Licence Appeal Tribunal File Number: 23-002685/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:
S.P.
Applicant
and
Belair Direct Insurance Company
Respondent
DECISION
ADJUDICATOR:
Tami Cogan
APPEARANCES:
For the Applicant:
S.P., Applicant Frank McNally, Counsel
For the Respondent:
Matthew Day, Accident Benefits Adjuster
Farzana Merchant, Counsel Raman Pandher, Counsel
HEARD: by Videoconference:
April 29, 30, May 1, 2, and 3, 2024
OVERVIEW
1S.P., the applicant, was involved in an automobile accident on August 8, 2016, 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, Belair Direct Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was involved in two subsequent accidents on February 17, 2017, and on May 19, 2017.
ISSUE
3The issue in dispute is:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
RESULT
4The applicant has not sustained a catastrophic impairment as defined by the Schedule.
5The application is dismissed.
PROCEDURAL ISSUES
Withdrawal of Issues in Dispute
6At the start of the hearing, the applicant withdrew the issue of a denied treatment plan, and interest on overdue payments.
Anonymization of Tribunal Decision
7The Tribunal’s decision will be anonymized.
8The applicant sought an order to have the Tribunal’s decision anonymized to protect the privacy of the applicant on the grounds that they continue to work in their professional field and the public knowledge of their psychological condition would have a significantly detrimental affect on their professional reputation, their business and their ability to earn an income.
9The respondent did not take a position on this request.
10The open court principle applies to administrative tribunals, and this must be taken into consideration. In the case of Sherman Estate v Donovan, 2021 SCC 25, the Supreme Court of Canada held that a person seeking to limit the open court presumption must establish the following:
i. Court openness poses a serious risk to an important public interest;
ii. Order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk;
iii. As a matter of proportionality, the benefits of the order outweigh its negative effects.
11The Supreme Court recognized privacy as an important public interest. I find that the public disclosure of applicant’s identity does pose a serious risk to their privacy relating to their medical and mental health conditions.
12The order sought is not for a publication ban or the sealing of the Tribunal’s decision. The order sought is for the order to be anonymized through the use of initials, allowing the decision and its reasons to be public. I find this is the most reasonable measure to protect the applicant’s privacy.
13I find the negative effect of anonymizing the decision is minimal because the decision and the reasons for the decision remain available to the public. I find that proportionally, the benefit of protecting the applicant’s privacy and professional reputation outweighs the negative effects of the public not knowing the applicant’s identity.
14The Tribunal’s decision will be anonymized by using the applicant’s initials as the only identifier. The applicant’s spouse, co-worker, and the applicant’s business will also be identified only by initials.
Clinical notes and records of Dr. Jwely, psychiatrist
15The applicant’s request for a production order for Dr. Jwely’s clinical notes and records is denied.
16The applicant sought the disclosure of Dr. Jwely’s clinical notes and records. The respondent has refused to disclose the records from an insurer’s examination that was conducted after the case conference. The applicant submits the records are necessary to prepare for cross-examination of the witness, and that the Tribunal has the authority to order the documents at any time during the process pursuant to Rule 9.2.1 of the Licence Appeal Tribunal Rules, 2023, (“the Rules”).
17The respondent submits the insurer’s examination was conducted on January 27, 2024, two days after the last production deadline ordered at the case conference. On April 18, 2024, the applicant requested the respondent produce the clinical notes and records, the report with track changes and the draft report(s). The respondent submits that the applicant had the opportunity to file a motion for a production order and did not and that Dr. Jwely will be a witness in the proceeding and the applicant will have the opportunity to cross-examine the witness on the report.
18The applicant had the opportunity to file a motion for this production order prior to the hearing and did not do so. I will not order this production.
Insurer’s Examination report of C.P. from Dr. Jwely
19The applicant’s request for a production order for the insurer’s examination report of the applicant’s spouse is denied.
20The applicant sought the production of the insurer’s examination report of the applicant’s spouse that was conducted in early April 2024. Or, in the alternative, if the report has not been finalized, then production of the clinical notes and records from the assessment. The request was made on the grounds that Dr. Jwely questioned the applicant’s spouse about the applicant’s functionality and this information is necessary for cross-examination.
21The respondent submits the applicant’s spouse has their own Accident Benefits claim that is not before the Tribunal. The disclosure request for the report was received from the applicant only one day prior to the hearing. This production is unrelated to this proceeding as the applicant’s spouse is not a party to this matter. Further, Dr. Jwely will be a witness and can be cross-examined on his conclusions related to the applicant.
22I find the report being requested is not related to this application and therefore not relevant. The applicant had the opportunity to file a motion for this production order prior to the hearing and did not do so. I will not order this production.
Exclusion of the applicant’s supplemental documents brief
23The respondent’s request for an order to exclude, in its entirety, the applicant’s supplemental document brief is denied.
24The respondent sought to exclude the applicant’s entire supplemental documents brief. The request was made on two grounds: i) the respondent received the brief one day late, and ii) the respondent was not made aware if the supplemental brief had been filed with the Tribunal.
25The applicant submits they were working from the previously submitted respondent’s brief. The respondent previously had all of the documents, and the brief was only one day late. The new system for filing material at the Tribunal caused a short delay.
26I note that the respondent received the supplementary brief one day late, on the same day that it was filed with the Tribunal. I find the remedy sought by the respondent to be disproportional. I have not heard submissions that the respondent would be prejudiced by the applicant relying on the supplemental brief. I find that the respondent has not been prejudiced by the one-day late filing because they have received the brief and have had an opportunity to review it. I will not order the applicant’s brief to be excluded.
Exclusion of the clinical notes and records from Ottawa Psychology Group
27The respondent’s request for an order to exclude from evidence the clinical notes and records from Ottawa Psychology Group is denied.
28The respondent sought to have the clinical notes and records from Ottawa Psychology Group excluded from evidence because they were served late. Or, in the alternative, the Tribunal should give less weight to the evidence. The documents were received on April 16, 2024, as part of their late filed supplemental document brief. The deadline for document exchange was September 27, 2023, as per the case conference report and order. The respondent submits that to allow the documents into evidence would be procedurally unfair. The respondent has not had the opportunity to put the documents before their experts for review and comment. The applicant should have filed a motion for an extended deadline. Pursuant to Rule 9, the applicant should not be permitted to rely on the documents.
29The applicant submits it was an inadvertence that the documents were not previously provided. The initial request was made to the clinic on November 21, 2023. A follow-up request was made on April 16, 2024, and when received they were immediately provided to the respondent. There is no need for the respondent’s experts to review or provide an addendum.
30I note that it is difficult to know the probative value of the evidence if it is not tested. I note that these records had been requested by the respondent at the case conference, and when the documents were not exchanged by the deadline, the respondent had the opportunity to file a motion for a production order, which it did not do. I also note that Dr. Matousek from the clinic will be a witness in the proceedings and can be cross-examined on the records. For this reason, I find that the respondent has not been prejudiced by the late submission. The applicant may rely on the clinical notes and records from Ottawa Psychology Group.
Exclusion of the applicant’s witnesses
31The respondent’s request for an order to exclude all of the applicant’s witnesses is denied.
32The respondent sought to have all of the applicant’s witnesses excluded because the applicant’s witness list and will say statements of their two lay witnesses were served and filed late. In accordance with Rule 9.4.3, the witness list and will say statements were due 21 days prior to the hearing. The applicant’s witness list was not served until April 17, 2024. Dr. Gavett-Liu was noted as only being available on the morning of April 30, 2024. The respondent sought a summons for this witness, to ensure she would be available for an extended time, however, the summons was denied because it was less than 10 days prior to the hearing.
33The applicant submits that all witnesses were listed in the case conference order and report except for one lay witness, the applicant’s co-worker, who will replace the applicant’s family doctor. The respondent has had an opportunity to prepare. The applicant was not notified of these issues being raised and to exclude all witnesses would be unfair. Dr. Gavett-Liu will be available for three hours and does not require an additional summons.
34I note the witness lists and will say statements were due by March 30, 2024, 30-days prior to the hearing in accordance with the case conference order and report. Rule 9.4.3 of the Licence Appeal Tribunal Rules does not apply to this proceeding because the application was filed on March 8, 2023 and the first notice of case conference was issued April 14, 2023, which means that the Tribunal’s Common Rules of Practice and Procedure, October 2, 2017 (the “Common Rules”) apply. Pursuant to Rule 9.4 of the Common Rules, due to the failure to comply with the case conference order, the applicant requires consent of the Tribunal to call the witnesses to give evidence.
35I find the late filed witness list does not prejudice the respondent. The respondent does have the will say statements of the lay witnesses and has had time to prepare. Dr. Gavett-Liu is available for the morning of April 30th, which is sufficient time for both direct and cross examination. The applicant may call all of their witnesses.
ANALYSIS
Catastrophic Impairment
36I find the applicant has not sustained a catastrophic impairment as defined by the Schedule for the reasons that follow.
37In order to prove their case, the applicant must demonstrate that they have suffered accident-related impairments that result in a marked (class 4) impairment in three or more areas of function according to the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment (the “Guides”) 4th Edition due to a mental or behavioural disorder.
38Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides set out the four areas or “spheres” of functioning and the relative levels of impairment. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one. See: Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30.
39The four spheres of functioning are set out in the Guides as follows:
i. Activities of daily living;
ii. Social functioning;
iii. Concentration, persistence and pace;
iv. Adaptation to work or work-like settings;
40The levels of impairment are set out and defined in the Guides as follows:
i. Class 1: No impairment;
No impairment is noted.
ii. Class 2: Mild impairment;
Impairment levels are compatible with most useful functioning.
iii. Class 3: Moderate Impairment;
Impairment levels are compatible with some, but not all useful functioning.
iv. Class 4: Marked Impairment;
Impairment levels significantly impede useful functioning.
v. Class 5: Extreme Impairment;
Impairment levels preclude useful functioning.
41The applicant’s position is that they have mental or behavioural impairments to a marked degree in; activities of daily living, social function, and adaptation, under Criterion 8 of the AMA Guides 4th Edition and meet the definition of catastrophically impaired in accordance with the Schedule.
42The respondent’s position is that the applicant has not suffered a marked impairment, but rather a moderate impairment in all areas of function in dispute, and the application should be dismissed.
43The applicant relies on the psychiatric assessment of Dr. Gavett-Liu, psychiatrist, dated December 16, 2022. The applicant also relies on the occupational therapy in-home assessment and occupational therapy situational assessment by Ms. Woelke, each with a report date of December 16, 2022. I note Ms. Woelke testified that each assessment was three hours in duration.
44The respondent relies on the psychiatric assessment of Dr. Jwely, psychiatrist, dated February 14, 2024. The respondent also relies on the occupational therapy in-home assessment (3 hours 30 minutes in duration) and occupational therapy situational assessment (3 hours and 30 minutes in duration), by Mr. Habash, each with a report date of September 6, 2023. I note that given the assessments of Mr. Habash were conducted on the same day, the duration of testing lasted a total of seven hours in a single day.
45Based on the documentation reviews in both Dr. Gavett-Liu and Dr. Jwely’s reports, I note that the applicant consistently reported to assessors that they have reduced motivation and tolerances for household domestic activities, reduced motivation for certain self-care, social, and recreational activities, as well as decreased frequency of intimacy. All activities were completed with reported increased pain and fatigue. The applicant reported reduced memory and concentration at work, which resulted in reduced work hours and clientele. The applicant reported being prone to angry outbursts, irritable behaviour, less tolerant and less patient, and interpersonal conflicts developed.
46Dr. Gavett-Liu’s assessment report dated December 16, 2022 provides comprehensive details of the clinical interview she conducted. She provides the psychometric testing results. I find the self-reported Pain Intensity-Frequency Grid to be particularly helpful. The applicant rated the frequency of pain as constant and the intensity as “marked”, which is defined as “the pain precludes carrying out most activities of daily living. Sleep is disrupted. Recreation and socialization are impossible. Narcotic medication or invasive procedures are required and may not result in complete pain control.” This self-report is the applicant’s perception of their condition. However, the applicant has consistently reported to all examiners and treatment providers that they do complete activities of daily living although on a reduced level and frequency, and they do on occasion engage in recreation and socialization activities, which means these activities are not precluded or impossible. The applicant has also consistently reported they do not take narcotics and there has been no evidence of invasive procedures to control pain. I note the applicant’s reporting of severity is not consistent with their reporting of their ability to function.
47Dr. Gavett-Liu diagnosed the applicant with Somatic Symptom Disorder, with predominant pain, persistent, severe; Major Depressive Disorder, with anxious distress, and; Post-Traumatic Stress Disorder. Dr. Jwely diagnosed the applicant with Chronic Adjustment Disorder, Mixed Type, Moderate to Severe; and Chronic Somatic Pain Disorder.
48It is not the diagnoses that determine if an applicant is catastrophically impaired, but rather their level of functionality.
i. Activities of Daily Living
49I find the applicant does not have a marked impairment in the sphere of activities of daily living.
50The activities of daily living are defined in the Guides:
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.
51I heard evidence that the applicant consistently reported to assessors, being independent with their activities of daily living as identified in the Guides: for example, self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities. These tasks are completed without supervision or direction, although to a lesser frequency than before the accident. The applicant has reported and testified to using the strategies of pacing or taking breaks and demonstrated the capacity for some useful functioning in all of these activities. The applicant stated their ability to cook independently is restricted to simple meals, and performance of household tasks are limited by pain and amotivation, however, supervision and direction are not required. As found in the document review sections of Dr. Gavett-Liu’s and Dr. Jwely’s reports, all of the assessors reported the applicant as a good historian who responded appropriately to questions and provided clear answers, although responses were on occasion tangential.
52I also heard testimony from the applicant that they ambulate without aids and participates in personal training, which includes the use of a treadmill for 20 – 30 minutes per session a few times each week. Although driving anxiety is reported, the applicant continues to drive, although for shorter distances, but does so independently, traveling to stores, driving the oldest child to school daily and to recreational activities each week. The applicant reported decreased frequency of sexual intimacy, however, does not report cessation of intimate relations with their spouse. As demonstrated through the applicant’s social media posts and the respondent’s surveillance in evidence, as well as the applicant’s testimony, the applicant participates in social and recreational activities, albeit on a less frequent basis, such as attending restaurants and going to the park with their children. Without supervision, the applicant does take on the responsibility of caring for their young children, including participating in bedtime routines regularly and supervising them during outdoor play. The applicant also testified to continuing with their pre-accident activities such as gardening, lawncare, pool maintenance, and snow clearing. The applicant has also engaged in home renovations, including flooring in the entryway of the family home, a two-piece washroom, a deck, and a fence. Although assistance was received when completing these projects, I agree that they require a level of functionality above a marked impairment.
53Dr. Gavett-Liu rated the applicant as having a marked impairment in the sphere of activities of daily living. I note that the applicant did not inform Dr. Gavett-Liu of their parental involvement with the children, social outings identified in the social media posts, an outing to the park with their children and dog as demonstrated in the surveillance video, or the household renovations. I find that without the benefit of knowing all of the applicant’s activities, the conclusion of Dr. Gavett-Liu is less persuasive.
54Dr. Jwely rated the applicant as having a mild impairment in the sphere of activities of daily living. I prefer the opinion of Dr. Jwely because it is supported by the abundant concurrent reports of the other medical assessors who, throughout the applicant’s accident benefits claim, have noted the applicant’s independent activities in the sphere of activities of daily living.
55Based on the evidence before me, including the applicant’s testimony, social media posts, a surveillance video, and the independent medical examination reports, I agree with Dr. Jwely and I find the applicant has an impairment at a level that is compatible with most useful functioning.
56I find that on a balance of probabilities the applicant does not suffer from a marked impairment as a result of the accident, due to a mental/behavioural disorder in the sphere of activities of daily living.
ii. Social Functioning
57I find the applicant does not have a marked impairment in the sphere of social functioning.
58Social functioning is defined in the Guides:
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.
59The applicant reports a history of altercations since the accident. These altercations were with family members, co-workers, clients, and customer service representatives. The applicant reports having left an employment contract due to being unable to meet performance goals and increasing conflicts with co-workers. The applicant has sought marriage counselling due to tensions in their relationship resulting from accident-related injuries. Dr. Gavett-Liu noted evidence of impairment in affect regulation that she opined could affect their capacity to initiate and maintain social relationships. Dr. Gavett-Liu attributes the social altercations to emotional dysregulation under stress and physical symptom escalation. Dr. Gavett-Liu considered the occupational therapy report of Ms. Woelke and attributed the use of expletives to express frustration, taking work-related phone calls in socially incongruent contexts, tangential speech which required redirection, as well as decreased attention to verbal and written instructions as factors toward a rating of a marked impairment in social functioning. During her testimony Ms. Woelke acknowledged that the applicant had always been very appropriate with her.
60I disagree with the conclusion of Dr. Gavett-Liu that the applicant’s social functioning reaches the level of a marked impairment. The applicant’s relationship with their spouse remains intact, and the applicant reported it has been improving since counselling provided strategies for supporting one another. The applicant does report continued relationships with a few close friends and clients who were known prior to the accident. The applicant also continues to pursue therapy which, as Dr. Jwely identifies, suggests an effort to improve relational dynamics and communication skills, which reflects a degree of social engagement and initiative. The applicant also continues to have an associate working under them.
61I find the conclusion of Dr. Gavett-Liu is less persuasive than the concurrent reports of all of the other assessors who have consistently described the applicant as polite, co-operative, and socially appropriate with their speech being normal in tone, rate and volume. I note that during three situational assessments conducted in public settings, the applicant engaged with customer service representatives with effective communication and interpersonal interactions. The applicant was able to give oral testimony for a total of eight hours, without incident. I agree with Dr. Jwely that the applicant demonstrates a level of impairment that is compatible with some, but not all useful functioning.
62I find that on a balance of probabilities the applicant does not suffer from a marked impairment as a result of the accident, due to a mental/behavioural disorder in the sphere of social functioning.
iii. Concentration, Persistence and Pace
63I find the applicant does not have a marked impairment in the sphere of concentration, persistence and pace.
64Concentration, persistence and pace is defined in the Guides:
Concentration, persistence and pace needed to perform many activities of daily living, including task completion. Task completion refers to the ability to sustain focussed attention long enough to permit the timely completion of tasks commonly found in activities of daily living or work settings … Strengths and weaknesses in mental concentration may be described in terms of frequency of errors, the time it takes to complete the task and the extent to which assistance is required to complete the task.
65The applicant reported cognitive difficulties such as impaired memory, concentration and attention, as well as impaired multi-tasking and constant fatigue. Before the accident the applicant reports working between 50 and 60, or even 70 hours each week. Based on the assessment reports, the hours of work have declined to 20, 15, 10, or even 5 hours per week. The applicant reported reducing the number of client accounts from upwards of 1200, to somewhere between 800 and 300 clients. Where the applicant reports having been highly motivated in proactive sales prior to the accident, the proactive sales are now left to the junior associate. The applicant acknowledged that most of these accounts require little attention because their policies are active. The applicant attributed the decline in clientele to the inability to engage in proactive sales, however, it is unclear as to how many, if any, clients were lost when the applicant terminated a contract to pursue clientele as an independent advisor. It is difficult to align the applicant’s report of working as little as 5 hours per week with being a business owner, having an associate to supervise, and being responsible for the accounting and client account oversight. The applicant acknowledges having completed training for and obtaining a mortgage licence in 2022. I note that the associate is not licenced for mortgages, meaning this area of work falls entirely on the applicant.
66The applicant was repeatedly assessed as being able to respond to questions and follow instructions, which demonstrates an ability to process, comprehend and interpret information appropriately. Dr. Gavett-Liu rated the applicant to have a moderate impairment in concentration, persistence, and pace. Dr. Jwely concurred with the rating of moderate impairment.
67I find that on a balance of probabilities the applicant does not suffer from a marked impairment as a result of the accident, due to a mental/behavioural disorder in the sphere of concentration, persistence, and pace.
iv. Adaptation
68I find the applicant does not have a marked impairment in the sphere of Adaptation to work or work-like settings.
69Adaptation to work or work-like settings is defined in the Guides:
Deterioration or decompensation in work or work like settings refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation signs and symptoms … He or she may decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks. Stressors common to the environment include attendance, making decisions, scheduling, completing tasks and interacting with others.
70Dr. Gavett-Liu concludes that the applicant’s impaired memory, concentration, attention, and impaired multi-tasking would likely lead to poor decision-making, increased errors and decreased task efficiency in a work-setting. The applicant’s severe stress intolerance causes either withdrawal and/or worsening in emotional symptoms. Impairment in social functioning would interfere with the capacity to maintain work-like relationships. Dr. Gavett-Liu rated the applicant as having a marked impairment, while Dr. Jwely rates the applicant as having a moderate impairment in the sphere of adaptation. Dr. Jwely relies on the applicant’s self-reported ability to drive short and long distance, with breaks, which indicates a capacity to plan and execute necessary adaptations for physical limitations. The applicant has also continued to pursue treatment for both their physical and psychological challenges and retains capacity for adaptation and functional participation in activities of daily living, social interactions, and professional responsibilities.
71I find that in the sphere of adaptability, the applicant has demonstrated a capacity to accommodate the new limitations encountered since the accident. There is no doubt that the applicant’s life has been changed by the accident-related injuries. However, the applicant continues to make reasonable decisions that allow continued participation in all spheres of functioning. There has been a reduction in the applicant’s clientele base, however, the applicant has engaged an associate to deal directly with clients in order to maintain the applicant’s business. The applicant changed their employment status to adapt to their limitations and obtained a new licence in 2022 for mortgages to expand available revenue sources. The applicant has adapted to their limitations in the household by using grocery delivery services, a self-propelled lawnmower, snowblower, and a pool vacuum, preparation of simplified meals rather than complex cultural dishes, and enlisting assistance to complete household renovations, all of which allow the applicant to continue their participation, albeit in an accommodated manner. The applicant does continue in their professional capacity as a financial advisor, which requires complex tasks, decision making and interacting with others.
72Based on the evidence before me, I find the applicant’s impairment levels are compatible with some, but not all useful functioning, but do not rise to the level of an impairment that significantly impedes useful functioning in the sphere of adaptation.
73On the balance of probabilities, since the applicant has not established a marked impairment on at least three areas of functioning, I cannot find that the applicant has sustained a catastrophic impairment based on criterion 8 of the AMA Guides.
ORDER
74The applicant has not sustained a catastrophic impairment as defined by the Schedule.
75The application is dismissed.
Released: July 5, 2024
Tami Cogan
Adjudicator