Citation: Barnes v. Security National Insurance Company, 2024 ONLAT 22-011911/AABS

Licence Appeal Tribunal File Number: 22-011911/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:

Scott Barnes

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Amar Mohammed

APPEARANCES:

For the Applicant:

Scott Barnes, Applicant David Cote, Counsel Manisa Kafai, Counsel

For the Respondent:

Peggy Moore, Representative

Michael Huclack, Counsel

Court Reporter:

Matri Shah

HEARD: by Videoconference:

March 11, 2024 to March 20, 2024

OVERVIEW

1Scott Barnes, the applicant, was involved in an automobile accident on July 25, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Security National Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

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

ii. Is the applicant entitled to $14,642.50 ($24,082.50 less $9,440.00 approved) for a CAT determination assessment, proposed by 101 Assessments in a treatment plan/OCF-18 (“plan”) dated October 12, 2021?

iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The results for the issues in dispute are:

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

ii. The applicant is not entitled to $14,642.50 proposed in the plan.

iii. The respondent is not liable to pay an award.

iv. The applicant is not entitled to interest.

ANALYSIS

The applicant has not sustained a catastrophic impairment

The applicant is not catastrophically impaired under criterion 7

4I find the applicant has not sustained a catastrophic impairment because of the accident under criterion 7. While I accept some of the ratings provided by the applicant’s assessors as being accurate, the applicant has not met his burden of proving he meets the threshold of impairment to be deemed catastrophically impaired.

5To be deemed catastrophically impaired, the applicant must prove on a balance of probabilities that he 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 he 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.

6The applicant was assessed by s. 25 assessors and furnished a report authored by Dr. Herschorn as the executive summary author. The respondent assessed the applicant by s.44 assessors and furnished a report authored by Dr. Meikle as the executive summary author.

7The following chart summarizes the applicant’s position and the respondent’s position on the applicant’s criterion 7 WPI ratings. The Combined WPI Tribunal (%) column is a running total of the rating based on my findings as a result of the analysis that follows. The applicant and respondent relied on the median rating from the mental and behavioural impairment category and I adopted the same method.

Impairment	Applicant WPI (%)	Respondent WPI (%)	Combined WPI Tribunal (%)
	Dr. Herschorn	Dr. Meikle
Cervicothoracic spine	5
Thoracolumbar spine	5	10
lumbosacral spine	5
Right shoulder	7		16
Right knee	2
Mental status	14		27
Sleep and arousal	4
Cervicogenic headaches	10		34
Sexual dysfunction	3
Hearing / Tinnitus	2	0-11	35
Polypharmacy	3	3	37
Musculoskeletal		10
Traumatic Brain Injury		7
Face/Nose		0-5
Effects of Treatment		3
Physical WPI	48%	19-32%	37%
Mental & Behavioural	BPRS 40% GAF 20% PIRS 30% MEDIAN: 30%	BPRS 15% GAF 10% PIRS 15% MEDIAN: 15%	BPRS 15% GAF 10% PIRS 15% MEDIAN: 15%
COMBINED TOTALS	64%	31-42%	46%

8Key submissions and findings on criterion 7 ratings:

i. Sexual dysfunction – the respondent’s assessors did not rate the applicant for this. The applicant conceded and withdrew this rating in his submissions.

ii. Lumbosacral spine – The applicant’s position is that his rib injury must be accounted for in this separate category because the rib attaches to the lumbosacral spine. The respondent argues this rating is contrary to the AMA Guides which do not rate this impairment unless there is injury or impairment directly to this area of the spine. The applicant is already rated for injuries to the cervicothoracic spine and thoracolumbar spine. I accept the respondent’s position and its expert’s opinion that the rib injury cannot be described as part of the lumbosacral spine based on its place of attachment as argued by the applicant. This rating is rejected. I note the respondent accepts the rating of 5% each for the cervicothoracic spine and thoracolumbar spine which the respondent accounts for as a 10% rating labeled as musculoskeletal.

iii. Right shoulder – The applicant’s position is that his range of motion testing led to an accurate rating of 7% by Dr. Getahun. The respondent argued that the surveillance video of the applicant shows him engaging in activities that are inconsistent with this rating. However, the experts did not change their rating based on the video evidence and Dr. Getahun testified that engaging in such activities doesn’t necessarily mean the applicant is not suffering from a rateable impairment. The respondent’s orthopaedic assessor, Dr. Safir, stated in his report and testimony that his range of motion testing was inconsistent with his informal observations of the applicant’s movements. When asked what those observations and inconsistencies were, Dr. Safir was unable to answer with certainty other than to restate the conclusion that there was inconsistency observed. Dr. Safir provided testimony that any notes prepared at the assessment were destroyed and are not available. Dr. Safir’s report does not provide the basis of his conclusion, I therefore give no weight to the argument that Dr. Safir’s conclusion invalidates Dr. Getahun’s rating. Dr. Getahun testified that he found no inconsistencies in his observations of the applicant and this is the reason no inconsistencies are included in his report. This rating is accepted.

iv. Right knee – the applicant’s assessors rated the knee based on range of motion. I accept the respondent’s position that there are no complaints of knee pain post accident in any of the medical records so there cannot be a rating that would relate this to the accident. This rating is rejected.

v. Mental status – the AMA Guides provide four description categories with a minimum and maximum impairment rating associated with each descriptor. The respondent argues that providing the highest impairment rating under the first descriptor is inaccurate. The AMA Guides provide this description of the applicant’s 14% rating: “Impairment exists, but ability remains to perform satisfactorily most activities of daily living”. This description applies for a range between 1% to 14%. Whereas, beginning at 15%, the applicant would require “direction and supervision of daily living activities”. The respondent argues the applicant is not on the cusp of the second descriptor and so the rating is inflated. In addition, this type of impairment can be caused by drinking or substance use in addition to psychological issues. I disagree with the respondent that I must consider the second descriptor in order to evaluate where the applicant falls within the previous lower descriptor range. The second descriptor would only be relevant if the applicant had been rated in the 15% to 29% range, as a result of requiring “direction and supervision of daily living activities” which is not the case here. I accept the description and rating provided by the applicant’s assessor.

vi. Sleep and arousal – The applicant argues his sleep and arousal issues are a result of the accident. The respondent points to the applicant’s testimony that he has had these issues his entire life and that they became worse in 2017, prior to the accident. The respondent’s position is that any rating would be invalid as the impairment is not caused by the accident and was pre-existing. Further, there is no evidence of exacerbation as a result of the accident. Based on the testimony of the applicant and expert witnesses I find this rating is not applicable because these issues were pre-existing and I am not satisfied the applicant has shown an exacerbation resulting from the accident.

vii. Hearing Tinnitus – The applicant submits a rating of 2% as a result of the accident. The respondent argues no rating should be provided as a result of a note found in Dr. Basile’s neurological assessment stating that the applicant “would benefit from an ENT consultation and audiology consult.” The respondent’s ratings provide a range of 0% to 11%. I did not hear any evidence suggesting the impairment could not be rated without the further consultations taking place and I accept the applicant’s expert’s rating. I also accept that there could be benefit from the recommended consultations as suggested by the applicant. This does not impact the rating assessed by the applicant’s expert. This rating is accepted.

viii. Mental and Behavioural – The applicant’s assessors did not have or present a baseline for the applicant’s mental and behavioural impairment as a result of his significant pre-accident circumstances, injuries and diagnosis. I therefore assigned less weight to the ratings provided by the applicant’s assessors.

ix. GAF scale – The applicant’s assessor provided a 30% rating as a result of a 31-40 score on this scale that ranges from 0 to 100, with a lower score equating to high levels of impairment. The respondent argues this rating is inaccurate as there is no reliable evidence establishing impairment in reality testing or communication. Examples of this would be speech that is illogical, obscure or irrelevant, otherwise there must be major impairment in several areas. For purposes of the GAF scale I did not find this type or level of impairment. Based on the evidence and testimony provided, I prefer the 51-60 score on the scale. This aligns with the applicant’s evidence of moderate symptoms, occasional panic attacks and moderate social difficulty. I find the 10% rating put forth by the respondent’s assessor to be accurate.

x. PIRS scale – The applicant’s assessor provided a 30% rating whereas the respondent’s assessor provided a 15% rating. I find the 15% rating accurate based on the evidence and testimony presented by the applicant.

xi. BPRS scale – The applicant’s assessor provided a 40% rating whereas the respondent’s assessor provided a 15% rating. I find the 15% rating accurate based on the evidence and testimony presented by the applicant.

9The applicant’s WPI rating is 46% on the basis of my findings above. The applicant does not meet the threshold required to be considered catastrophically impaired under criterion 7.

10I find that the applicant is not catastrophically impaired under criterion 7.

The applicant is not catastrophically impaired under criterion 8

11I find that the applicant did not suffer from a catastrophic impairment as a result of the accident under criterion 8 because I do not accept the marked impairment rating in “social functioning”.

12To be deemed catastrophically impaired, the applicant must prove on a balance of probabilities that he 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 first prove that they have a mental or behavioural disorder as a result of the accident and that he suffers from a class 4 impairment (marked impairment) in three or more areas of function or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder. The parties agree that the applicant has a mental or behavioural disorder as a result of the accident however they do not agree about the level of impairment the applicant has in his functioning as a result.

13The applicant submits that he suffers from a class 4 marked impairment in three areas of functioning while the respondent submits that the applicant suffers from one class 4 impairment, in adaptation. 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		Applicant and Respondent
Social functioning		Respondent	Applicant
Concentration, persistence, and pace		Respondent	Applicant
Adaptation - Deterioration or decompensation in work or work-like settings			Applicant and Respondent

14The applicant argued that I should accept the marked impairment rating in the sphere of “social functioning” based on the findings of psychiatrist Dr. Yaroshevsky, who diagnosed the applicant with Generalized Anxiety Disorder and Substance Use Dependence / Alcohol Use Disorder. He opines that the applicant’s impairment in affect regulation and loss of motivation significantly restricts relationships with family, friends and community members and that he has become reclusive, isolative and avoidant of social and family interactions. Dr. Yaroshevsky opines this is as a result of the accident.

15The respondent argued that the applicant’s complaints and Dr. Yaroshevsky’s opinion lack context from the applicant’s significant pre-accident history as well as his post-accident social functioning. When faced with evidence of this pre-accident medical and social history, Dr. Yaroshevsky said he would need to confront the applicant about details to fully grasp the implications on his opinions, which may change. At one point, after review of surveillance, he went as far as to suggest parts of his opinion wouldn’t simply change but rather the opinion wouldn’t exist or be necessary. I agree with Dr. Yaroshevsky, based on the evidence, the expert opinion provided contradicts the reality of the applicant’s level of social functioning due to incomplete information and a lack of context. I find that the applicant’s social functioning is compatible with some, but not all, useful functioning and is best rated as moderately impaired, at most.

16Without a marked impairment in the area of social functioning, the applicant cannot meet the minimum required three marked impairments and therefore I find that the applicant is not catastrophically impaired under criterion 8.

The applicant is not entitled to $14,642.50 ($24,082.50 less $9,440.00 approved) for a CAT determination assessment

17I find the applicant is not entitled to the disputed amount for a catastrophic determination assessment. The applicant made no submissions on this issue for me to consider. As outlined in Scarlett v Belair Insurance, 2015 ONSC 3635, the evidentiary onus is on the applicant. In Shakur v. Pilot Insurance Co. (C.A.), 1990 CanLII 6671 (ON CA) stated that “it is fundamental insurance law that the burden of proof rests on the insured to establish a right to recover under the terms of the policy.”

Interest

18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that there are no overdue benefits to which interest applies.

Award

19The applicant sought an award under s. 10 of Reg. 664. Under s. 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. The applicant’s oral submissions on this issue focused on the respondent asking for and gathering information and scheduling an assessment which in the applicant’s view were unreasonable. However, the applicant did not meet his onus to show that the respondent unreasonably withheld or delayed payment of any benefits. I am therefore not convinced the applicant is entitled to an award because no payment of benefits was unreasonably withheld or delayed by the respondent.

ORDER

20For reasons provided, I order as follows:

i. The applicant is not catastrophically impaired.

ii. The applicant is not entitled to $14,642.50 ($24,082.50 less $9,440.00 approved) for a CAT determination assessment.

iii. The applicant is not entitled to interest.

iv. The applicant is not entitled to an award.