Licence Appeal Tribunal File Number: 23-002146/AABS
In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Majid Najm
Applicant
and
Wawanesa Insurance
Respondent
DECISION
ADJUDICATORS:
Michael Beauchesne and Lisa Yong
APPEARANCES:
For the Applicant:
Majid Najm, Applicant Mark Stoiko, Counsel
For the Respondent:
Sarah Catarino, Claims Representative Darrell March, Counsel
Interpreters (Arabic):
Wardia Ochana, Lina Alkabeer, Hala Nassar, and Rose Samano
Court Reporters:
Rana Sarhan and Joni Zhamo
Heard by videoconference:
May 13-17, 2024
OVERVIEW
1Majid Najm (the “applicant”) was involved in an accident on October 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 Wawanesa Insurance (the “respondent”) and applied to the Licence Appeal Tribunal—Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUE
2The issue in dispute is whether the applicant sustained a catastrophic impairment as defined by the Schedule?
RESULT
3The applicant has not sustained a catastrophic impairment as defined by the Schedule.
PROCEDURAL ISSUES
The respondent raises a conflict of interest between Masgras Law, Spinetec Health Care Solutions, and Meditecs Health Management and IME
4We deny the respondent’s motion to exclude the applicant’s evidence.
5Section 15(1) of the Statutory Powers Procedure Act (the “SPPA”) provides that the Tribunal may admit at a hearing, any oral testimony and any document or other thing that is relevant to the subject-matter of the proceeding.
6The respondent filed a motion on May 10, 2023, which sought to exclude several medical documents, including the clinical notes, records, and reports of Spinetec Health Care Solutions (“Spinetec”) and Meditecs Health Management and IME (“Meditecs”). The respondent submits the Tribunal is bound by the Superior Court case of Ashrafian v. Karvarna 2023, ONSC 6944 (“Ashrafian”), where the court found there was a conflict of interest between Masgras Law (i.e., the law firm representing the applicant in this matter) and both Spinetec and Meditecs (i.e., the clinics that assessed and provided treatment to the applicant in this matter). The respondent submits it has not received evidence of the applicant’s acknowledgement and consent to waive this conflict. The respondent asserted that the only remedy available was to exclude the evidence of Spinetec and Meditecs.
7The applicant submits the Ashrafian case has no bearing in this proceeding because the treatment plans proposed by Spinetec and Meditecs are not in dispute. He characterized the respondent’s motion as a collateral attack on the applicant’s evidence and argued that Ashrafian is an adversarial tort case that is distinguishable from this matter where a duty of good faith is owed to the applicant. He submits the respondent is “weaponizing” the issue of consent, as the Tribunal is an administrative body, not a regulator, and the respondent is not arguing on the merits of the case. He further submits that since the Schedule has a consumer protection purpose, the respondent should exercise its duty of good faith and its motion should be dismissed.
8While we acknowledge that Ashrafian is a recent Superior Court case where the Court made a finding that there was a conflict of interest between Masgras Law, Spinetec, and Meditecs, we find this decision is distinguishable as the dispute in question related to the assessment costs invoiced to the insurance company. In our view, the submissions made by the parties on Ashrafian go more to the weight of the Spinetec and Meditecs evidence, and its bearing on the applicant’s impairment.
9Given that this evidence is presumptively relevant to the applicant’s catastrophic impairment claim, and that there is no evidence before the Tribunal that consent is an issue in this proceeding, we find it should be admitted per section 15 of the SPPA. We therefore denied the respondent’s motion to exclude this evidence and invited the parties to revisit their arguments on weight in their closing submissions.
Dr. Gavett-Liu’s report permitted as evidence
10We find it appropriate to admit the psychiatric catastrophic assessment report of Dr. Emily Gavett-Liu (psychiatrist) into evidence.
11On the second day of the hearing, the applicant submitted that he would be prepared to rely on Dr. Gavett-Liu’s report of April 14, 2021, without the benefit of a direct examination. Counsel reported that this was owing to difficulties contacting Dr. Gavett-Liu to confirm her summonsed attendance at the hearing.
12The respondent objected and submitted that the Tribunal should use all efforts to ensure the witness’ attendance as it wanted to cross-examine Dr. Gavett-Liu. The applicant's counsel agreed that Dr. Gavett-Liu's testimony would be preferable, but not essential as she had produced a report.
13We found it was impractical at day two of a five-day hearing to use “all efforts” as requested by the respondent because this would have resulted in having to comply with section 12(4) of the Statutory Powers Procedure Act (the “SPPA”), which requires the Tribunal to obtain a bench warrant from a judge of the Superior Court to compel attendance.
14On the third day of the hearing, Dr. Gavett-Liu made a brief appearance at the hearing to confirm she would not be available to provide testimony as per the summons owing to a conflict. However, she emphasised that her inability to testify should not discredit the opinions and conclusions she shared in her report.
15We found that the respondent’s inability to cross-examine the witness would not be procedurally unfair as there would be no direct examination of the witness. In our view, it was procedurally fair to allow Dr. Gavett-Liu's report to be relied upon by the applicant because it is presumptively relevant (i.e., it is a psychiatric catastrophic report concerning a Criterion 8 matter) and because both parties would have opportunities to speak to this evidence, as well as the weight afforded to Dr. Gavett-Liu’s report, during their closing submissions.
16Since neither party objected specifically to Dr. Gavett-Liu’s report being entered into evidence, we ordered that the report be admitted with provisions for weight to be addressed in closing submissions.
ANALYSIS
17We find the applicant has not sustained a catastrophic impairment per the Schedule.
What must the applicant prove?
18To prove catastrophic impairment under Criterion 8, the applicant must show he has a Class 4 (“marked”) impairment that significantly impedes all useful function in at least three areas of functioning due to a mental or behavioural disorder as a result of the accident. Alternately, the applicant must show one Class 5 (“extreme”) impairment that precludes (i.e., is not compatible with) useful function. The four areas of functioning are presented in chapter 14 of the 1993 American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition (the “Guides”) as: (1) activities of daily living (“ADL”); (2) social functioning; (3) concentration, persistence, and pace (“CPP”) and (4) deterioration or decomposition in work or work like settings (“adaptation”).
19The Guides set out a three-stage process for evaluating catastrophic impairment based on a mental or behavioural disorder. The first stage is diagnosis of any mental disorders. In this case, the applicant submits he was diagnosed with major depressive disorder and post-traumatic stress disorder. The next stage involves identifying the impact of symptomology, which is addressed throughout this decision. The third stage is assessing the severity of limitations by determining levels of impairment for each of the four areas of functioning. For this matter, the applicant’s assessor has determined the applicant is markedly impaired in three areas of function (i.e., social functioning, CPP, and adaptation). The respondent did not produce an assessment of catastrophic determination.
20The parties agree that the applicant’s ADL do not meet the catastrophic impairment threshold. As such, the applicant is required to show he has a marked impairment in all three of the remaining areas (i.e., social functioning, CPP, and adaptation), or an extreme impairment in one of these areas.
Submissions of the parties
21The applicant submits he sustained a marked impairment in social functioning, CPP, and adaptation. He argues that his functioning deteriorated because of back pain and depression. The applicant explains that his mental and behavioural disorders were caused by the accident, and he points to Sabadash v. State Farm et al., 2019 ONSC 1121, and Thiruchelvam v. RBC General Insurance Company, 2022 ONSC 554, to show the “but for” test is satisfied because his pre-existing injuries from an earlier accident in 2016 were exacerbated by his October 2017 accident. The applicant relies on two disability certificates (“OCF-3”) dated December 28, 2017, and October 23, 2018; a psychiatric catastrophic impairment assessment report dated April 14, 2021, by Dr. Emily Gavett-Liu (psychiatrist); the clinical notes and records of Dr. Nabil Keith (family physician); and the consultation notes of Dr. Youssef Slataroff (psychiatrist).
22The respondent submits the applicant has failed to show he is catastrophically impaired per the Schedule. The respondent argues that there is a fundamental lack of evidence relevant to a Criterion 8 application, and that while complaints of accident-related injuries were voiced during the hearing, the applicant fell short of proving those injuries resulted in actual impairments that can be determined as catastrophic in nature. Pertaining to the applicant’s causation arguments, the respondent submits they are immaterial because the applicant has not introduced evidence pertaining to any accident other than the one that occurred on October 27, 2017.
Social functioning
23We find the applicant has not sustained a marked impairment in social functioning as a result of a mental and behavioural disorder.
24According to the Guides, social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with others. This includes the ability to get along with others. Impaired functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, and social isolation.
25The applicant submits his social functioning is markedly impaired. He argues that since the accident, he no longer socializes with anyone and that his relationship deteriorated with his wife, in particular. He explains that he is psychologically and emotionally tired, adding that he no longer wants to be with people.
26The respondent submits that Dr. Gavett-Liu’s report is unreliable as she did not perform any testing required of a psychiatric assessor. The respondent asserts that the applicant has presented limited evidence to show he has any difficulty in social functioning from a mental and behavioral perspective.
27We are not convinced the applicant has shown, on balance, that his social functioning is markedly impaired. In our view, the two OCF-3 forms raised by the applicant during the hearing provide little support to this clam. Part 5 of the OCF-3 completed by Mohannad Bakri (physiotherapist) on December 28, 2017, does not list any mental or behavioural disorders, nor any psychological symptomology. The same can be said for the OCF-3 completed by Dr. Joseph Paton (chiropractor) on October 23, 2018. While the applicant pointed to the evidence of Dr. Keith to show lower back pain, we were not directed to a medical opinion that tied this pain to a mental or behavioural disorder resulting from the accident, nor to any effect the pain may have had on the applicant’s social functioning. We therefore gave Dr. Keith’s evidence, as pinpointed by the applicant during the hearing, little weight.
28We find the applicant’s self reports of social functioning impairment—both in his testimony and as documented by Dr. Slataroff in 2019 and Dr. Gavett-Liu in April 2021—are at odds with the bulk of the evidence in this case. Dr. Slataroff’s note of October 17, 2019, indicates the applicant felt “oppressed and sad all the time.” Dr. Gavett-Liu’s report indicates the applicant shared that he “kept away from people” and “cut everyone off after the accident.” He also told Dr. Gavett-Liu he experienced emotional dysregulation towards his family, friends, and community members, which negatively impacts his ability to relate. The applicant reiterated these impairments during his testimony, explaining that his condition has worsened considerably since the accident.
29In our view, the direct observations of the applicant’s social functioning by both psychiatrists were inconsistent with the applicant’s complaints. Dr. Slataroff’s own observations, as documented in his consultation note, were that the applicant was pleasant, cooperative, and forthcoming with information. During cross-examination, the applicant agreed he was able to explain himself and be cooperative during Dr. Slataroff’s consultation. While Dr. Gavett-Liu mentioned in her report that the applicant presented as a little irritated, her own observations of the applicant’s social functioning were otherwise similar to those of Dr. Slataroff, in that the applicant interacted effectively and appropriately with her, her assistant, and the interpreter. She went on to indicate the applicant demonstrated appropriate social behaviour and noted his social communication skills—including eye contact, topic initiation, topic maintenance and turn-taking—were appropriate.
30We further find that the direct observations of the applicant’s social functioning by Drs. Slataroff and Gavett-Liu are consistent with the testimony offered by Mr. Omar Ali (son of the applicant). While Mr. Ali shared his recollections about the applicant looking unhappy much of the time, presenting as depressed, and becoming angry about his circumstances since the accident, Mr. Ali could not say whether the applicant’s mood affected his interactions with others and went on to confirm that his own interactions with the applicant were not affected by the applicant’s mood. We find Mr. Ali’s testimony to be persuasive because he is a family member and was the only witness to offer direct observations about the applicant’s social functioning outside of a clinical environment where opportunities to engage and observe social functioning are more limited.
31We placed some weight on the respondent’s 2019 surveillance evidence against the backdrop of Dr. Slataroff’s 2019 consultation note, Dr. Gavett-Liu’s 2021 report and Mr. Ali’s present-day observations. We find the surveillance ties together a five-year span of social functioning that, on balance, does not support catastrophic impairment owing to a mental or behavioural disorder. The video evidence viewed during the hearing showed the applicant engaged in a family dynamic that bore no hallmarks of impaired social functioning as defined by the Guides. That is to say, there was no evidence of angry behaviour, frustration, altercations, or interpersonal difficulties. We did not see the applicant socially isolating himself during the family road trip by, for example, remaining in the vehicle at rest stops or at their final destination—he was readily engaging and sometimes playfully interacting with his family. While the applicant explained that another family member handled the English-speaking interactions during the road trip, we find the applicant did not share any concerns or contradictions about his social functioning as depicted in the video surveillance. Given the consistency of the surveillance video with the observations of Dr. Slataroff, Dr. Gavett-Liu, and Mr. Ali, we give less weight to the applicant’s own reports of his social functioning.
32Speaking further to Dr. Gavett-Liu’s report, the applicant did not point to the evidence that Dr. Gavett-Liu relied on to determine he was markedly impaired in social functioning, other than his own self-reports of impairment as documented in Dr. Gavett-Liu’s report. We find this weighs against accepting Dr. Gavett-Liu’s conclusion. We agree with the respondent’s position that the applicant’s failure to point to any collateral interviews, psychometric testing, and community assessments that may have been undertaken to support Dr. Gavett-Liu’s analysis of the applicant’s social functioning diminishes the weight of her determination that he is markedly impaired.
33While we accept that the applicant’s physical condition may have worsened since his accident, we find that the applicant did not show his ailments relate to his social function. During redirect, the applicant said that since 2019, he was close to being crippled. He elaborated on this by saying he had no issues in 2019, and that since that time, his condition and circumstances went downhill to include hypertension, heart issues, diabetes, and weight loss. He described aches and pains all over. While the applicant indicated these ailments made him sad and anxious during cross-examination, we find he did not point to a medical opinion that related impairment in social functioning to the sadness and anxiety he attributed to his worsening physical condition.
34Taken together on balance, we find the evidence presented by the applicant does not support a marked impairment in social functioning as defined by the Guides. While we accept the applicant experiences depression, irritability, and sometimes anger since the accident, we do not conclude that this symptomology significantly impedes all useful functioning (i.e., his capacity to interact appropriately and communicate effectively with others).
CPP and adaptation
35The Schedule requires that the applicant must have a marked impairment in at least three of four areas of function as defined by the Guides to be catastrophically impaired. Given that neither party submits the applicant’s ADL is markedly impaired, and that we have determined the applicant’s social functioning is not markedly impaired, it follows that the applicant cannot meet the legal test for catastrophic impairment. Put differently, even if we were to find the applicant is markedly impaired in both CPP and adaptation, the applicant would still fall short of proving at least three areas of function are markedly impaired. As such, we do not find it necessary to consider the areas of function that pertain to CPP and adaptation.
Causation
36We have not considered the arguments on causation raised by the parties in their closing submissions because the applicant’s failure to show marked impairment in at least three areas of function makes an analysis of causation moot.
ORDER
37The applicant has not sustained a catastrophic impairment. The application is dismissed.
Released: August 9, 2024
Michael Beauchesne Adjudicator
Lisa Yong Adjudicator