Licence Appeal Tribunal File Number: 22-008072/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:
Maninder Kaur
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATORS:
Jeremy A. Roberts Jennifer Mendelsohn
APPEARANCES:
For the Applicant:
Maninder Kaur, Applicant
Tanzeela Ansari, Counsel
Ramendeep Minhas, Counsel
For the Respondent:
TD General Insurance Company, Respondent
Jeffrey F. Pasternak, Counsel
Interpreter:
Yash Kapur, Punjabi language
Court Reporter:
Prashanth Thambipillai
Heard by Videoconference:
March 11-18, 2024
OVERVIEW
1Maninder Kaur, the applicant, was involved in an automobile accident on October 5, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Services (the “Tribunal”) for resolution of the dispute.
2The respondent denied that the applicant sustained a CAT impairment because of the accident. They also denied certain benefits that the applicant sought, including post-104 income replacement benefits, attendant care benefits, out-of-pocket expenses, physiotherapy treatment and occupational therapy treatment.
ISSUES
3The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from July 20, 2022 to date and ongoing?
iii. Is the applicant entitled to attendant care benefits in the amount of $1,840.75 per month from October 16, 2020 to date and ongoing?
iv. Is the applicant entitled to $1,411.26 for physiotherapy services, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) dated September 13, 2021?
v. Is the applicant entitled to $878.00 for transportation, submitted on a claim form (OCF-6) dated September 1, 2021?
vi. Is the applicant entitled to $2,158.52 for physiotherapy, chiropractic and massage services, proposed by 101 Physio in a plan dated November 8, 2021?
vii. Is the applicant entitled to $4,390.64 for physiotherapy, chiropractic and massage services, proposed by 101 Assessments in a plan dated February 10, 2022?
viii. Is the applicant entitled to $2,128.51 for occupational therapy services, proposed by 101 Assessments in a plan dated January 13, 2021?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
PROCEDURAL ISSUES
Length of the hearing limited to 6-days
4At the start of the hearing, upon consideration of the number of witnesses the parties intended to call, we issued an order that the hearing would proceed in six days, which would accommodate approximately two witnesses per day. At the case conference, this matter had been initially set-down for a 12-day hearing. The applicant objected arguing that rescheduling their witnesses would prevent certain witnesses from being able to provide their testimony.
5We find that a six-day hearing was sufficient to ensure a fair, timely, and efficient resolution to this matter. Proceeding as originally planned would have left multiple days unused, which is not an efficient use of the Tribunal’s time. The case conference report and order clearly indicated that all orders were subject to the hearing adjudicator’s discretion. Moreover, the order also stated that the “parties are encouraged to agree to a timetable for testimony to ensure an efficient hearing”, which the applicant did not do here. For any witnesses unable to testify, we invited the parties to enter their reports as exhibits.
Denied request to summons a witness
6Due to our decision to limit the number of days for the hearing, the applicant requested that we issue a summons for Registered Nurse Natalya Khramtsova, whose testimony was relevant to the issue of an attendant care benefit but who was unavailable due to the March break.
7We denied the request to issue a summons. The Licence Appeal Tribunal Rules 8.2 stipules that a summons should be issued no later than 10 days before the hearing. Even after our shortening of the hearing length, there remained several blank time slots which could accommodate additional testimony. The applicant was invited to schedule their witness during that time.
Ending the cross-examination of Dr. Yaroshevsky
8During the cross-examination of Dr. Yaroshevsky the doctor was asked whether certain pieces of information would change the opinions he provided in his reports. The respondent had been allocated two hours for its cross-examination. Under questioning, the doctor admitted that the new information would cause him to change the opinions in his report, such that he would not have found the applicant to be catastrophic. The doctor stated “I give up”.
9In light of this new information, we decided to end the cross-examination. Neither the applicant nor the respondent objected. The applicant was given a brief opportunity for any questions in reply, after which the witness’ testimony was concluded.
RESULT
10The applicant has not sustained a catastrophic impairment as defined by the Schedule.
11The applicant is not entitled to post-104 IRBs as she does not suffer a complete inability to work in her pre-accident employment.
12As it is agreed that the applicant has exhausted the non-CAT/non-MIG benefit limits on the basis of benefits which have been approved by the respondent, and as she has not sustained a catastrophic impairment, none of the other benefits in dispute are payable. As there is no entitled to benefits, no interest is owing and .
ANALYSIS
The applicant is not catastrophically impaired under criteria 7 or 8
13We find that the applicant is not catastrophically impaired under criteria 7 or 8 because we do not accept the findings of psychiatrist Dr. Yaroshevsky and without these findings the applicant cannot meet her onus.
14In order to be found to have a catastrophic impairment under the Schedule under criterion 7, the applicant must prove that the impairments they suffer as a result of the accident have a combined physical and mental/behavioural rating that results in a whole person impairment (“WPI”) rating of 55% or more. Physical impairments are rated using the American Medical Association (AMA) Guides (the “Guides”) 4th Edition. Mental/behavioural impairments are rated using the Guides 6th Edition.
15Alternatively, the applicant can satisfy the criterion 8 test for catastrophic impairment as set out in s. 3.1(1), subsection 8 of the Schedule. The applicant must prove the accident caused a Class 4 (“marked”) impairment – which is one that significantly impedes useful functioning, in three of the four areas of function contemplated by the Guides– or a class 5 (“extreme”) impairment, which is one that precludes useful functioning, in one of the four areas of function contemplated by the Guides. These four areas are: activities of daily living; social functioning; concentration, persistence, and pace; and adaptation to work or work-like settings. As well, the impairment must result from a mental or behavioural disorder caused by the accident.
16For both criteria 7 and 8, the onus is on the applicant to prove their case on a balance of probabilities. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one as determined by the case Liu v. 1226071 Ontario Inc., 2009 ONCA 571.
14In this case, the applicant’s case rests on the findings of Dr. Yaroshevsky, who provided a 30% WPI rating under “Mental & Behavioural Disorders” and provided three “Marked” impairment ratings in the areas of social functioning, concentration, persistence & pace, and adaptation. The 30% WPI rating combines with a 37% WPI rating under physical impairments to total a combined 56% WPI rating, satisfying criteria 7. Without Dr. Yaroshevsky’s findings, the applicant cannot meet her onus in providing that she is catastrophically impaired under either criteria 7 or 8.
15The applicant argued that we should accept the findings of Dr. Yaroshevsky because based on his clinical interview, review of the documentation, and assessment of the applicant he found her to be extremely anxious, have poor concentration, and was not able to follow instructions. He opined that the car accident had caused her to suffer from significant mental impairments which negatively impact her sleep, her ability to engage in recreational activities, restrict her ability to travel or plan and have caused her to become avoidant of familial interactions. While concerns about the validity of Dr. Yaroshevsky’s findings were raised during cross-examination, the applicant argued that the cross-examination should be given no weight because the witness was asked questions out of context (such as whether he knew the applicant had travelled since the accident), which were unfair. The applicant argued that the impairments identified by Dr. Yaroshevsky mirror those described by the applicant and her husband during their testimonies.
16The respondent argued that the evidence of Dr. Yaroshevsky should be given no weight because during cross-examination, when confronted with evidence of the applicant engaging in recreational activities, maintaining familial relationships and taking long trips to visit her family, Dr. Yaroshevsky stated that if he had known about her ability to do those things it would have affected his impairment scoring. For example, he testified that he would have marked her impairment ratings in the four areas of functioning as lower with the benefit of this information. He stated that he based much of his findings on her self-reporting and when asked if he conducted any validity testing, stated that he had not.
17We find that the applicant has not satisfied her onus in demonstrating that she meets the requirements to be deemed catastrophically impaired under criteria 7 or 8 because we place little weight in the testimony of Dr. Yaroshevsky, whose evidence is pivotal for the case of the applicant. While the applicant has undoubtedly suffered as a result of this accident, her testimony, which mirrors the self-reporting given by her to Dr. Yaroshevsky, does not align with the medical evidence provided to the Tribunal, which demonstrates her ability to independently perform activities of daily living, independently engage in self-care, take care of a young child and travel internationally by herself. We give no weight to Dr. Yaroshevsky’s findings, because when confronted with these examples he recanted on the findings of his report. We did not find these questions to be unreasonable and when asked similar questions, other witnesses defended their findings, which Dr. Yaroshevsky did not. For example, he suggested that the applicant’s ability to travel would have caused him to lower his rating provided under the sphere of adaptation. Without Dr. Yaroshevsky’s 30% WPI or his functional impairment ratings, the applicant does not meet her onus in proving her catastrophic impairment designation.
The applicant is not entitled to an IRB
26We find that the applicant is not entitled to IRBs because she has failed to establish that she suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
27In order to receive payment under s. 6(2) of the Schedule, the applicant must prove that she has a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
28The applicant had immigrated to Canada approximately one year pre-accident. She has a master’s degree in computer science from India and had been employed as a general labourer at the time of the accident. The applicant testified that before immigrating to Canada she was working as a lecturer in a college and that but-for the accident, she had plans to obtain some form of degree or certification in Canada. Prior to the accident, the applicant was working as a general labourer for 40 hours per week.
29The applicant argued that she suffered a complete inability to engage in any employment for which she is reasonably suited as a result of her right arm pain, dizziness, and cognitive issues. She testified that she has not attempted to return to any form of employment since the accident because of these concerns. Her evidence was supported by Dr. Yaroshevsky, who opined that she was not able to return to work due to her inability to focus or follow direction, poor concentration and memory, and difficulty maintaining an appropriate pace.
30The respondent submits that the applicant does not meet the test for post-104-week IRBs because the evidence provided by Dr. Yaroshevsky does not match the applicant’s actual functional capabilities and his evidence should be given no weight given that he did not support his report during cross examination. It further submits that the evidence of the insurer examination assessors, neurologist Dr. Yahmad, psychologist/neuropsychologist Dr. Tuff, and orthopedic surgeon Dr. Safir all found that the applicant did not suffer a complete inability to return to work for which she is reasonably suited.
31We are not persuaded by the applicant’s medical evidence and testimony that the applicant suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience. The applicant testified that she has travelled to India and Australia from Canada multiple times, either alone or with her young son, who was born after the subject accident. The applicant has been her son’s primary caregiver since his birth and surveillance evidence showed the applicant taking care of her son, travelling alone with him by bus and taking him for walks and to get togethers. We find that in light of that evidence, coupled with a lack of reliable medical opinion on the subject, the applicant’s functional or psychological impairment does not rise to the level where she could not return to employment to which she is reasonably suited by education, training or experience.
The applicant is not entitled to the remaining benefits in dispute
32As it is agreed that the applicant has exhausted the non-CAT/non-MIG benefit limits and she has not sustained a catastrophic impairment, none of the other benefits in dispute are payable.
The applicant is not entitled to an award
33Section 10 of Regulation 664 provides that in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, the Tribunal may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award with interest if the insurer unreasonably withheld or delayed payments.
34As the applicant is not entitled to the benefits in dispute, she is not entitled to an award.
The applicant is not entitled to interest
35As no benefits are payable, it follows that no interest is payable under s.51.
ORDER
34We order the following:
i. The applicant has not sustained a catastrophic impairment under criterion 7 or 8.
ii. The applicant is not entitled to an IRB.
iii. The applicant is not entitled to the benefits in dispute.
iv. The applicant is not entitled to an award.
v. The applicant is not entitled to interest.
vi. The application is dismissed.
Released: July 18, 2024
__________________________
Jeremy A. Roberts Vice-Chair
__________________________
Jennifer Mendelsohn Adjudicator