Licence Appeal Tribunal File Number: 22-013750/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:
Cindy Jones
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
David Derfel, Counsel
Charlie Fuhr, Counsel
For the Respondent:
Michelle Berlin, Adjuster
Michelle Panagiotakos, Counsel
Court Reporter:
Prashanth Thambipillai
Heard by Videoconference
February 5–9, 2024
OVERVIEW
1Cindy Jones (the “Applicant”) was involved in an automobile accident on June 17, 2018, and sought benefits from Wawanesa Mutual Insurance Company (the “Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issue in dispute is:
i. Has the Applicant sustained a catastrophic impairment as defined in the Schedule?
RESULT
3I find that the Applicant sustained a catastrophic impairment as defined in the Schedule.
BACKGROUND
4The Applicant was a passenger on a motorcycle which struck a deer while travelling in rural Minnesota. Police and ambulance arrived on the scene of the accident and the Applicant was transported by ambulance to the hospital, though her recollection of the accident and events immediately thereafter remain foggy to-date. The Applicant spent 9 days in the hospital, receiving care for a concussion, closed displaced fracture of the left collarbone which required surgical intervention, six fractured ribs on her left side, sacral fracture and closed bilateral pubic rami fracture, and other issues.
5The Applicant had no travel insurance at the time of the accident. This contributed to her decision to cut her hospital stay short and return home to Ontario where she could receive OHIP-funded healthcare, despite being unable to ambulate on her own. The Applicant’s husband, who was the driver of the motorcycle involved in the accident, rented a car and drove the pair home to Ontario over a period of four days.
6The Applicant continues to suffer from a myriad of symptoms and submits that these impairments constitute a catastrophic impairment pursuant to criteria 6, 7, and 8.
ANALYSIS
Catastrophic Impairment
7The onus is on the Applicant to demonstrate that she sustained a catastrophic impairment as a result of the accident.
8The parties agree that the accident is the cause of the Applicant’s impairments. Where they disagree is whether the Applicant’s impairments meet the threshold for a catastrophic impairment as a result of the accident.
Criterion 8 – Mental or Behavioural Disorder
9With respect to criterion 8, the onus rests with the Applicant to demonstrate that she suffers from an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (“the AMA Guides”), results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning, due to a mental or behavioural disorder.
10The assessment pursuant to criterion 8 excludes consideration of any physical impairments and is based solely on mental and behavioural disorders. Pursuant to criterion 8, mental and behavioural impairments are measured in four areas: 1) Activities of Daily Living (“ADLs”); 2) Social Functioning (“SF”); 3) Concentration Persistence and Pace (“CPP”); and 4) Adaptation in Work or Work-like Settings (“adaptation”).
11According to the AMA Guides, the impairment rankings are as follows.
Area or aspect of functioning
Class 1: No Impairment
Class 2: Mild Impairment
Class 3: Moderate Impairment
Class 4: Marked Impairment
Class 5: Extreme Impairment
ADLs
No impairment is noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some, but not all, useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning
Social Functioning
Concentration Persistence and Pace
Adaptation in work and work-like settings
12The AMA Guides note that a marked impairment in two or more spheres would be likely to preclude performing complex tasks without special support or assistance, such as that provided in a sheltered environment. An individual who was impaired in all four categories of functioning would be limited in ability to carry out many, but not all complex tasks. Mild and moderate limitations reduce overall performance but do not preclude performance.
Pre-accident function
13When analysing the Applicant’s mental and behavioural impairments, one must understand her functioning at the time of the accident. Her impairments should be measured against her pre-accident function.
14The Applicant was a newly retired person whose passion was the outdoors. She regularly engaged in many outdoor and adventurous pursuits such as hiking, kayaking, skiing, golfing, and gardening. She and her husband lived in their home for about 30 years leading up to the accident, she maintained gardens there and enjoyed spending her time outdoors in the community. Her and her husband also owned a water-access only cottage. She rode motorcycles and snowmobiles and had just embarked on a multi-state motorcycle trip with her husband when the accident occurred and cut that trip short. When she wasn’t outside, she engaged in pursuits such as creating stained-glass art pieces and would go out to dinner with friends at least monthly. This level of activity is the baseline, or the measuring stick, for which to measure the Applicant’s mental and behavioural impairments.
Post-accident Function
15The Applicant is a different person following the accident. Following the accident, she has completely curtailed her adventurous pursuits.
16In testimony, when asked what she does now, the Applicant broke down crying and replied that she walks, that’s it. When asked to expand on that, she advised that she walks 10 to 15 minutes and has a hard limit of 30 minutes but tries to walk daily for her physical and mental health.
17Since the accident, the Applicant and her husband sold their home and their cottage. The house they lived in for 30 years was less suitable for the Applicant – the amenities were split between floors, requiring the Applicant to regularly traverse stairs. Moreover, the Applicant testified that her home harboured negative memories of the accident and her limited recovery and that she no longer wanted to be reminded of those events and moved to a new home. The Applicant and her husband sold their cottage because they stopped going as the trek to it, involving a boat ride and hike up from the water, was too arduous.
18She described a life that is now void of social events. She avoids going out and exposing her facial scar in public and no longer engages in the physical pursuits she used to. In testimony, the Applicant highlighted that she tried some physical pursuits such as kayaking in the years following the accident but could not keep up with the physical demands involved in those activities. Similarly, the Applicant discussed how she considered trying an activity like pottery but that also is too physically demanding for her to truly engage in. The drastic change in her lifestyle has a depressing impact on the Applicant and her relationships – particularly with her husband.
19Dr. K. Abrams, psychiatrist, concluded that the Applicant sustained a marked impairment in the spheres of ADLs, SF, and Adaptation. Dr. C. West, psychologist, concluded that the Applicant sustained at most a class 2, or mild, impairment with respect to all four spheres of function. For the following reasons, I prefer the opinion and report of Dr. Abrams, over Dr. West, and find that the changes in the Applicant’s pre and post accident life have caused her to suffer a catastrophic impairment pursuant to criterion 8 – mental and behavioural disorder.
Credibility
20I find the Applicant to be a credible witness. The Applicant participated in psychological and psychiatric testing and was cross-examined during the hearing and never showed any indication that her reports were untruthful. Her testimony was supported by the other witnesses and was never questioned or impeached at the hearing.
21The applicant produced a valid profile on psychological testing by Dr. Abrams. Dr. Abrams reported and testified that the Applicant produced a valid profile on the validity measures employed during her assessment. Dr. Abrams never reported any findings or made any suggestion indicating that the Applicant is malingering.
22In his report, Dr. West suggested that the Applicant was malingering or over-reporting her psychological symptoms. On the Specific Measure for the Identification/Detection of Malingering, Dr. West reported that the Applicant scored above the acceptable cut-off score for suspected malingering. Remarkably, Dr. West’s testimony was different from his report. In testimony, he unequivocally stated that the Applicant was not malingering. If anything, it is the contradiction between Dr. West’s report and his testimony that gives me the greatest credibility concerns. As I will outline when discussing the Applicant’s impairments, I conclude that the findings in Dr. West’s report are inconsistent with the assessment and Dr. West’s testimony. This is the dominant factor that causes me to prefer Dr. Abrams’ report over the report by Dr. West.
Impairments
23The Applicant now suffers from psychological impairments as a result of the accident. Dr. Abrams diagnosed the Applicant with Somatic Symptom Disorder with Predominant Pain (“SSD”), Persistent; Major Depressive Disorder (“MDD”); and Posttraumatic Stress Disorder (“PTSD”). I find these diagnoses to be consistent with the Applicant’s medical record and presentation as a witness at the hearing.
24I find that Dr. West underdiagnosed the Applicant. Dr. West diagnosed her with an Adjustment Disorder, unspecified; chronic, but concluded that her symptoms are “at most mild.” I find this conclusion to be under-representative of the Applicant’s presentation, not only when compared to Dr. Abrams’ findings, but also when considering the results of the psychometric tests administered by Dr. West. For example, during one test, the BBHI-2, the Applicant’s scoring in depression, anxiety, somatic complaints, and functional complaints were high, very high, moderately high, and very high, respectively. Dr. West has failed to explain how these high scores correlate with symptom levels that are “at most mild.” Dr. West noted in his report that persons with a profile such as the Applicant’s tend to be very concerned about their pain and focused on seeking pain relief and that they see themselves as broadly disabled with respect to work and managing their activities of daily living. Yet, he found that her symptoms were “at most mild.”
25Similar inconsistencies can be observed through the reporting of another psychological test, the PAI, administered by Dr. West. In his report, Dr. West stated that the Applicant had elevated anxiety and anxiety-related disorder scales, but that she did not evidence any clinically significant difficulties with respect to somatic complaints or depression. This is somewhat contradicted by Dr. West’s findings following the administration of the P-3. That test indicated that the Applicant demonstrated pain and somatic complaints equal to the average pain patient. The test findings are also contradictory to the conclusion of the report, which finds that the Applicant does not meet the criteria for a somatic symptom disorder and underdiagnoses her with an adjustment disorder. On the P-3 administered by Dr. West, the Applicant reported levels of anxiety, depression, and pain/somatic complaints equal to the average pain patient, and higher than non-patients.
26Regarding post-traumatic stress disorder, the Applicant experiences heightened arousal and hypervigilance when driving and travelling in a vehicle. She also endorsed other symptoms of post-traumatic stress disorder such as recurrent, intrusive, distressing recollections and flashbacks of the accident. She avoids riding motorcycles. The Applicant’s PTSD symptoms worsened to the point that she and her husband sold her long-term home in an effort to rid herself of the memories of her accident and recovery. Despite this fact, Dr. West concluded that the only PTSD symptoms reported by the Applicant were nightmares which aroused her from sleep, and ruminating thoughts about the accident. Dr. West never came to the conclusion that the Applicant suffers from PTSD, which I find critically undermines the persuasiveness of his report.
27I find that the Applicant’s presentation is consistent with the AMA guides examples for someone who sustains a marked impairment in 3 of the 4 spheres of function. I conclude on the evidence that the Applicant is precluded from performing complex tasks without special support or assistance, like the example suggests.
Activities of Daily Living
28The AMA Guides assess not simply the number of activities that are restricted, but the overall degree of restriction or a combination of restrictions. This area of function includes such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities.
29I find that the Applicant’s SSD and PTSD significantly impede her useful functioning and cause her to suffer a marked impairment in the sphere of ADLs, particularly in the realm of travel, sexual function, sleep, and social and recreational activities. As noted previously, the Applicant was a very active person who enjoyed spending a considerable amount of time outdoors, during all seasons. She cooked meals for her and her husband and she rarely sat down to read or watch TV. Following the accident, she no longer engaged in activities such as hiking, skiing, snowmobiling, and motorcycling. She reports that pain is the predominant factor contributing to her withdrawal of social and recreational activities. Likewise, pain or her fear of reinjury, often associated with SSD, has caused a complete halt in intimacy between the Applicant and her husband, and her ongoing PTSD symptoms significantly limit her ability to travel. The Applicant has not resumed driving motorcycles and no longer rides snowmobiles. She can drive short distances but can’t tolerate long drives and has difficulty travelling as a passenger due to anxiety.
30Dr. Abrams noted that the Applicant’s mood stops her from engaging in daily tasks because she feels stressed and overwhelmed when engaging in those tasks. Her symptoms impact her ability to consistently engage in housekeeping/home organization tasks. She used to be the cook of the family but no longer has the capacity to prepare complicated meals – primarily opting for frozen meals instead and often requiring the assistance of her husband to complete the tasks. The Applicant and Dr. Abrams acknowledged that the Applicant’s left shoulder injury precludes her from engaging in reaching and lifting activities but concluded that her mood was a contributing factor. An example of this is how the Applicant feels depressed due to her inability to care for and style her hair. While her initial impairment relates to the physical injury in her shoulder, it is her depressive and somatic symptoms that preclude her from learning how to complete activities, like styling her hair, with her uninjured arm.
Social Functioning (“SF”)
31The AMA Guides notes that a person’s strength in social functioning may be documented by an individual’s ability or inability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities.
32The Applicant testified that she does not socialize like she did prior to the accident. She attributed this to her scars and her desire to avoid conversations about them. She feels that she would be more social and have better mobility if she was pain free. The Applicant’s testimony is supported by Dr. Abrams report. Dr. Abrams noted the Applicant had difficulty going out in public due to scars on her face and neck, had to be coaxed out of her home, and cancels plans she previously agreed to due to anxiety.
33The Applicant’s spouse corroborated the reports of her experience with anxiety impeding her social functioning. He described her as someone who is overcome with anxiety. To him, she is always afraid and never comfortable. He said that she was previously a glass-half-full person but since the accident looks at life as a glass half-empty. He gave a general example of how he would make plans with her to go out to a restaurant but when it comes time to leave, she refuses to.
34The Applicant’s SSD impacts her ability to engage in the social tasks she previously engaged in. She feels that she no longer has anything in common with her friends because they often participated in leisure and recreational activities such as fishing, hiking, and golfing, prior to the accident. Now, she is unable to engage in those social activities she used to enjoy due to a myriad of issues, including an ongoing fear of reinjury.
35The Applicant’s ability to initiate social contact with others and interact and actively participate in group activities is impeded by her mental and behavioural impairments. The Applicant’s current level of social functioning may not amount to a marked impairment in a typical person. However, the Applicant was an extremely active person prior to the accident and the deficit in her functioning is stark when comparing the Applicant’s pre-accident functioning with her post-accident functioning. The Applicant was a social and outdoorsy person prior to the accident that enjoyed going out with friends and family and spending time with others at home at the cottage. Following the accident, and despite a considerable recovery, the Applicant no longer engages in such social behaviour due to anxiety and pain, which I associate with her SSD. This is further supported in the report by occupational therapist Pritchard, dated July 22, 2021, which noted that the results of the Independent Living Scales Evaluation suggest possible difficulties with social adjustment.
Concentration, Persistence, and Pace (“CPP”)
36The AMA Guides consider a person’s ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings when assessing CPP. The AMA Guides note that this is often assessed in psychological tests that require short-term memory or tasks that must be completed within established time limits.
37The Applicant does not suffer from a marked impairment in CPP and thus, this sphere of functioning is not considered in my analysis.
Adaptation
38The AMA Guides note that adaptation refers to repeated failure to adapt to stressful circumstances and that stress may be viewed objectively and subjectively depending on the circumstances.
39The Applicant’s SSD, MDD, and PTSD significantly impair her ability to adapt to stressful situations and have impeded her ability to move on from her accident-related injuries. According to Dr. Abrams, examples of failures to adapt include withdrawing from situations, experiencing exacerbation of mental dysfunction such as psychological decompensation, difficulties maintaining activities of daily living, problems with social relationships, difficulties completing tasks, problems interacting with supervisors and peers, and reduced stress tolerance.
40The Applicant adapts her activity level to avoid aggravating her physical, emotional, and cognitive symptoms. Her daily regime lacks sustained productivity or structure, and she socially isolates herself. Dr. Abrams found that the Applicant had difficulty with multi-step instructions, was slow to process new information, and would likely be unable to keep up with the physical demands or time constraints in a fast-paced environment.
41The Applicant has failed to adapt to her new reality. Her left shoulder impairment contributes to her physical dysfunction, but she is disproportionally overwhelmed by it and has not managed to find strategies to address her disability and adapt to it. She is similarly overwhelmed by her accident-related scars, to-date, despite the passing of time.
42Dr. Abrams acknowledged that it was difficult to assess the Applicant for the sphere of adaptation because she was retired. However, she noted that the Applicant had retirement goals which she has completely curtailed. She had plans of travelling and spending time outdoors but now her daily life lacks routine. Dr. Abrams also noted that the Applicant isolates herself and no longer leaves the home for recreational activities – something that was a significant part of her life prior to the accident. Similarly, the Applicant and her husband enjoyed creating stained glass windows for several years prior to the accident, but the Applicant has been unable to resume the activity to-date.
43The Applicant’s impairment in adaptation is demonstrated by her inability to resume light physical tasks which she is capable of doing. An example of this is outlined in occupational therapist M. De Noble’s report, dated September 6, 2022. There, it is noted that the Applicant continues to mourn the loss of herself and is overwhelmed by the thought of attempting to grow a vegetable garden and has convinced herself that she would not be physically able to attempt the task.
44Additionally, the Applicant experiences memory issues which impact her ability to adapt to new situations. According to occupational therapist, Pritchard, the Applicant has delays with recall coinciding with reports of increased pain and fatigue. It was noted that this has the potential to impact her ability to remember to budget, pay bills, manage her medications, or safely and accurately engage in complex or time-consuming meal preparation.
45When assessing the significant changes to the Applicant’s function following the accident, the evidence demonstrates that she suffers from a marked impairment in the spheres of ADLs, SF, and adaptation. Accordingly, I find that the Applicant sustained a catastrophic impairment on criterion 8.
Criteria 6 & 7 – Whole Person Impairment
46The Applicant also claimed to have sustained a catastrophic impairment on other criteria. An analysis on those claims is unnecessary having concluded that she sustained a catastrophic impairment under criterion 8.
CONCLUSION
47The Applicant sustained a catastrophic impairment as a result of the subject accident.
Released: September 9, 2024
Brian Norris
Adjudicator