Albanese v. BelairDirect
Licence Appeal Tribunal File Number: 22-011999/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:
Michael Albanese
Applicant
and
BelairDirect
Respondent
DECISION
ADJUDICATORS:
John Mazzilli Taivi Lobu1
APPEARANCES:
For the Applicant:
Michael Albanese, Applicant
Lane Foster, Counsel
Brittney Steward, Paralegal
For the Respondent:
Lori J. Sprott, Counsel
Nadia Peles, Counsel
Court Reporter:
Siriana Taylor
Heard by Videoconference:
February 26–March 1st, and March 4–5, 2024
OVERVIEW
1Michael Albanese (the “applicant”) was involved in an automobile accident on July 31, 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 BelairDirect (the “respondent,”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant’s position is that he is catastrophically impaired as a direct result of the motor vehicle accident. The respondent’s positions are that the applicant is not catastrophically impaired as a direct result of the accident and that the accident is not a necessary cause of the applicant’s catastrophic impairments, if any.
ISSUES
3The issue in dispute is:
i. Has the applicant sustained a catastrophic impairment as defined by section 3.1(1)8 of the Schedule (“Criterion 8”)?
RESULT
4I find the applicant has not demonstrated that he is catastrophically impaired as defined by the Schedule. The application is dismissed.
ANALYSIS
Has the applicant sustained a catastrophic impairment?
5The applicant submits that he is catastrophically impaired under Criterion 8.
6To determine whether an insured person is catastrophically impaired under Criterion 8, the Tribunal considers whether the accident caused a mental or behavioral disorder, the impact of the disorder to the person’s life, and the level of impairment as described in section 3.1(1)8 of the Schedule. The applicant bears the onus to prove on a balance of probabilities that he is catastrophically impaired. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical test (see: Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571).
7The applicant submits that he has a marked impairment in all four areas of function caused by the mental disorders that he sustained in the motor vehicle accident. The applicant relies on testimony from the applicant, his mother Brenda Wilson, the testimony of Dr. Gavett-Liu (psychiatrist) and her psychiatric report, Dr. Kiraly (psychiatrist), Dr. Miller (psychologist), and the occupational therapist Kirsten Foster. The applicant does not assert that he has an extreme impairment in any of the four areas of function.
8In contrast, the respondent submits that the applicant does not have a marked impairment in any of the four areas of function directly attributed to the accident and therefore does not meet the test under Criterion 8. The respondent relies on Dr. Sivasubramanian’s psychiatric report and testimony along with the occupational therapy reports by Priya Nair.
Mental or Behavioral Disorder
9Dr. Gavett-Liu, psychiatrist, completed a catastrophic impairment determination report dated February 22, 2022, for the applicant. She diagnosed the applicant with post-traumatic stress disorder, major depressive episode and substance use disorder with opioid use disorder in full sustained remission (more than 1 year clean), and cocaine use disorder in early remission (last use four months ago, but without more problematic use for more than one year).
10Dr. Sivasubramanian, psychiatrist, assessed the applicant for an insurer’s examination. He is in general agreement with Dr. Gavett-Liu’s diagnostic impressions set out in her report dated February 22, 2022; however, he also notes that on the PIRS rating scale, Dr. Gavett-Liu finds moderate impairment in four of six domains. He also notes that the applicant’s substance use disorder is in early remission and that his major depressive disorder appears to have been only in part due to the accident and as such he disagrees with Dr. Gavett-Liu’s impairment ratings.
11The reports prepared by Dr. Gavett-Liu, Dr. Sivasubramanian and their testimony is sufficient for me to accept that the applicant sustained the mental disorders of post-traumatic stress disorder, major depressive episode and substance use disorder because of the accident.
Assessment of Impairment Levels
12Next, criterion 8 requires evidence of the insured person’s impairment levels due to a mental or behavioural disorder. 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 under Criterion 8, 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 4th edition of 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) |
Activities of Daily Living
13For this domain, the AMA Guides specify what needs to be considered as follows:
Activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities…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 or 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.
14There is a clear distinction between a Class 3 moderate and a Class 4 marked impairment. Moderate impairments are compatible with some useful functioning. Marked impairments significantly impede useful functioning.
15In my view, the evidence shows that the applicant’s accident-related psychological disorders have resulted in a moderate impairment regarding the activities of daily living. This is because the evidence shows his psychological impairments are compatible with some useful functioning.
16The applicant testified that his lack of motivation compromises his personal hygiene. He testified that he is independent with his self care. He brushes his teeth daily, showers and put puts on new clothes two or three times a week. His self-reported care-initiated tasks are consistent with the reports of Dr. Gavett-Liu and the occupational therapy report by Priya Nair. He reports that he may forget to take his medication; however, he relies on a virtual service called Invisicare that reminds him by text message the appropriate times to take his medication and finds it helpful. I find that although he may lack motivation when it comes to his personal hygiene, he is in fact able to complete these tasks on his own, which in my view is consistent with a class 3 moderate impairment and not a class 4 marked impairment.
17The applicant testified that he used to make many detailed meals from recipes passed down to him from his grandparents, clean his own house, make his bed and now is no longer able to do any of those things. He survives on fast food, prepared meals from his mother that he must only warm up and simple meals that he can make on his own. He used to be independent in cleaning his own house and doing his own laundry, however now his mother does all those things for him. Although the applicant can do these things it is not without prompting. I accept Priya Nair’s (OT) assessment of the applicant’s housekeeping activity that overall, he displayed decreased motivation, hesitation to initiate tasks and fear of aggravation of his symptoms when asked to engage in housekeeping chores. His ongoing issues with back pain, decreased physical tolerances and fatigue impacted his motivation to participate in assigned tasks. Lack of motivation has decreased his functional ability, but in my view, this is not indicative of a significant impediment of useful function.
18The applicant and his mother both testified that he played a variety of sports in high school such as hockey and lacrosse and that he was active. He no longer can play those sports; however, I find that the accident was not the cause of his removal from these sports as he testified that he played these sports in high school and had not played them in a very long time before the accident. This to me is not indicative of a class 4 marked level of impairment as the evidence shows that he has not engaged in these activities since high school and there is no evidence that he has even tried to engage in any of these activities since the accident, and therefore no evidence that his accident-related impairments impacted this activity of daily living.
19The applicant testified that he enjoyed working on cars and renovating homes to flip them and make money. He maintains that he can no longer do these things due to his psychological and physical impairments. It is clear to me that the applicant was a saver and hard worker in his younger years and that he was on the path of being very successful. Unfortunately, his current problems appear to have started prior to the accident with the purchase of his last home and break up with Jordan (his former partner and the mother of his son), his daily use of cannabis since grade 9 and his social use of cocaine. This coupled with the loss of his inheritance from his father which resulted from his investments in crypto currency is likely a factor in the applicant’s current financial position. Although I do believe that the applicant may have difficulty in fixing up cars and homes due to his physical and psychological impairments, there is no evidence presented that he did in fact try to do these things. The overwhelming evidence that I was pointed to is that his financial stressors would be a barrier to purchasing cars and homes for the purposes of renovating, retrofitting, and reselling. As such I do not accept that the applicant has a class 4 marked impairment that significantly impedes his useful functioning because of the accident.
20The applicant complains of poor sleep patterns and sleeping in excess. He stays up late often and falls asleep watching television and will nap during the day. He has taken an interest in crypto currency and sets alarms on his phone to notify him of a trading opportunity depending on charts and patterns that he feels would make a successful trading opportunity. The applicant has been a daily user of cannabis since grade 9 and relies on THC oil to help his sleep; however, he reports feeling groggy the next day if he takes too much. The clinical notes and records of his family doctor dated March 16, 2018, approximately 4 months before the accident, show that he did have poor sleep and he wakes himself up several times in the middle of the night and wonders if he has sleep apnea just like his father, and he was subsequently referred for a sleep study. It is not clear to me if the applicant did attend the specialist appointment or what the recommendations were; however, as confirmed by Dr. Sivasubramanian, sleep apnea is a physical condition and not a mental condition, and as such I find that the applicant does have a class 3 moderate impairment level that is compatible with some but not all useful functioning.
21The applicant testified that he gets white knuckled when driving; however, he does continue to drive and experiences anxiety when driving and more so when he is a passenger. In September of 2023, the applicant traveled to Florida from Kitchener airport because it was a smaller airport and would be easier to get around. It is unknown to me which airport in Florida he traveled to and from. While in Florida for approximately three months, he stayed with some family, and he did not rely on Invisicare for the entire time while in Florida to remind him to take his medication. None of the assessors were aware of his independent international travel and the duration of the trip at the time of their assessments. In my view, the applicant has overstated his level of anxiety regarding travelling, whether it be the driving of a car or travelling by airplane to an international destination. This is not evidence that would support a class 4 marked impairment since he still demonstrates some useful functioning.
22I find the applicant can initiate and complete some self care, communicate efficiently and effective, travel internationally and locally as a driver of his vehicle, and therefore the applicant has failed to demonstrate that he has a class 4 or class 5 impairment in activities of daily living.
Social Functioning
23According to the AMA Guides, the factors to consider under this domain are:
An individual’s 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.
24Dr. Gavett-Liu found that the applicant has a class 4 marked impairment under this domain as, according to Dr. Gavett-Liu, there was evidence of impairment in affect regulation and communication that would meaningfully affect his capacity to initiate and maintain a variety of social relationships.
25I do not accept Dr. Gavett-Liu’s assessment. The applicant’s own testimony and the evidence does not suggest or point to the applicant having a class 4 impairment. There is no evidence that he does not have the ability to get along with others such as family members, friends, neighbours, or store clerks.
26The applicant testified that he had over twenty friends prior to the accident and that on occasion they used to come by his house after work and hang out. He states that he has no social life as he feels ashamed and does not have much to offer. He acknowledges his ex-partner as his best friend and even her new spouse as a friend. He acknowledged having a good relationship with his mother and that his stepfather has always been there for him and continues to be. He maintains that family social functions are limited and that he does not stay very long when they do occur.
27The applicant’s own testimony does not support a finding of a class 4 marked impairment in social function. There is evidence that he did maintain a new relationship with a female partner for approximately one-year post-accident. He continues to be friends with his ex-partner and her spouse, and he has a strong relationship with his mother, stepfather, and his son. He also on occasion has play dates with his son, his son’s friend, and the friend’s father. He testified that he ate at McDonalds almost daily, and there is no evidence that he does not interact with the employees in an appropriate manner. Further, many years after the accident he was hired by a friend who commuted with him almost daily for a month and paid him for this position which was a supervisory safety position for a subcontractor at the UPS distribution centre in Burlington, Ontario. This to me is all evidence of some useful functioning.
28The applicant was able to functionally and effectively communicate when he testified before the tribunal. He testified that he has no difficulty with computers, tablets, or cell phones as corroborated by Dr. Gavett-Liu’s report. He testified that he avoids new situations and stays at home most of the time for fear of anxiety around new people. Although unsettled at times the applicant was able to understand and communicate efficiently, effectively, and coherently. He was most visibly happy when speaking about his relationship with his son and their constant interactions while playing Roblox virtually together as his son only gets to stay with him every second week. Although I recognize that his activities of daily living and social function may be different then they used to be, his communication, understanding, and politeness through a highly stressful event such as a hearing is not evidence that he has a class 4 marked impairment because the evidence shows some useful functioning.
29Dr. Gavett-Liu’s assessment of the applicant is inconsistent with the applicant’s presentation at the hearing. He demonstrated appropriate social behavior, communication skills including eye contact, topic initiation, topic maintenance and turn-taking. He does avoid interaction with some of his friends; however, the main reason he avoids interaction is that they are mostly cocaine users. This in my view is not indicative behaviour of someone with a class 4 marked impairment but, rather, this is someone who recognizes the possible risks associated with re-engaging with some of his old friends.
30From the evidence before me, the applicant’s ability to interact appropriately and communicate effectively may have been impacted by his accident-related psychological disorders; however, he has shown that he has the ability to maintain a romantic relationship, he does have a strong family network, and there is no evidence that he does not engage appropriately in the community. As such I find that the applicant does not have a class 4 or class 5 impairment in the domain of social functioning.
31Having found that the applicant does not have a class 4 marked impairment in at least two of four domains and that the applicant does not assert that he has a class 5 impairment, the applicant has not established that he is catastrophically impaired under criterion 8.
ORDER
32The applicant is not catastrophically impaired as defined by the Schedule.
Released: June 28, 2024
John Mazzilli
Adjudicator