Licence Appeal Tribunal File Number: 23-004653/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:
Yurak Dahi
Applicant
And
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Timothy Porter
APPEARANCES:
For the Applicant:
Yurak Dahi, Applicant
Georgiana Masgras, Counsel
For the Respondent:
Frank Manzon, Representative
Brian Yung, Counsel
Nathan Fabiano, Counsel
Translator:
Ibrahim Mohebi (Dari language; June 11, 2024)
Court Reporters:
Brian Porter (June 10-13, 2024)
Nakita Ivachtchenko (June 14, 2024)
HEARD: by Videoconference:
June 10-14, 2024
OVERVIEW
1Yurak Dahi, the applicant, was involved in an automobile accident on January 29, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied a catastrophic impairment designation by the respondent, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
BACKGROUND
[2] Following the subject accident, the applicant was removed from the MIG and was supported with medical and rehabilitation benefits by the respondent. In 2018 the applicant appealed to the LAT regarding the denial of six treatment plans, one of which was a treatment plan recommending catastrophic impairment (“CAT”) assessments which had been denied in January of 2018. An order approving one medical benefit treatment plan recommending various physical therapies was issued as a result. The recommended CAT assessment was not approved, and the order noted that “scant evidence” was submitted to support the reasonableness and necessity of a CAT assessment. Of note, no OCF-19 had been submitted and the recommendation for CAT assessment came from a treating chiropractor.
[3] In 2021 the applicant appealed to the LAT regarding CAT designation based on Criterion 7. At the beginning of that hearing the applicant attempted to add Criterion 8 as the basis on which the applicant was seeking a CAT designation. Due to the late nature of the request for a change to the issues in dispute the appeal was not amended, and the hearing proceeded based on a claim under Criterion 7. The applicant was not successful in that appeal and the Order notes that on a balance of probabilities that the unrelated degeneration of her spine and subsequent surgery are the cause of her post accident physical impairments.
4The applicant has an extensive physical and mental health history: following the accident it was discovered that the applicant had a gradual, degeneration of her spine which resulted in surgery in 2018; treating and consulting physicians have related the degenerative spinal stenosis to musculoskeletal impairments that arose following the subject accident. The applicant’s pre-existing, “life-long” depression, which is exacerbated by psycho-social stressors, is well documented and was noted as “worsening” to the family physician in the days prior to the accident.
5In addition, medical records and self-reports of the applicant outline abuse as a child in Afghanistan and an unwanted, forced pre-arranged marriage prior to arriving in Canada. Prior to her divorce the applicant experienced a great deal of marital stress as her husband had gambling issues and suffered an injury at work. The applicant also had a difficult second pregnancy with ordered bed rest, and some years after the birth, this child was diagnosed with autism.
6When the hearing was scheduled to begin the applicant was not present. A recess was taken to determine the whereabouts of the applicant. After several hours the applicant’s representative sent a delegate of hers to the applicant’s residence to assist the applicant in engaging in the hearing. With no audio apparent but a video connection to the hearing, the representative’s delegate entered the applicant’s residence. The delegate walked through the first level of the home and then upstairs, looking in several rooms, in the washroom the applicant was located and appeared to be in some distress and was being supported by her current husband. An ambulance was contacted from within the residence and the hearing was recessed until the following morning. The next morning the applicant appeared and participated fully in the hearing.
ISSUES
7The issue in dispute is:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
RESULT
8For the reasons that follow, I find that the applicant has not sustained a catastrophic impairment as defined by the Schedule.
ANALYSIS
Has the applicant sustained a Catastrophic Impairment as defined by the Schedule?
9Catastrophic impairment (“CAT”) is a legal test of impairment under s. 3(1)(8) of the Schedule and in accordance with the guidance provided by the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”). The applicant is seeking a designation under Criterion 8 which is exclusively about mental and behavioural impairments and physical impairments are not considered. Chapter 14 of the Guides sets out four spheres of functioning and the classification of impairments as represented in the chart below:
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
Activities of Daily Living
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
Adaption (In a work-like setting)
10For an accident that occurred under this version of the Schedule an insured person must prove that they sustained one Class 4 “Marked” or Class 5 “Extreme” impairment in any one of the four spheres of functioning to be determined catastrophically impaired.
11The applicant has the burden of proving on a balance of probabilities that she is catastrophically impaired as a result of the accident.
12The applicant submits that as a result of the accident she is catastrophically impaired based on the descriptive criteria set out in Chapter 14 of the Guides. She focused on Criterion 8 because she argued that she sustained a moderate to marked impairment (Class 3-4) in the domain of concentration, persistence and pace, and a marked impairment (Class 4) in adaptation, as represented in the chart below:
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
Activities of Daily Living
Social Functioning
Concentration, Persistence and Pace
Moderate Impairment
Marked Impairment
Adaption (In a work-like setting)
Marked Impairment
13The respondent submits that the applicant had documented pre-existing, psychiatric impairments, which were likely exacerbated by the accident for a period, and which resolved to the pre-accident levels by 2016, questioning the causation of any limitation in her mental and behavioural functionality. Further, the respondent asserts that the applicant’s limitations are mostly physical and related to surgery for a degenerative disc disease that is completely unrelated to the subject accident. The respondent denies that the applicant is catastrophically impaired under Criterion 8 and submits that she has mild impairments in the areas of concentration, persistence and pace and adaptation, as represented in the chart below:
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
Activities of Daily Living
Social Functioning
Concentration, Persistence and Pace
Mild Impairment
Adaption (In a work-like setting)
Mild Impairment
14The applicant relies on the clinical notes and records of Dr. Hounam (psychologist) and Dr. Beland (family physician); the s. 25 examination reports from March 2021 of Dr. Parekh (psychiatrist) and Julian Amchislavsky (OT); the cross-examination of Dr. Chandrasena (psychiatrist) and the testimony of the applicant. The applicant called only herself during the hearing and relied on the submitted reports and cross-examination of witnesses called by the respondent.
15The respondent relies on the clinical notes and records of Dr. Hounam (psychologist), Dr. Beland (family physician) and Grand River Hospital; the applicant’s school records from Medix college; and s. 44 reports of January 2024 by S. Woods (OT) and Dr. Chandrasena (psychiatrist). The respondent also impugns the applicant’s evidence during cross-examination of the applicant and challenges the s.25 report of Dr. Parekh (psychiatrist) and Julian Amchislavsky (OT).
16Testimony from the applicant was not particularly supportive of a finding of catastrophic impairment. During testimony, limited evidence outside of observed behaviour was supplied by the applicant that she suffers a marked impairment, and her listed symptoms were primarily physical. I provide her testimony a slightly diminished weight because, the applicant relied on a translator at the hearing that the respondent submitted was not necessary due to the applicant’s English language proficiency. Throughout the hearing the respondent demonstrated that in all other settings the applicant speaks and understands English. For example, the respondent produced the applicant’s resume which lists her as an English as a Second Language teacher. Further, the respondent provided the applicant’s Medix College transcript, where she earned an 86% grade point average. In addition, the respondent pointed out throughout cross examinations that no evaluator, written test administered, therapist or doctor seen over the previous nine years required any translation to communicate effectively with the applicant. On at least one occasion the translator was stopped by the applicant, who, according to the translator, corrected the English translation of the translator. It may be that the applicant is both proficient in English as a second language and more comfortable in formal settings to have a translation. The production of the resume in particular raises some concern around the applicant’s veracity: the respondent submits that the applicant is proficient in English and is performing for the Tribunal; the applicant submits that the resume notation was to assist in locating employment and is required to convince employers that she can speak English. The resume and responses cause me to further question the veracity of the applicant’s testimony as the two possible explanations on offer are either using the translator performatively or lying to employers.
17I give little weight to OT Julian Amchislavsky’s s. 25 report from 2015 because he was unsure of how long he spent with the applicant on a single assessment, performed no objective testing of cognition, stress anxiety or driving anxiety, while relying heavily on the applicant’s self reporting.
18I place a great deal of weight on the report and testimony by OT Woods because in 2023 OT Woods assessed the applicant over four hours on two occasions approximately two weeks apart. In her s. 44 reports, the OT outlines an extensive medical file review, the results of her interview and a number of subjective and objective tests, as well as an in-home and separate community-based situational test.
19I give a diminished weight to the s. 25 report of Dr. Parekh from March 2021 because he does not undertake any objective testing, is over-reliant on the subjective self-reports of the applicant and he failed to consider the CNRs of psychologist Hounam. In particular, the “psychiatric history” section of the report does not list a history with depression, other than an episode of post-partum depression after the birth of her second child. I find this is contrary to many clinical notes and records reviewed by the assessor and I will note that pre-existing depression and psychiatric difficulties are mentioned within the body of the report. The “psychiatric history” section also glosses over a noted prior suicide attempt by omitting the word suicide from the transcribed note of the report on the incident. Further, the applicant also denied receiving psychiatric care or hospitalization and Dr. Parekh did not challenge or clarify his understanding of these self-reports as was done in the “medical history” section with regard to self-reports of back pain. I find these omissions are significant.
20I prefer the reports and opinions submitted by Dr. Chandresena in his s. 44 report of 2024 and assign it greater weight because, in addition to a fulsome file review and interview, the doctor conducted a number of objective, cognitive tests with the applicant. Dr. Chandresena drew from OT Woods’ multidisciplinary report, multiple sources of CNRs and his own testing to paint a fulsome view of the applicant and the ups and downs of her life over the nine years since this accident.
Concentration, persistence and pace (“CPP”)
21Within this sphere of function, the individual’s ability to perform daily tasks and stay focussed long enough to complete the tasks within a given timeframe are assessed.
22During testimony, I was not able to glean very much in the way of pre-accident function and most of the post-accident functional complaints listed were primarily physical. When asked about medications she was taking the applicant responded by dumping a small box of pill bottles on a low table in front of herself. Although the hearing went into recess on day one based on the presentation of the applicant, the applicant was able to attend the entirety of day two proceedings and was able to remain engaged, with reasonable breaks and some physical accommodations during in-chief and cross examination; which suggests, in my view, that the applicant’s CPP is not moderately or markedly impaired.
23The psychological symptoms raised by the applicant as examples of impairments in support of CAT designation, such as suicidal ideation and depression, are noted symptoms in the CNRs of Dr. Beland (dated January 3, January 16 and May 17, 2012, December 2, 2013, February 24 and August 14, 2014, and January 28, 2015) and psychologist Hounam (dated July 15, August 12, September 17, September 23 and October 14, 2014), all before the accident. In my view, the applicant’s testimony was not supportive of a designation of moderate to marked impairment in the sphere of CPP because the impairments identified were present long before the subject accident.
24OT Julian Amchislavsky’s s. 25 report of 2015 was given diminished weight. A portion of the OT’s assessment is focused on a situational assessment wherein the applicant is requested to collect items from a grocery store on a disordered list that contained some unattainable items. The OT then observes the approach and progress of the applicant to assess her CPP. The applicant aborted the test after collecting only a few items on the list. The applicant reported that she was aborting the test due to physical pain. The OT in his report utilized this short sample of function to conclude that her “mechanical" following of the listed items (which was disordered compared to the location of items in the store), rather than taking the time to organize a disorganized list, provided insight that she had an impairment in the area of CPP. The OT was unsure of exactly how long the applicant had persisted in the task but estimated that the applicant had completed a quarter of the list. In my opinion the aborted situational component of the OT’s process was so short that it could not have provided adequate information on which to base an assessment of function. On cross examination the OT confirmed that the situational test is extremely difficult to complete and only 3 in 1000 people would be estimated to be able to complete the task in 30 minutes. I find the cursory testing provided by the OT is far too short with far too little completed to provide for an assessment seeking to designate the applicant as catastrophically impaired. As the test was terminated by the applicant on the basis of physical pain, as opposed to frustration or anxiety, provides no reliable insights on which to base my findings.
25OT Amchislavsky also accepted written submissions in place of collateral interviews and in the letters from the applicant’s mother, as well as the ex-husband, there are statements that the applicant has not been the same since the accident in December 2018, which is more than three years following the subject accident. This timeframe, however, coincides with the date of the applicant’s anterior cervical discectomy and fusion surgery of December 4, 2018, which was required as a result of a pre-existing degenerative disease discovered post accident. As this date appears in both written submissions it cannot be viewed as a simple error having gotten both the month and year of the subject accident in January 2015 wrong. On a balance of probabilities, I find it most likely that this is a significant date in the health of the applicant and a time at which the applicant was notably changed from prior observed behaviour. Critically, this change does not tether to the subject accident.
26I prefer the opinion of OT Woods found in her s. 44 report of 2024 because the formal cognitive testing conducted by OT Woods provides additional data points and information outside of self-reported symptomology of the applicant. I place greater weight on objective testing as opposed to subjective self-reporting. Of note, it is OT Woods’ opinion that the applicant completed tasks from her community-based situational test without being distracted by conversation with the assessor. In my view, this is an important skill required for CPP and suggests on a balance of probabilities that the applicant does not have a moderate to marked impairment in this sphere as her performance in the task was not compromised by attempts at distraction.
27OT Woods’ testimony and reports of the applicant’s behaviour during the community-based situational test challenged the applicant’s credibility. The community-based situational test was aborted at the last task by the applicant as she proceeded to squat and then sit on the floor of the Walmart and told an employee she had fallen. This particular incident causes me to question the credibility of the applicant because she was witnessed not to have fallen but reported that she had. All reports of symptoms during the aborted test, which ended in the applicant being taken by ambulance to hospital, were physical in nature.
28In March of 2021, Dr. Parekh assessed the applicant. Dr. Parekh’s s. 25 report outlines his opinion that the applicant has a moderate to marked impairment in the spheres of concentration, persistence and pace. As noted earlier I give diminished weight to the report by Dr. Parekh. Dr. Parekh did not conduct formal cognitive testing and relied on self-reports of the applicant and the supplied medical documentation. It is the assessor’s opinion that when the impact of her physical symptoms and stress on her emotional state is considered, the applicant is CPP impaired in the following abilities:
i. Maintaining attention and concentration for extended periods.
ii. Understanding, remembering and carrying out instructions.
iii. Concentrating during distractions.
iv. Planning, initiating and organizing task completion.
v. Performing at a consistent pace without an unreasonable number/duration of rest periods.
vi. Multi-tasking.
29The assessment by Dr. Parekh raises more questions than answers. For example, the list of impaired abilities in this report is missing any specific examples that demonstrate the impairment. I contrast the findings of Dr. Parekh with the findings of OT Woods and highlight that the OT assessment notes an ability to concentrate during distractions during the community-based situational test. The community-based situation test also tests the applicant’s ability to understand, remember and carry out instructions. Without robust correlated examples and in the face of contradictory evidence I find that the assessment is insufficient to discharge the burden and prove on a balance of probabilities that the applicant has suffered a moderate to marked impairment in the sphere of CPP.
30Dr. Chandresena ultimately found that the applicant had a pre-existing mental health issue that likely began with a traumatic childhood and was significantly exacerbated by a poor and eventually broken-down intimate partner relationship and post partum issues as well as significant tests with her son who has acute challenges. Going further, Dr. Chandresena submits that the subject accident likely exacerbated her mental health issues but that she showed significant progress and ability to deal with stressors over time. In particular, he highlights the applicant graduating from college, completing a co-op placement, obtaining skilled employment, divorcing her husband, undergoing significant back surgery, taking several international trips and meeting and marrying a second husband, as evidence of her improved psychological functional abilities. Finally, Dr. Chandresena pointed to physical pain due to unrelated degenerative disc disease, significant work events, intimate partner issues and child rearing challenges as the contributors to the current presentation.
31For these reasons, I prefer the respondent’s evidence and find that the applicant has not discharged her burden to prove on a balance of probabilities that she has a moderate to marked impairment in the area of CPP.
ADAPTATION
32In this sphere of function an individual’s capacity to adapt to stressful circumstances is assessed. The adaptation sphere is focused on work or work-like settings in the community. The ability to adapt to stressful situations is focused on stressors common to the work environment, including attendance, making decisions, scheduling, completing tasks and interacting with supervisors and peers.
33Dr. Parekh begins his assessment of the applicant’s ability to adapt by outlining that the applicant attempted to return to work following the accident in 2016, was unsuccessful “due to physical and psychiatric difficulties” and then went to college in 2016. The return-to-work attempt is not corroborated by any other evidence I was directed to. Putting this aside, the reasons offered for the unsuccessful attempt seem to be directly challenged by the switch to college attendance, which is an arguably more complex and stressful situation than work as a machine operator. I applaud the applicant for the fortitude in attending college later in life and increasing her employment skills, however, in my opinion this is an example of an ability to adapt.
34As Dr. Parekh continues in his assessment of the applicant’s ability to adapt and recites a number of self reports from the applicant, such as poor memory and concentration and impaired multi-tasking ability, that are then followed with observed behavioural examples from the assessment, some of which counter the self reports. For example, Dr. Parekh states, “there were no noted difficulties with memory retrieval” and that “she was able to respond to questions in a normal timeframe”. There were also examples within this section which would suggest impairment, such as, “she did not demonstrate the capacity to maintain work appropriate engagement and emotional demeanour during the …assessment”. However, a statement such as this with no examples is countered by other sections of the report where the assessor states, “Ms. Dahi arrived on time… although breaks were offered to her during the assessment, she did not request a break. She had a good working knowledge of the English language… was polite, friendly, and respectful throughout the assessment… appropriately dressed for the weather.” These statements appear to directly challenge the later statements in relation to the applicant’s ability to adapt in work and work-like settings.
35Dr. Parekh assesses the applicant has having impairment in the following abilities:
i. Maintaining work-appropriate orientation to person, place and activity.
ii. Performing activities within a Schedule, maintain regular attendance, and being punctual within customary tolerances.
iii. Sustaining an ordinary routine without special supervision.
iv. Use of judgement in making simple decisions.
v. Accepting instructions and responding appropriately to feedback.
vi. Working with accuracy.
vii. Maintaining appropriate sustained attention/ concentration on a reasonable continuous basis.
viii. Coping with time pressures and stressors.
ix. Preforming activity in coordination with or proximity to other without being distracted by them.
x. Maintaining appropriate behaviours, communication and emotional control.
36I find that there is insufficient detail to support Dr. Parekh’s finding of a marked impairment in the sphere of adaptation. The assessment does not provide examples to support the assertion that the applicant is impaired in the above noted abilities and the evidence before the Tribunal refutes some elements of the applicant’s purported impairments. For example, in the year following the accident in 2016, the applicant attended college and received a grade point average of 86% and demonstrated attendance of 98.3%, clearly sustaining an academic workload while caring for her children and separating from her husband. This particular time frame, a little more than a year following the accident, is quite important as the applicant demonstrated a great ability to cope with time pressures and stressors. Further, her school performance also strongly suggests she was not having difficulties with appropriate behaviours, communication and emotional control, accepting instructions and responding appropriately to feedback, maintaining regular attendance, sustaining an ordinary routine without special supervision and working with accuracy. I find there is no correlation between the findings of Dr. Parekh and this time period more than one year following the accident.
37Finally, Dr. Parekh does not provide adequate evidence to support his opinion that the subject accident is the cause of the applicant’s current presentation. Dr. Parekh summarizes that the applicant’s pre-occupation with physical symptoms as well as depressive symptoms have compounded her psychiatric impairments. Dr. Parekh goes further and relates that these diagnoses are common accident-related diagnoses and that in his opinion the AMA Guides causation test is met. In exploring the causation assessment of Dr. Parekh, I find his assessment does not meet the standard for CAT. It has been established that the depressive symptoms are pre-existing and the physical symptoms that pre-occupy the applicant have not been established as being caused by the accident because the pre-existing degenerative spinal issue and subsequent surgery are just as likely to be the cause of the physical symptoms. In my opinion Dr. Parekh does not sufficiently determine that the accident is the cause of the applicant’s purported impairments.
38The assessment by Dr. Chandrasena in the area of adaptation is as a mild impairment. The report highlights that the applicant continues to provide care for her children, the youngest of which is autistic and requires a significant level of care; she runs the household and finances of the family, she is driving and has attended college post-accident. Dr. Chandrasena also draws from the psychiatric report of Dr. Sharma from February 2016, when he highlights that Dr. Sharma found that the applicant’s post-traumatic stress disorder was currently in remission, the applicant had some difficulty in social, occupation or school functioning and that her household was functioning pretty well with some meaningful interpersonal relationships. Dr. Chandrasena highlights that the applicant does not meet the criteria for a marked impairment as per the AMA Guides, her symptoms had improved post accident and it is his opinion that any worsening of symptoms or functionality from this point was due to psychosocial stressors that are unrelated to the accident.
39Dr. Chandrasena highlights that “it is not the natural course of an illness following an accident to recover functionality in socialization, concentration, activities of daily living… and show remarkable adaptation to ongoing psychosocial stressors in the home situation with a significantly autistic child and then to develop exacerbation of the Major Depressive Disorder, as has happened in this case… her present impairments cannot be attributed to the subject accident.” The assessor continues in this line of explanation and highlights that the chronology of clinical notes and records demonstrates that the exacerbation of the applicant’s depressive disorder occurred more than a year following the accident and is more closely linked to psychosocial stressors such as financial, familial and marital stress, which cannot be attributed to the subject accident.
40I find that the applicant has not established, on a balance of probabilities, that she is catastrophically impaired under Criterion 8 because the applicant has not established that she has a moderate to marked impairment (Class 3-4) in the domain of concentration, persistence and pace and has not established that she has a marked impairment (Class 4) in adaptation. I prefer the opinion and reports of the respondent with regard to the ratings in both CPP and Adaptation because of the examples provided, the objective testing undertaken and the number of times the applicant was seen by the respondent’s assessors. In addition, causation is in question, and I favour the opinion of the respondent’s assessors as my review of the evidence matches their opinion and theory. The applicant is driving, managing the household, managing the finances, caring for a child with autism, has travelled internationally more than once and at least once with the children, attended college with excellent grades and attendance, has divorced her husband and re-married. I find that these accomplishments demonstrate adaptability and CPP on a sustained basis which is not supportive of a finding of marked or extreme impairment.
41I find that the applicant, on a balance of probabilities, has not sustained a catastrophic impairment, as a result of the subject accident, as defined by the Schedule.
ORDER
42I find that the applicant has not sustained a catastrophic impairment as defined by the Schedule.
Released: September 18, 2024
Timothy Porter
Adjudicator