pain. Dr. Ross relies on these findings to form her opinion that it is a combination of factors (i.e., pain, depression, and anxiety) that lead to extreme impairment, and not specifically the mental and behavioural disorder components as required by the Guides. As such, I put less weight here because I am not convinced that the applicant has shown that the mental and behavioural components of her impairment, in and of themselves, rise to the level of extreme or even marked impairment.
87I find the applicant’s post-traumatic stress disorder is not, in and of itself, sufficient to constitute extreme or marked impairment. While I accept the applicant has nightmares, I was not pointed to evidence that shows this contributes to a failure to adapt to stressful circumstances, causes her to withdraw from situations, or exacerbates her mental health symptoms as required by the Guides. Further, given the applicant’s driving history since the accident—which was corroborated by Ms. Mansfield—I place less weight on her claims that she is petrified of driving. Rather, I find the evidence supports, on balance, that the applicant’s driving is limited largely by her physical tolerances and not by a repeated failure to adapt to stressful circumstances.
88Dr. Ross’s 2023 report goes on to say the applicant’s cognitive impairments would “probably preclude” many types of work that are within the applicant’s pre-accident academic abilities. But I am not satisfied that this is evidence of extreme impairment because I find Dr. Ross qualified the applicant’s cognitive functioning as only moderately impaired when she evaluated the applicant’s CPP.
89While I accept multiple medical assessors have determined the applicant cannot work—which is corroborated by the testimony of the applicant, Ms. Mansfield, and the respondent’s evidence—I am not satisfied this impairment rises to the catastrophic threshold because of mental or behavioural disorders that resulted from the accident. Dr. Ross points to the applicant’s withdrawal to her “bubble” as evidence of decompensation, but both Dr. Ross and the applicant attribute this behaviour to pain. I placed less weight on Ms. Mansfield’s observations of the applicant’s angry outbursts as an example of decompensation because I was pointed to little evidence of this symptomology in the medical evidence.
90Further, as pointed out in the applicant’s closing submissions, she reported to Dr. Chandrasena that she would be working if not for her pain. Dr. Ross’ 2023 report further explains there is no conceivable type of work the applicant can do because she cannot physically tolerate movement or sustain postures without experiencing “pain flares” and “after pains.” And as mentioned earlier, the assessments of both Ms. Mosher Taillefer and Dr. Goodfield corroborate pain as a factor that precludes the applicant from working. In my view, this evidence points to physical pain as the reason for the applicant’s adaptability challenges and not her psychological condition.
91In fact, speaking specifically to work settings, there are multiple references in evidence to physical injuries causing lost work time both before and after the accident. On balance, I am satisfied they reinforce that pain and physical impairment is the main reason for the applicant’s adaptation difficulties as opposed to a mental or behavioral disorder as required by the Schedule under Criterion 8:
i. At the time of the accident on May 3, 2012, Dr. Dufresne’s records indicate the applicant was recovering from an ankle injury that had intermittently kept her on either modified light duties or off work since March 14, 2012 (i.e., before the accident). There is a corresponding medical certificate for EI sickness benefits (dated May 2, 2012) that confirms the applicant was off work since March 14, 2012, for an indeterminable period due to a severe left ankle strain.
ii. Dr. Francois Constant (family physician) made an entry on December 3, 2012, that says the applicant was injured at work and is unable to perform cleaning jobs. Dr. Constant’s clinical notes and records also reference lumbar strain in relation to the applicant being off work from July 29, 2013, to August 12, 2013, and then again from August 13, 2013, until August 26, 2013.
iii. Dr. Dufresne provided an off-work note from August 20, 2013, until September 7, 2013, and the corresponding clinical record speaks to neck and back pain. Dr. Dufresne provided another off-work note for the period of September 5, 2013, to September 30, 2013, and the corresponding clinical record attributes lumbar sprain to a subsequent off-work note for the period of September 26, 2013, to November 3, 2013.
iv. There are more off-work notes and clinical record entries from Dr. Dufresne that cover the following periods, none of which speak to psychological symptomology:
(i) November 5, 2013, to December 17, 2013;
(ii) December 17, 2013, to February 23, 2014;
(iii) February 20, 2014, to April 20, 2014;
(iv) April 14, 2014, to May 14, 2014; and
(v) October 1, 2015, to March 1, 2016.
92These off-work notes coincide with more accidents and a series of slip-and-fall incidents experienced by the applicant. Hospital records show a complaint of traumatic spine and back injury on January 15, 2014, after the applicant fell on steps. A month later on February 24, 2014, the hospital reports the applicant complaining of neck trauma after again slipping on stairs. During cross-examination, the applicant agreed she was involved in an accident that required her to be extricated from the vehicle in April 2014. While the applicant did not recall being off work because of this accident, Dr. Dufresne’s records indicate she was off-work for a month after the crash, and the application for accident benefits (the “OCF-1”) for this incident specifies physical injuries.
93I find the medical evidence shows the applicant experienced at least one more accident in January 2015 that caused complaints of neck swelling and pain. The applicant subsequently fell down nine-to-10 stairs in July 2017, and the hospital record of this incident describes back, head, and neck pain as well as left arm numbness.
94This evidence, when taken together on balance, does not convince me the applicant’s adaptation is extremely impaired because of a mental of behavioural disorder. I was pointed to little evidence that convinces me the applicant repeatedly failed to adapt to stressful situations or decompensated for reasons other than physical pain.
95For completeness, since I have found—based on the above reasons—that the applicant has not proven at least a marked impairment in any of the four areas of function, I am not satisfied that she has an extreme impairment either.
96In conclusion, the applicant has not satisfied her onus to prove that she sustained a catastrophic impairment in any of the four areas of functioning as a result of the accident.
Award
97I find the respondent is not liable to pay an award.
98The applicant seeks an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
99The applicant submits that the respondent failed to re-evaluate her catastrophic impairment claim upon receiving more than 1,000 pages of new information that included employment records, two reports from Dr. Ross, and an authority concerning chronic pain when assessing Criterion 8. The applicant also submits the respondent acted unreasonably by rejecting the applicant’s proposal to schedule new IEs and forcing a hearing to resolve this matter. The applicant reasons that this caused a four-year delay on her claim, during which time the respondent made improper and baseless denials instead of providing her with the “catastrophic benefits” she purchased through her automobile insurance policy.
100The respondent did not address the applicant’s award claim in its closing submissions.
101In my view, an award applies only to an unreasonably withheld or delayed benefit, and catastrophic impairment is not a benefit as defined by the Schedule. Since no benefits have been withheld or delayed, no award is payable.
ORDER
102The applicant has not sustained a catastrophic impairment. The respondent is not liable to pay an award. The applicant shall pay the respondent costs in the amount of $250.00. The application is dismissed.
Released: May 3, 2024
Michael Beauchesne
Adjudicator
