Licence Appeal Tribunal File Number: 22-008859/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:
Lien Ngoc Thi Mai
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Lien Ngoc Thi Mai, Applicant Fayola Benjamin, Counsel Kayla Benjamin, Counsel
For the Respondent:
Jennifer Bethune, Senior Recovery Care Specialist
Robert Bowman, Counsel
Interpreter (Vietnamese language): Hearing Reporter:
Minh Ngoc Pham Alyssa Scott
HEARD: by Videoconference:
November 20 to 24, 2023
OVERVIEW
1Lien Ngoc Thi Mai, the applicant, was involved in an automobile accident on April 3, 2017 (“subject accident”) 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, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSES
2The issues in dispute are:
i. Has the applicant sustained a catastrophic (“CAT”) impairment as defined by the Schedule?
ii. Is the applicant entitled to $5,348.30 ($19,108.30 less $13,760.00 approved) for CAT Assessments, proposed by Omega Medical Associates in a treatment plan dated November 3, 2020?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant does not meet the definition of catastrophic impairment under Criterion 8 of the Schedule.
4The applicant is not entitled to $5,348.30 for CAT Assessments.
5The applicant is not entitled to interest on any overdue payment of benefits.
ANALYSIS
6The applicant submits that the subject accident triggered psychological injuries that has led to a designation of catastrophic impairment under Criterion 8 under s. 3.1 of the Schedule and that the treatment plan in issue was necessary to fully determine the issue of catastrophic impairment.
7The respondent takes the position that the applicant’s psychological state did not change after the subject accident, and as such her impairments are not caused by the accident. Further, the respondent submits that it has fully funded the treatment plan at issue as required under section 25(1).5 of the Schedule and that no further amount is owing.
8I find that the applicant is not catastrophically impaired because she has not demonstrated that she sustained marked impairments in three domains sufficient to meet the requirements of catastrophic impairment under Criterion 8 of the Schedule.
9The applicant bears the onus to prove on a balance of probabilities that she is catastrophically impaired. In reference to Criterion 8, she must prove that, as a result of the accident, she has marked or Class 4 impairments in at least three of the four domains as outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”) due to a mental or behavioral disorder. In Chapter 14 of the Guides, impairments are classified according to how much they impair a person’s useful functioning in the following four areas of function: activities of daily living, social functioning, concentration, persistence and pace, and adaptation.
10I find that, based on the evidence presented, the applicant has not demonstrated that she suffered a marked impairment in the areas of social functioning or concentration, persistence and pace as a result of the subject accident.
The applicant has not suffered a marked impairment in the area of social functioning as a result of the accident
11According to the Guides, the factors to consider under this domain are an individual’s capacity to interact appropriately and communicate effectively with others, including getting along with family members, friends, neighbours, grocery clerks, lenders, etc. Some examples of impaired social functioning include a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, etc. A person’s strength in social functioning could be demonstrated by their ability to initiate social contact with others, communicate clearly with others, interact and actively participate in group activities, exhibit cooperative behaviour, consideration for others, awareness of others’ sensitivities and social maturity.
12I find the applicant to be an unreliable historian as her testimony is not consistent with her regular reporting to her psychiatrist in the three years prior to the subject accident.
13The applicant testified that in the year prior to the subject accident, her physical health was normal and psychologically she was normal and happy. She testified that she had only been seeing her psychiatrist, Dr. P. Tran, for headaches and that she had no issues with depression. She was able to do all of the household chores, cooking, grocery shopping, taking care of her grandchild, exercising, driving her daughter’s car on the weekends and she went out with her friends shopping, dancing, and Karaoke singing. The applicant testified that as a result of pain, fatigue, headaches, depression and insomnia after the subject accident, she can no longer cook or do household chores, she does not want to do anything or go out with her friends. Her daughter comes over on weekends and does the grocery shopping, prepares food and does the household chores. The applicant mostly talks to friends over the phone instead of in person because of her pain, and she no longer does anything for fun. She only goes shopping with her friends about once per year and she has not driven since the subject accident because of fear.
14Based on significant inconsistencies between the applicant’s testimony and her reporting to Dr. Tran, I find the applicant’s testimony to be unreliable.
15During cross-examination, the applicant was questioned about Dr. Tran’s notes in the three years before the subject accident. The applicant testified that she told Dr. Tran she only had “light” depression, whereas after the accident it became more severe, and she denied telling Dr. Tran that she had suicidal thoughts before the accident. However, in Dr. Tran’s medical records between February 28, 2014 and March 10, 2017, less than one month prior to the subject accident, the applicant consistently reported to Dr. Tran that she was depressed, her energy and appetite were low, she felt helpless and hopeless, she had suicidal thoughts, her memory and concentration were not good, and she had insomnia. Dr. Tran diagnosed the applicant with Pain Disorder and Depression with Psychosis throughout this period of time. The applicant denied that Dr. Tran diagnosed her with Pain Disorder and she testified that during the visit one month prior to the accident she told Dr. Tran she was feeling better. Although the applicant testified that what Dr. Tran wrote in his notes prior to the subject accident was not true, she testified that his notes after the accident about her depression, concentration and memory problems and suicidal thoughts were accurate. In all of the circumstances, I do not accept the testimony of the applicant with respect to her pre-accident functioning.
16I place reduced weight on the testimony of the applicant’s daughter, Mimi Luong.
17Ms. Luong testified that prior to the subject accident, the applicant’s physical health was good, she did most of the household chores and cooking, went for walks, went grocery shopping, helped take care of her son, and went out with friends on a weekly basis. She testified that the applicant had some emotional issues but they were not noticeable on a regular basis. The applicant kept to herself and did not discuss her feelings. Ms. Luong was not sure what medication the applicant was taking prior to the accident. She testified that since the subject accident, the applicant is less active and healthy, complains a lot about pain, takes more pills, goes out less with friends, is moody and emotional. Although the applicant does not talk to her about her feelings, Ms. Luong testified that she can tell that the applicant is more depressed.
18Ms. Luong explained that she now does the majority of household chores, cooking and grocery shopping. She moved out about two years ago and she goes to see the applicant every weekend to do groceries, tidy up and prepare foods that can be put in the microwave. Ms. Luong knows the applicant went to see a specialist but was not aware that he was a psychiatrist. She is unaware that prior to the accident the applicant was reporting depression, poor memory and concentration, low energy, and thoughts of suicide. Although Ms. Luong reported that the applicant’s health deteriorated after the accident, she was not aware of the applicant’s mental health prior to the accident. Further, for the past two years, Ms. Luong has only spent time with the applicant on weekends. For these reasons, I place reduced weight on her testimony.
19The applicant’s regular reporting to her psychiatrist in the three years prior to the subject accident is not consistent with her self-reporting during her Occupational Therapist assessment conducted by Ms. Bani Ahuja.
20Bani Ahuja, Occupational Therapist (“OT”) assessed the applicant on April 15 and 16, 2021 and prepared an Occupational Therapy Functional Evaluation dated April 19, 2021 based on her observations, the applicant’s self-reporting, a review of the applicant’s medical documents and a file review completed by the applicant’s physiotherapist. Ms. Ahuja assessed the applicant’s ability to engage with others over two days, which included a community outing, and concluded based on her observations that the applicant’s ability to endure her pre-accident level of social participation would be limited given her observed physical, cognitive and emotional tolerances. The applicant reported to Ms. Ahuja that she was very social pre-accident, and would interact daily with her friends, she would attend and host social events during the week and on weekends.
21During cross-examination, Ms. Ahuja conceded that she did not have the pre-accident records from the applicant’s treating psychiatrist, Dr. Tran. She had only been provided with Dr. Tran’s records from the period beginning on May 2, 2018, over one year after the subject accident. In Dr. Tran’s records that refer to the three years prior to the accident, the only mention of interaction with friends is a note dated January 30, 2015 indicating “some socialization with some friends” as well as on June 22, 2015 and September 9, 2016, where she says she goes out for walks with friends sometimes. On March 10, 2017, in addition to her feelings of depression, the applicant reported that she is not going out much except for groceries and she is not going to church or temple. The applicant’s regular reporting to her psychiatrist in the three years prior to the subject accident is not consistent with someone who is happy and social, as the applicant reported to Ms. Ahuja. I place little weight on Ms. Ahuja’s assessment since it is based in part on the applicant’s self-reporting, which I find to be unreliable, as well as an incomplete documented medical history.
22Dr. Henry Rosenblat, psychiatrist, conducted an in-person assessment of the applicant on April 21, 2021, and prepared a report dated July 26, 2021 which was based on his review of medical documentation, an interview with the applicant, as well as psychometric testing. Dr. Rosenblat testified on behalf of the applicant. Although he did not have Dr. Tran’s pre-accident notes, he was aware the applicant was under Dr. Tran’s care from information he received in a psychiatrist report from Dr. Joan Tucker dated February 7, 2018, indicating that the applicant saw Dr. Tran for depression and some psychotic symptoms which included auditory hallucinations. Dr. Tucker noted that in the absence of Dr. Tran’s clinical notes, it was very difficult to say with medical certainty the psychiatric impact of the subject accident and whether there was a clear exacerbation in the applicant’s psychiatric condition. It was noted that the claimant was already experiencing a serious and prolonged psychiatric condition prior to the accident. Dr. Tucker indicated that the applicant reported that she has returned to carrying on substantially all of her normal pre-accident activities.
23Based on his assessment, Dr. Rosenblat rated the applicant with a Class 3 Moderate impairment in the domain of social functioning.
24Although the applicant spends less time with friends, she speaks to them on the phone. Ms. Luong testified that the applicant has a good relationship with her immediate and extended family and maintains contact with all of them. The applicant visited her sister and other relatives in Vietnam for three months during the summer of 2022, her friends bring her to doctors’ appointments and Ms. Luong comes to visit and help her every weekend.
25On a consideration of all of the evidence, I find that the applicant has not met her onus of proving on a balance of probabilities that she suffered a Marked impairment in the area of social functioning as a result of the accident.
The applicant has not suffered a marked impairment in concentration, persistence and pace as a result of the accident
26The Guides specify that the factors to consider under this domain are concentration, persistence and pace needed to perform many activities of daily living, including task completion. Task completion refers to the ability to sustain focused attention long enough to complete tasks commonly found in activities of daily living or at work. In order to consider strengths and weaknesses in mental concentration, there is a consideration of frequency of errors, the time it takes to complete the task and the extent to which assistance is required to complete the task.
27The evidence provided in Ms. Ahuja’s Occupational Therapy Functional Evaluation is not supportive of the applicant’s submission that the subject accident caused a marked impairment in concentration, persistence and pace. Ms. Ahuja concluded that the applicant was unable to sustain concentration over both days of testing, unable to persist with any of the tasks presented secondary to experiencing a significant fear of further exacerbation, thereby reducing her ability to work at a steady pace. She noted significant difficulty with concentration, persistence and pace. The applicant reported experiencing impaired memory and concentration post-accident. I am not persuaded by Ms. Ahuja’s report as she was not aware of the applicant’s pre-existing impairments in this domain at the time the assessment was conducted.
28In cross-examination, Ms. Ahuja conceded that the applicant did not tell her that she had memory and concentration problems prior to the subject accident. In Dr. Tran’s records between February 28, 2014 and March 10, 2017, the applicant consistently reported that her concentration and memory were poor. On two occasions, she reported that she would go into a room and forget why. On December 9, 2016, she reported that her concentration and memory were getting worse. Since Ms. Ahuja relied on the applicant’s reporting about her difficulties in memory and concentration post-accident, which did not consider her regular reporting of these issues prior to the accident, Ms. Ahuja’s conclusions are not indicative that the accident caused the applicant’s difficulties with concentration and memory.
29Further to his assessment of the applicant, Dr. Rosenblat diagnosed her with post-traumatic stress disorder, major depressive disorder and somatic symptom disorder. He found that the applicant suffered a marked impairment in concentration, persistence and pace as a result of the accident.
30I place little weight on the findings made by Dr. Rosenblat for the following reasons. As indicated above, Dr. Rosenblat did not review the applicant’s treating psychiatrist’s records in the years prior to the subject accident. In addition, the psychometric testing was based on self-reporting, and only one of the tests, the Rey 15 Item Test, contained validity testing. The scores on this test were suggestive of cognitive feigning. Dr. Rosenblat did indicate that these findings have to be interpreted with care, given the language barrier as the applicant does not speak English and required the services of a Vietnamese interpreter. However, in light of my finding that the applicant is an unreliable historian, I have concerns accepting the psychometric test results in any event.
31Further, during the interview, there were several inconsistencies. The applicant told Dr. Rosenblat that she had good concentration before the accident, yet Dr. Tran’s records indicate the opposite. She reported that she had not done any travelling since the accident, yet she went to Vietnam for three months. The applicant denied being in pain prior to subject accident, yet Dr. Tran’s records indicate that he diagnosed her with Pain Disorder in the three years leading up to the accident. The applicant advised Dr. Rosenblat that she had a “little bit” of depression prior to the accident and that it was worse afterward, which is not borne out in Dr. Tran’s records. For these reasons, I place little weight on Dr. Rosenblat’s findings.
32Based on all of the evidence, I am not satisfied that the applicant has met her onus of demonstrating that she suffered a marked impairment in concentration, persistence and pace as a result of the accident.
33Since the Guides set out that the applicant must demonstrate that she has at least three marked impairments sufficient to meet the requirements of catastrophic impairment under Criterion 8 of the Schedule, I need not consider the other two areas of function.
The applicant is not entitled to $5,348.30 ($19,108.3 less $13,760.00 approved) for CAT Assessments
34I find that the applicant has not demonstrated that she is entitled to the balance of $5,348.30 for the CAT assessments.
35Section 25(1) of the Schedule sets out that the insurer shall pay for reasonable fees charged for preparing an assessment for determining catastrophic impairment. Section 25(5) limits those fees to not more than $2,000.00 for fees and expenses for conducting any one assessment and any one report in connection with CAT.
36The applicant submits that the portion denied was necessary to fully determine the issue of CAT impairment. The respondent submits that it has paid for the total amount as required by the Schedule.
37The applicant did not file any documentation to support her assertion that the denied portion of funds was necessary to fully determine the issue of CAT impairment. The respondent filed a letter dated November 25, 2020 addressed to the applicant setting out that it paid $2,000.00 for a psychiatry assessment and denied the remaining $4,500.00 requested for this assessment.
38As set out above, $2,000.00 is the maximum amount the respondent is required to pay for any one assessment. The respondent also denied an additional $200.00 for an OCF-19 application as well as $10.00 for personal protective equipment for the client to attend the facility. The total denied amount is $5,348.30.
39Since evidence was not tendered to establish that the denied portion of funds was necessary to determine the issue of catastrophic impairment, the applicant has not demonstrated on a balance of probabilities that she is entitled to the balance of $5,348.30 for the CAT assessments.
Interest
40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No treatment plans are payable and owing, therefore the applicant is not entitled to interest.
ORDER
41The applicant does not meet the definition of a catastrophic impairment as defined under Criterion 8 of the Schedule.
42The applicant is not entitled to $5,348.30 for CAT Assessments.
43The applicant is not entitled to interest on any overdue payment of benefits.
Released: August 9, 2024
Laura Goulet
Adjudicator