Citation: Delorme v. Primmum Insurance Company, 2024 ONLAT 23-000579/AABS

Licence Appeal Tribunal File Number: 23-000579/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 Delorme

Applicant

and

Primmum Insurance Company*

Respondent

DECISION

ADJUDICATOR:

Gareth Neilson

APPEARANCES:

For the Applicant:

Michael Delorme, Applicant

John Lundrigan, Counsel

Stanford Cummings, Co-Counsel

Kevin Padley, Paralegal

For the Respondent:

Peggy Moore, Representative

Sean Van Helden, Counsel

Patricia Hill, Co-Counsel

Court Reporters:

Nikita Ivachtchecko and Christian Ralladi

HEARD: by Videoconference:

February 26, 27, 28, 29, 2024

OVERVIEW

1Michael Delorme, the applicant, was involved in an automobile accident on December 21, 2017, 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, Primmum Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was a belted driver of a vehicle which was turning left into an intersection when it was struck on the driver’s side by another vehicle. The air bags did deploy and police were called however an ambulance did not attend the scene. The applicant was taken to a rental car agency where he rented a car and drove himself home.

3The issue in dispute involves whether or not the applicant should be deemed catastrophically impaired based on Criterion 8. Both parties agreed that the applicant meets the criteria of marked impairment in the adaptation sphere. The parties dispute whether the applicant suffered a marked impairment in at least two other spheres to be deemed catastrophically impaired under Criterion 8.

ISSUES

4The issue in dispute is:

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

RESULT

5The applicant is catastrophically impaired under Criterion 8.

PROCEDURAL ISSUES

6The respondent filed an oral motion to exclude evidence from the applicant’s brief that was not given to the respondent until the Saturday before the hearing was to commence. The respondent argued that the evidence amounted to trial by ambush as including the evidence would bring Criterion 7 into relevancy. The respondent argued that their entire case surrounds Criterion 8 and including evidence that would speak to Criterion 7 would be highly prejudicial.

7The applicant argued that the file needs to be continually adjusted, that the intervening event took place two weeks ago and they had the duty to inform the insurer and adjust their arguments accordingly.

8I ordered that Tab E12 of the applicant brief is inadmissible at this hearing. The information was submitted to the respondent far outside of the production deadlines and adding a second (criterion 7) sphere to the catastrophic impairment argument would be highly prejudicial the respondent.

ANALYSIS

What is catastrophic impairment under Criterion 8?

9The issue before the Tribunal is whether the applicant has demonstrated, on a balance of probabilities, that as a result of the 2017 motor vehicle accident she sustained an accident-related impairment defined as catastrophic by the Schedule.

10Criterion 8 determinations under the Schedule employ the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (AMA Guides). The AMA Guides set out 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).

11The AMA Guides refer to five levels of impairment within each domain: no impairment, mild impairment, moderate impairment, marked impairment and extreme impairment. The levels are explained in the Table below:

Area of Functioning:

Class 1: No Impairment

Class 2: Mild Impairment

Class 3: Moderate Impairment

Class 4: Marked Impairment

Class 5: Extreme Impairment

Description:

No impairment noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning.

12An impairment is catastrophic under Criterion 8 of the Schedule if, as a result of a mental or behavioural disorder, a person has an “extreme” level of impairment in any one of the four functional domains or has a “marked” level of impairment in at least three of the four functional domains. The onus is on the applicant to demonstrate this on a balance of probabilities.

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

13I find the applicant is catastrophically impaired as he has a marked impairment in three spheres: Adaptation, Social Functioning and Activities of Daily Living.

14Both parties agree that the applicant suffers a marked impairment in the area of Adaptation, so I need not comment on this sphere any further.

Marked Impairment in the Social Functioning Sphere

15According to the AMA Guides, the area of social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals such as family and friends, neighbours, clerks and others. It is not only the number of aspects in which social functioning is impaired that is significant, but also the overall degree of interference with a particular aspect or combination of aspects.

16The evidence presented showed that the applicant had a challenging life prior to the accident. The applicant had struggled with alcoholism; however, he was able to overcome his addiction years before the subject accident. Evidence presented also showed that he had started drinking a year prior to the accident due to a work-related stressor; however, he found a new job and again was able to stop abusing alcohol. The testimony and evidence presented shows that the applicant did not have a substance abuse problem immediately prior to the accident and was living what could be considered a normal and productive life.

17Evidence presented at the hearing showed that the applicant led an active daily life. He was very involved with his children’s lives, went to the gym on a regular basis and his relationship with his spouse was very good. Testimony given by both the applicant and his spouse detailed the applicant as someone who enjoyed cooking for others and having dinner parties. The testimony given at the hearing paints the picture of the applicant being an outgoing person who enjoyed being around people and having a social life. The evidence provided shows that the applicant has withdrawn from all social activities and relationships.

18The applicant relies heavily on reports from Dr. Ricci (psychologist), Shealagh Earle-Meadows (OT) and Dr. Waisman (psychiatrist) whereas the respondent relies on reports from Deanne Evans (OT) and Dr. Weisenthal (psychiatrist).

19The respondent argues that the applicant has a moderate impairment in the sphere of Social Functioning. OT Evans generated two reports over two days, which concluded that the applicant was able to interact with OT Evans in an appropriate way. The applicant was polite, could hold a conversation and was able to answer questions as required.

20Dr. Weisenthal concluded that the applicant has a class 3 or moderate impairment in the sphere of Social Functioning. Dr. Weisenthal diagnosed Somatic Symptom Disorder, Alcohol Use Disorder and Adjustment Disorder, but does not believe the applicant suffers from Major Depressive Disorder. Dr. Weisenthal testified that the accident was a stressor for the applicant; however, it is not the cause of his excessive drinking. Dr. Weisenthal believes that in the sphere of Social Functioning the applicant is isolating himself, losing relationships with friends and family because the alcohol makes him very angry and emotional which is the result of alcohol use disorder and not related to the accident.

21The applicant argues that he has a marked impairment in the sphere of Social Functioning. The report of OT Earle-Meadows concludes that the sphere of Social Functioning is the sphere most affected by the motor vehicle accident. Earle-Meadows conducted two assessments of the applicant. Importantly, OT Earle-Meadows conducted interviews with a friend of the applicant and two family members prior to the assessment of the applicant. Significantly, the first assessment was done over a six-hour period with 90 minutes in the community around where the applicant lives. Earle-Meadows conducted interviews with 3 of the applicant’s social group before the assessment to understand more about the applicant’s pre and post accident functioning. Earle-Meadows also had the applicant undertake a community integration questionnaire, where it was found that the applicant’s level of community integration had dropped significantly since the accident. The Beck Anxiety Test that was administered showed that the applicant had severe levels of anxiety which contributes significantly to his impairment as it relates to the applicant’s social functioning.

22Dr. Waisman concluded that, as a result of the motor vehicle accident, the applicant developed a Major Depressive Disorder and a Somatic Symptom Disorder. Dr. Waisman testified that the applicant has at least five of the symptoms required for the diagnosis of Major Depressive Disorder, and while the applicant did have some depressive issues before the accident, he was never diagnosed with depression. Dr. Waisman opined that the Major Depressive Disorder causes a severe deterioration in the applicant’s social functioning. Dr. Waisman continued that, but for the accident, the Somatic Symptom Disorder would not have developed. Dr. Waisman concluded that based on the AMA Guides, the applicant’s impairment levels significantly impede useful functioning and therefore the applicant meets the criteria for a marked impairment.

23I prefer the evidence submitted by the applicant, specifically the assessment done by OT Earle-Meadows. OT Earle-Meadows interviewed three people prior to the assessment. This is important for an OT assessment as it helps the assessor understand what the function level of the applicant was like pre-accident. OT Evans did not interview anyone in the applicant’s life, but rather relied on a self assessment questionnaire. It’s also important to note that the OT report that the applicant is relying on contains the results of a significant amount of tests within the local community. The report the respondent relies upon is entirely an in-home assessment. This is a stark difference when considering the level impairment in the Social Functioning sphere. Considering that Dr. Waisman relied heavily on the OT report by Earle-Meadows, I find that the community-based portion of the assessment helps strengthen the diagnosis of Dr. Waisman.

24For the reasons above, I find that the applicant has a marked impairment in the sphere of Social Functioning.

Marked Impairment in the Activities of Daily Living Sphere

25The AMA Guides specify that activities of daily living include self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitation in these activities should be related to the person’s mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual’s overall situation. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

26The evidence provided shows the applicant as a man who, prior to the accident, was fully independent, traveled with his family, had a normal sex life with his partner, and was engaged in social and recreational activities. The applicant was active at home with his children, enjoyed going to the gym regularly and attended events such as parent/teacher meetings at his children’s school. After the motor vehicle accident, the evidence provided shows a significant change in the applicant’s Activities of Daily Living.

27I found the applicant and his partner to be forthright during their evidence at the hearing. As an aside, the applicant has been noted to under-report his symptoms. I am satisfied that their evidence is credible and reliable, and allowing me an accurate understanding of what the applicant’s pre-accident life was like. The applicant’s partner is a shift worker and, before the accident, their testimony is that the applicant would do most of the grocery shopping, the majority of the cooking, most of the laundry, cut the grass, clear the driveway of snow and share other responsibilities approximately 50/50 around the home. The applicant drove the family to Florida in the fall of 2016. The applicant was active at the Ottawa Athletic Club going at least three days a week, prior to the accident.

28Post-motor vehicle accident, the applicant has not returned to work and was receiving an income replacement benefit. The applicant has been known to go six weeks without taking a shower. He no longer does any of the daily activities around the house. He rarely prepares any meals and he doesn’t go to the gym any longer as he needs the use of a walker. His weight increased from approximately 160 pounds pre-accident to 225 pounds. The applicant developed a significant drinking problem and has been diagnosed with Alcohol Use Disorder. The applicant testified that he’s embarrassed about his drinking but does so to ease the pain that he is in. Evidence given at the hearing shows that the applicant now spends most of his days in bed and has no contact with any former friends. The alcohol abuse has also led to anger issues whereby the CAS was called in after the applicant was violent with his children.

29The applicant relies on the OT assessment of Shealagh Earle-Meadows, the report of Neuropsychologist Dr. Leclerc, Psychologist Dr. Ricci and Psychiatrist Dr. Waisman. The respondent relies on the OT report of Deanne Evans and well as the report from Dr. Weisenthal.

30OT Evans’ conclusions, based on the assessment reports previously referenced, was that the applicant could do some cooking if prompted, has the ability to get dressed and shower, was able to do personal care and do groceries if necessary. OT Evans did testify that, while he could do these daily living activities, the applicant lacks the motivation and therefore likely doesn’t do these activities as much as he could. OT Evans noted that she did not believe that not being able to do lawn maintenance or using the snow blower because of physical pain was not a significant change in the applicant’s daily living activities.

31Dr. Weisenthal opined that the applicant’s impairment level under Activities of Daily Living is moderate because he was able to do some of these activities after the accident such as driving, cooking and cleaning. Dr. Weisenthal opined that the applicant is not a marked impairment as a result of the accident, but rather the accident was a stressor that triggered the applicant’s addiction to alcohol which has led to the impairments that the applicant has.

32Both Dr. Leclerc and Dr. Ricci have diagnosed the applicant with PTSD as a result of the accident. OT Earle-Meadows opined that the applicant could do basic tasks with encouragement but struggled significantly with tasks that he could have easily done pre-accident. Earle-Meadows noted that 99% of the population would have performed better on the kitchen meal preparation task. Earle-Meadows noted that 98% of the population would have performed better on the bathroom cleaning task. The Beck Anxiety Test noted a high level of anxiety which is consistent with someone who is withdrawing from day-to-day activities.

33Dr. Waisman concluded that while pre-accident the applicant was a vulnerable person, the accident amplified his pre-existing vulnerabilities. Dr. Waisman believes that the accident was a stressor. He developed Major Depressive Disorder because of the accident which has led to series of cascading events where the applicant’s Activities of Daily Living have been significantly impeded by the accident. Waisman noted that the applicant always needs prompting and encouragement to do normal daily tasks. He has trouble sleeping, does not have a sex life, is withdrawn from people and struggles to go into the community.

34I prefer the evidence and testimony provided by the applicant. On a balance of probabilities, I believe that the applicant has sustained a marked impairment in the sphere of Activities of Daily Living as a direct result of the motor vehicle accident. The applicant’s daily functioning has clearly changed significantly since the accident, and the evidence and testimony show that a person who was a very productive member of society before the accident, spends most of his time in his bed drinking.

Conclusion

35I find that the applicant has marked impairments in three domains of functioning set out in the AMA Guides and therefore has suffered a catastrophic impairment as a result of the accident.

ORDER

36I order the following:

i. I find the applicant has sustained a catastrophic impairment as defined under the Schedule.