Citation: Dorcil vs. Wawanesa Insurance, 2024 ONLAT 21-011659/AABS

Licence Appeal Tribunal File Number: 21-011659/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:

Sonia Dorcil

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATORS:

Amar Mohammed Jeremy A. Roberts

APPEARANCES:

For the Applicant:

Sonia Dorcil, Applicant Michael Brill, Counsel

For the Respondent:

Elizabeth Scott, Counsel

HEARD: by Videoconference:

January 2, 2024 to January 10, 2024

OVERVIEW

1Sonia Dorcil, the applicant, was involved in an automobile accident on May 24, 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, Wawanesa Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

The applicant is allowed to rely on a late-filed addendum report

2Prior to the start of the hearing the respondent filed a motion to exclude two pieces of evidence the applicant was seeking to admit because they were filed in non-compliance of the deadline for document exchange. The two documents were (A) the June 2023 report of Dr. Getahun; and (B) the September 2023 report of Dr. Gouws. The respondent argued that admission of these documents would prejudice the respondent because receiving them outside the case conference report and order deadlines prevented it from having adequate time to review and respond to any new information.

3The applicant withdrew her request to admit the September 2023 report as she would not be relying on it as evidence. She argued that the June 2023 report should be admitted because due to the delayed start of the hearing as a result of an adjournment, the respondent had adequate time to review the June 2023 report and there would be little prejudice to its admission.

4We find that that the applicant can rely on the June 2023 report of Dr. Getahun. While it was received outside the production deadlines, the respondent has been in possession of the report for six months, giving it ample time to review the material. We invited the respondent to make submissions on what, if any, weight should be given to this report in its closing submissions to be considered in our final analysis.

SUBSTANTIVE ISSUES

5The issues in dispute are:

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

ii. Is the applicant entitled to $4,341.91 for psychological services, proposed by All Health Medical Centre in a plan dated February 10, 2020?

iii. Is the applicant entitled to $6,010.00 for a neuropsychology assessment, proposed by All Health Medical Centre in a plan dated February 7, 2020?

iv. Is the applicant entitled to $13,386.90 for a multidisciplinary chronic pain program proposed in a plan dated October 8, 2019?

v. Is the applicant entitled to $1,560.00 for transportation expenses, submitted on a claim form (OCF-6) dated October 8, 2019?

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

RESULT

6For reasons to follow, we conclude:

i. The applicant has not sustained a catastrophic impairment as defined by the Schedule.

ii. The applicant is not entitled to $4,341.91 for psychological services, proposed by All Health Medical Centre in a plan dated February 10, 2020.

iii. The applicant is not entitled to $6,010.00 for a neuropsychology assessment, proposed by All Health Medical Centre in a plan dated February 7, 2020.

iv. The applicant is entitled to $13,386.90 for a multidisciplinary chronic pain program proposed in a plan dated October 8, 2019.

v. The applicant is not entitled to $1,560.00 for transportation expenses, submitted on a claim form (OCF-6) dated October 8, 2019.

vi. The applicant is entitled to interest on any overdue payment of benefits.

PROCEDURAL ISSUES

Interpretation concerns

7During the examination in chief of the applicant, the applicant’s representative raised concerns regarding the quality of the Creole language interpretation being provided by our interpreter. Specifically, the applicant’s representative was sharing his screen referring to documents with technical and medical terms. The interpreter noted that she had recently broken her glasses and was unable to accurately read the information on screen without slowing down. Applicant’s counsel was concerned that this was affecting the quality of the examination in chief. The respondent argued that the interpreter should not be translating documents in any case and instead should be interpreting the questions as they are formulated verbally.

8Upon considering the issue, we offered the opportunity for the interpreter to print the material on screen to better read it, which the interpreter said could be helpful. At this time however, the applicant’s representative decided to move on without exercising this option and instead adjusted the pace and format of his questions.

9On the second day of the hearing, prior to the cross-examination, the applicant’s representative advised that he had a concern about the difficulty faced with interpretation the day prior. We asked both parties about the quality of interpretation and both agreed that the latter portion of the direct examination went smoothly and there were no concerns. We asked counsel for the applicant if he was seeking any relief from the Tribunal to which he responded in the negative. We noted that the same interpreter was present on this day, this time with her glasses. Since neither party was opposed to continuing with this interpreter, we continued the cross-examination of the applicant and invited either party to immediately raise any concerns they had when they arise. We also advised the interpreter to raise any concerns she may have to us immediately if one was to arise and she interpreted the same direction to the applicant. No concerns were raised.

Introduction of a new study into evidence is denied

10During cross-examination of Dr. Mackay the applicant sought to enter a new study into evidence not previously disclosed. The applicant argued that she had just discovered the study the day before and that it was relevant to the issues in dispute. The respondent objected on the basis that it would be prejudiced by allowing new evidence, not previously disclosed or discussed, this late in the hearing. After considering submissions from both parties, we decided to deny the applicant’s request to introduce and rely on the proposed new evidence at this late stage of the hearing. Since this evidence was available and could have been produced in advance, it would have been most appropriate to deal with late filing of evidence as a preliminary issue either before or at the beginning of the hearing.

(Re)-introduction of September 2023 report is denied

11During the exam-in-chief of Dr. Syed, the applicant changed her mind on withdrawing her request to admit the September 2023 report of Dr. Gouws, arguing that she now needed to rely on it as evidence given that other witnesses were now addressing the issue of “grip strength” to which this report responded. The respondent objected, arguing that the applicant had already withdrawn her request to admit this late evidence. Further, that allowing this mid-hearing would adversely prejudice the respondent. We considered submissions from both parties and decided to not allow the applicant to rely on this evidence. Per our previous decision on admitting a new study into evidence mid-hearing, the appropriate time to make a request to introduce late evidence was as a preliminary issue, which the applicant had withdrawn. As such, we did not allow the introduction of this report into evidence.

Introduction of disciplinary evidence against an expert witness is denied

12During cross-examination of an expert witness, the applicant asked the witness to confirm their professional disciplinary history. The applicant argued that she had discovered this information the night before and felt it raised concerns regarding the witness’ credibility. The respondent objected on the basis that this was not relevant and that there is a procedure to follow if the applicant was seeking to challenge the expert witness. After considering submissions from both parties, we decided not to allow questions in relation to the expert’s alleged professional discipline. As this appropriately falls into the category of a challenge by the applicant to the expert’s “qualifications, report or witness statement” it required prior notice as found in Rule 10.4 of the Common Rules of Practice and Procedure that apply to this hearing.

ANALYSIS

Background

13The applicant sought to be deemed catastrophically impaired under criterion 7 or 8. The applicant has not exhausted the $65,000.00 non-catastrophic limits, meaning that the treatment plans in dispute require adjudication based on being reasonable and necessary.

The applicant is not catastrophically impaired under criterion 7

14We find that the applicant did not suffer from a catastrophic impairment as a result of the accident under criterion 7. We do not accept the impairment ratings by the applicant’s assessors as being accurate because we do not find that the applicant has met her burden of proving that she suffers from rateable impairments under upper extremity and sleep impairment.

15To be deemed catastrophically impaired, the applicant must prove on a balance of probabilities that she meets the test under section 3.1(1)7 of the Schedule which is commonly referred to as criterion 7. To be successful, the applicant must prove that as a result of the accident she has suffered from a mental or behavioural impairment combined with a physical impairment which results in whole person impairment (“WPI”) of 55 percent or more.

16The applicant was assessed by two separate teams of s. 25 assessors and s. 44 assessors. First, in September 2022, a catastrophic determination executive summary was prepared by Dr. Syed. Then, in June 2023, a subsequent executive summary was prepared by Dr. Getahun. Meanwhile, the s. 44 assessor, Dr. Oshidari, prepared one report in August 2021 and presented two scenarios. Under Scenario 1, he found that the applicant’s physical impairments were not rateable as a result of her reporting and presentation being inconsistent and non-organic. This resulted in a rating of 0% for physical impairments. He then presents Scenario 2, in which he gives the applicant the benefit of the doubt and provides ratings based on the nature of the accident and objective findings by other doctors.

17The following chart summarizes the various scenarios and their total WPI ratings:

Impairment	Applicant Syed	Applicant Getahun	Respondent Oshidari Scenario 1	Respondent Oshidari Scenario 2
Upper Extremity	12%
Lower Extremity	7%	7%		2%
Lumbosacral Spine	5%	5%		5%
Cervicothoracic Spine	5%	5%		5%
Medication	3%	3%		3%
Sleep Impairment	9%	9%
Dizziness	9%	9%
Sexual Impairment	9%	9%
Headaches	10%	10%
Mental & Behavioural	BPRS 20% GAF 15% PIRS 20% MEAN 20%	BPRS 5% GAF 10% PIRS 10% MEAN 10%
COMBINED TOTALS	62%	56%	10%	24%

A. 12 % for upper extremity impairment

18The applicant argued that we should accept a 12% rating for upper extremity impairment because of a grip test administered by Dr. Syed on her non-dominant left hand. Dr. Syed used this test to confirm a finding of neurologist Dr. Gomez-Vargas who noted that the applicant had radiating neck pain down to both shoulders.

19The respondent argued that this was not rateable, as even the applicant’s own assessor, Dr. Getahun, also disagreed with Dr. Syed’s rating. In his second executive summary, Dr. Getahun did not provide a rating for upper extremity impairment and during testimony he suggested that a grip strength test was not a reliable measurement for WPI for the applicant.

20We find that the proposed 12% rating for upper extremity impairments is not reasonable given that the grip test and subsequent rating applied was not appropriate under the circumstances. The applicant’s own assessors were in disagreement about the applicability of an upper extremity rating on the basis of the applicant’s left hand grip test. The medical records of her family doctor show she complained of right shoulder pain on January 18, 2019 and not in her left upper extremity. X-Ray and Ultrasound imaging were completed on the right shoulder. The applicant then reported on May 8, 2019 “shoulder is better now, issue started after MVA”. The same note provides that the applicant was attending physiotherapy but had stopped. Given the lack of supportive medical documentation and the inconsistency in the applicant’s own assessors, we find that this rating is without merit.

B. 9% ratings for sleep impairment

21The applicant argued that we should accept the 9% rating provided by both Drs. Syed and Getahun for sleep impairment because, by her own report and her reporting to several doctors, she is experiencing difficulties sleeping with multiple nightly awakenings which she attributes to accident-related pain, stress and overthinking.

22The respondent argued that we should disregard the 9% rating provided for sleep because; (1) it is excessive; (2) lack of evidence suggesting this impairment was accident related. Dr. Syed testified, for example, that while he could assign a rating of anywhere from 1% to 9% for sleep disorders, it was his general practice to provide the highest rating (i.e. 9%). He gave no reason for this arbitrary decision. He provided this 9% sleep rating despite a lack of complaints that would tie reported sleep issues to the subject accident.

23We find that the 9% rating provided by Drs. Syed and Getahun for sleep disorders is not appropriate and we find that no rating is merited for this impairment. The applicant relies on Dr. Parekh’s report, based on his assessment of the applicant on September 9, 2022, almost four years after the accident. He suggests that these issues have been present since the accident. However, the applicant’s first complaint to her family doctors regarding sleep was on November 25, 2020, two and a half years after the accident. This makes her reporting to Dr. Parekh inconsistent with her reporting to her family doctor. It is unclear based on this inconsistency how Dr. Parekh establishes a causal link between the accident and her sleep issues, especially given the presence of intervening events (several falls). We find that there is a lack of causal evidence linking this impairment to the accident and certainly not enough evidence to merit an arbitrarily high rating on the scale.

24Without the benefit of a 12% rating for the upper extremity and without the 9% rating for sleep impairment, the applicant would only reach a total WPI of 51%. This means that she does not meet the test of being catastrophically impaired under criterion 7.

25We find that the applicant is not catastrophically impaired under criterion 7.

The applicant is not catastrophically impaired under criterion 8

26We find that the applicant did not suffer from a catastrophic impairment as a result of the accident under criterion 8 because we do not accept the marked impairment rating under the area of “Adaptation”.

27To be deemed catastrophically impaired, the applicant must prove on a balance of probabilities that she meets the definition under section 3.1(1)8 of the Schedule which is commonly referred to as criterion 8. To be successful, the applicant must prove that she suffers from a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder.

28The applicant submits that she suffers from a class 4 marked impairment in three areas of functioning while the respondent submits that the applicant does not suffer from class 4 impairments in any area of functioning. Their respective positions are illustrated below for reference. (Class 1 and 5 are omitted as they are not relevant)

Area or aspect of functioning	Class 2: Mild impairment	Class 3: Moderate impairment	Class 4: Marked impairment
Activities of daily living	Respondent		Applicant
Social functioning	Respondent		Applicant
Concentration, persistence, and pace	Respondent		Applicant
Adaptation - Deterioration or decompensation in work or work-like settings	Respondent		Applicant

29The applicant argued that we should accept the marked impairment rating in the sphere of “Adaptation” based on the findings of psychiatrist Dr. Parekh, who diagnosed the applicant with an adjustment disorder, somatic symptom disorder, and post-traumatic stress disorder (“PTSD”) which have significantly impeded her functioning in adaptation, deterioration or decompensation in work or work like settings. Dr. Parekh opined that the applicant would be unable to return to work as a cleaner because her “moderate stress intolerance” and “poor emotional regulation” would likely result in “workplace conflict, amotivation and/or avoidance/withdrawal.” This opinion was supported by the applicant’s and her daughter’s testimonies, in which both commented on her inability to engage in household chores, and by the occupational therapist (“OT”) Mr. Madan, who testified that based on his assessment of the applicant she posed a danger to herself in certain scenarios (e.g. responding to a fire-alarm, monitoring the stove).

30The respondent argued that the applicant’s complaints are physical rather than psychological and the applicant does not meet the test under criterion 8 as a result. It argued that while the applicant may be limited in her ability to adapt to work or work like settings, this is because of physical complaints, like pain, and not because of psychological issues. Moreover, it argued that the applicant’s work history is not clearly defined, making it difficult to clearly compare her functioning before and after the accident.

31In considering the evidence, we agree with the respondent and find that the applicant has not satisfied her onus in demonstrating that she suffered a marked impairment in useful functioning in adaptation as a result of psychological diagnosis. Firstly, we find that the evidence of the applicant, her daughter, and the OT are not helpful because none of them differentiate the functional impairments brought on by physical impairment versus psychological. Secondly, the evidence of Dr. Parekh regarding the applicant’s psychological diagnoses is also questionable given that he did not perform objective tests to verify that the information being reported by the applicant was accurate. In this regard, we prefer the findings of neuropsychologist Dr. West, who conducted objective tests and validity tests and did not find a significant psychological impairment. Given the applicant’s inconsistencies in describing her pre-accident employment and her functionality, we find that Dr. West’s inclusion of validity measures enhances the reliability of his findings in contrast to Dr. Parekh’s. At most, we find that the applicant has likely sustained a class 2 mild impairment rating in adaptation.

32Without a marked impairment in the area of adaptation, the applicant cannot meet the minimum of three marked impairments and therefore we find that the applicant has not met the requirements to be deemed catastrophically impaired under criterion 8.

Psychological services are not reasonable and necessary

33We find that the applicant is not entitled to $4,341.91 for psychological services, proposed by All Health Medical Centre in a plan dated February 10, 2020 as a result of not meeting her onus in proving that the proposed plan is reasonable and necessary.

34The issue in dispute is a medical and rehabilitation benefit. Sections 14 and 15 of the Schedule state than an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident. Section 16(1) of the Schedule provides that the insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures describes in subsection (3) for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society or the labour market.

35The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary and that the impairments are accident related. In order to do so, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

36The applicant did not make submissions about this treatment plan.

37We find that the applicant failed to meet her onus in demonstrating that the proposed treatment plan was reasonable and necessary because she did not make submissions on this regard and the medical history provided to the family doctor does not support the necessity of this treatment plan.

Neuropsychology assessment is not reasonable and necessary

38We find that the applicant is not entitled to $6,010.00 for a neuropsychology assessment, proposed by All Health Medical Centre in a plan dated February 7, 2020 as a result of not meeting her onus.

39The test for this treatment plan is the same as the above.

40The applicant did not make submissions about this treatment plan.

41We find that the applicant failed to meet her onus in demonstrating that the proposed treatment plan was reasonable and necessary because she did not make submissions in this regard.

Chronic pain program is reasonable and necessary

42We find that the applicant is entitled to $13,386.90 for a multidisciplinary chronic pain program proposed in a plan dated October 8, 2019 because the proposed treatment is reasonable and necessary to address her pain-related complaints.

43The test for this treatment plan is the same as the above.

44The applicant argued that since the accident her quality of life has diminished due to pain. Her medical records demonstrate that she continues to take medication for the pain and that the recommended treatment plan presents an alternative method to address this issue. The proposed treatment would involve education, counselling, physiotherapy, and other treatment. She argues that the proposed treatment is reasonable and that she has already exhausted the only alternative (medication).

45The respondent argued that the applicant’s chronic pain is not supported by objective findings. It is supported in this argument by the findings of Drs. MacKay and Oshidari.

46We agree with the applicant and find that the proposed treatment plan is reasonable and necessary. The applicant’s medical history shows that she takes medication for pain control. Dr. Gomez-Vargas testified that these medications could cause side-effects and that other interventions may be beneficial. We agree with this reasoning and find that the proposed treatment plan is reasonable and necessary to address the applicant’s pain. We find that the applicant’s evidence was credible in establishing she faces physical limitations that affect multiple aspects of her daily life. This includes her activities of daily living, social functioning, concentration and adaptation. To the extent that these areas of her life are negatively affected, we agree with the applicant that this treatment plan will improve her life and give her the tools to sustain the improvement past the treatment period.

Transportation expenses are not authorized, reasonable and necessary

47We find that the applicant is not entitled to $1,560.00 for transportation expenses, submitted on a claim form (OCF-6) dated October 8, 2019, because the applicant did not meet her onus.

48The Schedule requires payment for authorized transportation expenses if they are found to be reasonable and necessary. Neither party made any submissions in relation to these transportation expenses.

49We find that the applicant failed to meet her onus in demonstrating that these expenses were reasonable and necessary because she did not make submissions in this regard.

Interest

50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is owed interest on the proposed chronic pain program.

ORDER

51For the above-noted reasons, we order:

i. The applicant has not sustained a catastrophic impairment as defined by the Schedule.

ii. The applicant is not entitled to $4,341.91 for psychological services, proposed by All Health Medical Centre in a plan dated February 10, 2020.

iii. The applicant is not entitled to $6,010.00 for a neuropsychology assessment, proposed by All Health Medical Centre in a plan dated February 7, 2020.

iv. The applicant is entitled to $13,386.90 for a multidisciplinary chronic pain program proposed in a plan dated October 8, 2019.

v. The applicant is not entitled to $1,560.00 for transportation expenses, submitted on a claim form (OCF-6) dated October 8, 2019.

vi. The applicant is entitled to interest on the proposed chronic pain treatment plan.