Kohl v. Intact Insurance, 2024 CanLII 92077

Citation: Kohl v Intact Insurance, 2024 ONLAT 23-003540/AABS - A

Licence Appeal Tribunal File Number: 23-003540/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:

Danielle Kohl

Applicant

and

Intact Insurance

Respondent

AMENDED DECISION

PANEL:

Tami Cogan, Adjudicator

Mary Henein Thorn, Adjudicator

APPEARANCES:

For the Applicant:

Michael Henry, Counsel

For the Respondent:

Shivani Meta Mehta, Counsel

Mohamed R. Hashim, Counsel

Hearing Reporter:

Guido Riccioni

Heard by Videoconference:

July 2, 2024

OVERVIEW

1Danielle Kohl, the applicant, was involved in an automobile accident on March 1, 2019, 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, Intact Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2At the start of the hearing the applicant advised that all issues with the exception of the substantive issue below has been resolved.

SUBSTANTIVE ISSUES

3The issue in dispute is:

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

RESULT

4We find the applicant did not sustain a catastrophic impairment as per the Schedule.

PROCEDURAL ISSUE – Request to Convert Hearing Format

5At the hearing, the parties requested that the hearing format be converted to a written hearing. The parties narrowed down the issues in dispute such that the only issue remaining was a catastrophic impairment (“CAT”) determination. With a single issue in dispute, the parties submit that it is more efficient to have the matter heard in writing and they will each rely on their expert reports.

6The parties’ request to convert the hearing to a written hearing was denied. As of the date of the request, the file was 416 days old, and converting to the hearing format to a written hearing would unduly delay the proceedings. Upon hearing submissions from both parties, we are also not persuaded that a written hearing would be the most efficient. The Tribunal’s operational considerations have been taken into account. This matter has been scheduled for a videoconference hearing and resources have been allocated for this time and to proceed today is the most efficient use of the Tribunal’s resources.

ANALYSIS

Catastrophic Impairment Under Criterion 8

7We find that the applicant has not established, on a balance of probabilities, that she has sustained a catastrophic impairment under criterion 8 as a result of the accident. The applicant has not established that she has a marked (class 4) or extreme (class 5) impairment in any of the areas of function.

8The applicant is seeking a catastrophic impairment designation under section 3.1(1), paragraph 8 of the Schedule (“Criterion 8”). The applicant contends that her impairments and functional limitations are caused by the subject accident. She acknowledges that she had prior impairments, however, she submits the accident triggered her pre-existing conditions and she relies on the catastrophic report of Dr. Zohan Waisman, psychiatrist in support of her position. In the applicant’s opinion, it is well settled that leading up to the accident her life had turned around and she was doing much better, but the accident has now left her catastrophically impaired. To validate her claim, the applicant underwent multidisciplinary catastrophic assessments with Dr. Waisman, and Alexander Popper, occupational therapist.

9The respondent submits that although the applicant may have some mild to moderate impairments post-accident, she does not meet the level of catastrophic impairment. She is still able to function, and her life is continuing to improve post-accident. She is maintaining her sobriety, has custody of her children, and overall, she is functioning on a daily basis. The applicant underwent Insurer’s Examination assessments for catastrophic impairment with Dr. Curt West, psychologist, and Lyndsey Dennis, occupational therapist. They concluded that there may be mild to moderate impairments but opined that the applicant did not sustain a catastrophic impairment.

10The test to determine whether the applicant has sustained a catastrophic impairment is a legal one and not a medical one. See: Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras. 29-30.

11An insured person is catastrophically impaired under Criterion 8 if they prove on a balance of probabilities that an accident causes them to sustain three or more marked (Class 4) impairments or one extreme (Class 5) impairment in the areas of function due to mental or behavioural disorders.

12These impairments are assessed under Chapter 14 of the 4th Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”). Impairments are classified according to how seriously they affect a person’s useful daily function in four broad, overlapping, activity categories, or “domains” using word descriptions in a five category scale that range from no impairment to extreme impairment. It is not the category label that has to be assessed, but rather the language in the descriptions. Each of the four domains of functioning, classes of impairment, and rating criteria are set out in the following table from Chapter 14 of the Guides at page 301:

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
Adaptation (Deterioration in a work-like setting)

13The catastrophic assessors gave the following ratings:

Sphere	Dr. Waisman	Dr. West
Activities of Daily Living	Class 3	Class 2
Social Functioning	Class 4	Class 2
Concentration, Persistence, and Pace	Class 4	Class 2
Adaptation	Class 4	Class 3

Activities of Daily Living (“ADL”)

14Both assessors agree that the applicant’s impairment in the sphere of activities of daily living, is below a level of marked impairment. We agree the applicant has not sustained a marked impairment in the sphere of activities of daily living. The applicant does not assert that she has a class 5 (extreme) impairment.

15Therefore, in order to be deemed catastrophically impaired, the applicant must meet the burden that she has a class 4 impairment in the spheres of social functioning, concentration, persistence, and pace, as well as adaptation as a result of the accident.

Social Functioning

16We find the applicant has not sustained a class 4 or 5 level of impairment in the domain of social functioning.

17The factors to consider under the social functioning domain are an individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others such as family members, friends, neighbours, grocery clerks, lenders, etc. Impaired social functioning may be demonstrated by history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. An individual’s ability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities are seen as strengths in social functioning.

18The assessors agreed there is an impairment in the area of social functioning but disagreed on the levels. Dr. Waisman opined the applicant had a marked (class 4) impairment and Dr. West finds there is a mild (class 2) impairment.

19Dr. Waisman opined in his report dated July 27, 2023, that the applicant clearly experienced a traumatic response to the accident and exhibits a number of avoidant behaviours. Further, Dr. Waisman stated that prior to the accident she was quite active but is presently not active at all. He concludes that the quality of her relationships have deteriorated, and she has an inability to maintain social composure in stressful situations. Dr. Waisman opined that the degree of interference with her social functioning rose to a level of a class 4 impairment.

20We disagree with Dr. Waisman’s conclusion based on the applicant’s own reporting. We heard evidence that the applicant advised her assessors and treatment providers she attends Alcoholics Anonymous meetings regularly post-accident as they are her primary social support, and she speaks to people from there a minimum of once daily. She speaks to a close friend once per week, her oldest daughter on a daily basis, and one of her sisters each day. She also reported to Ms. Dennis, occupational therapist, that she is participating more in baking projects with her daughter and, although she is sometimes irritable, she is able to maintain an ongoing relationship with her partner, her children, and her mother. She also reported that she had attended a toy drive in the morning before her assessment. During Ms. Dennis’ assessment, the applicant received a call to take fresh socks and shoes for her daughter to her school and she was prepared to do so. We find these interactions demonstrate that the applicant is able to maintain multiple close and distant relationships with the people around her. The applicant further reported that she does not have problems getting along with service providers, but that her poor memory, depressed mood and emotional dysregulation continue to impact her relationship with her partner and her children. The applicant also reported that when she is overstimulated or in pain, she can become irritated and upset. We note that she is maintaining relationships.

21Additionally, during Ms. Dennis’s assessment, the applicant:

1. Was observed interacting briefly with someone she knew; and
2. During her visit to the store, an error was made at the self-check out scanning. In response, the applicant was observed as being pleasant during that interaction and handled it well, according to Ms. Dennis.

22We find these observations by Ms. Dennis also support the finding that the applicant is able to maintain appropriate interactions with people.

23Based on her subjective reporting and the observations of Ms. Dennis, we agree with Dr. West’s findings that the applicant has suffered an impairment in the social functioning domain; however, the applicant’s impairment is not to a level that significantly impedes useful functioning. She is able to live with her children, participate in community activities such as the toy drive, maintain relationships, continues with her sobriety, and attends regular Alcoholics Anonymous meetings. We find that although she now may avoid restaurants due to the amount of stimulation and she may grocery shop during quieter times, her impairments are not consistent with someone whose impairments “significantly impede useful functioning” in this sphere, or worse.

24In further support that the applicant has not sustained a catastrophic impairment we note the applicant also reported to Dr. Peter Judge, psychologist, in his report, dated March 25, 2021, under social functioning that her social situation is “alright.” She also reports that due to the COVID-19 pandemic, she was unable to see her friends but that she “talks to them all of the time.” She also reported that her relationship with her mother was “okay,” and that her relationship with her sister was “good.”

25We find that the applicant does not meet the level of a class 4 or class 5 impairment in the area of social functioning.

26Having found that the applicant does not have a class 4 impairment in the social functioning domain and there is no evidence that the applicant has a class 4 impairment or higher in the activities of daily living domain, this is sufficient to find that the applicant has not sustained a catastrophic impairment under Criterion 8. However, for completeness, we will consider the last two domains.

Concentration, Persistence, and Pace (“CPP”)

27We find the applicant has not sustained a class 4 or class 5 level of impairment in the domain of concentration, persistence, and pace.

28The factors to consider under the CPP domain relate to task completion and refer to the ability to sustain focussed attention long enough to permit the timely completion of tasks commonly found in activities of daily living or work settings. Deficiencies in CPP are best noted from previous work attempts or from observations in work-like settings. Strengths and weaknesses in mental concentration may be described in terms of frequency of errors, the time it takes to complete the task, and the extent to which assistance is required to complete the task.

29Dr. Waisman’s opinion is largely based on his review of Mr. Popper’s occupational therapy report and Dr. Judge’s neuropsychological report that the applicant sustained a class 4 impairment in the CPP domain.

30We prefer the report of Dr. West dated February 2, 2024 as he has provided a more in-depth analysis using specific examples. He opined that the applicant does have a mild (class 2) impairment using driving as an example. The applicant continues to drive on public roadways, which Dr. West considers one of, if not the most, demanding of all tasks from both a neurocognitive and a mental health perspective. In support of Dr. West’s opinion, and found within Dr. Judge’s report, the applicant has in the last two years driven to Ottawa, albeit not often.

31We agree with Dr. West’s analysis that to be able to drive for a long distance certainly takes a high level of concentration, persistence, and pace especially when driving approximately two hours on the highway to Ottawa.

32Throughout her subjective reporting to many treatment professionals and assessors, the applicant has also indicated that she has maintained her sobriety post-accident.

33We agree with the respondent that to be able to maintain sobriety takes daily exercise of persistence and focus. It takes determination to attend AA meetings on a regular basis.

34Ms. Dennis noted in her occupational therapy report that the applicant participated in a clinical interview which lasted 2 hours and 30 minutes. The applicant was unable to complete the self-report questionnaires because she received a call from her daughter’s school and was required to drop off shoes and dry socks. The report indicates that throughout these interviews the applicant remained engaged and attentive. She did require some redirection and repetition of questions. We find this evidence supports a level of impairment which is compatible with some but not all useful functioning but is not consistent with “significant impediment to useful function”. The applicant was also given a list of functional tasks to complete, which included making a list, meal planning, grocery shopping, vacuuming, and walking. The task completion, while accomplished, was observed to be scattered. The applicant was unable to sequence tasks and had difficulty completing one task at a time. We agree with Dr. West that to complete the task in a minimally scattered manner accounts for a mild impairment. The fact that the applicant was able to complete the tasks albeit with some limitations, be interviewed for over two hours, and multitask, shows that her level of impairment is not consistent with a marked (class 4) impairment as Dr. Waisman opined.

35We agree with the respondent in finding the applicant has not met her burden on a balance of probabilities that she has sustained a marked (class 4) impairment in the area of concentration, persistence, and pace.

Adaption

36We find the applicant has not sustained a class 4 or class 5 level of impairment in the domain of adaptation.

37Dr. Waisman and Dr. West found the applicant had some level of difficulty with adaption. Dr. Waisman opined her impairment significantly impedes useful functioning (class 4), and Dr. West opined the applicant has an impairment compatible with some, but not all useful functioning (class 3).

38The respondent agrees there is some level of impairment but points to life situations where the applicant has clearly been able to adapt and overcome the stressors in her life.

39The factors to consider under the adaptation include the repeated failure to adapt to stressful, work or work-like circumstances. Under stressful circumstances, an individual may withdraw from the situation or experience exacerbation signs and symptoms of a mental disorder. That is, the individual would decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks and interacting with supervisors and peers.

40Although Dr. Waisman opined that the applicant had a class 4 impairment in this domain, we are left uncertain as to how he came to this determination. He does not provide any examples of adaptation or lack of adaptation, nor does he consider the applicant’s overall current life circumstances and how it affects her ability to adapt.

41In the January 8, 2019 and February 27, 2019 clinical notes and records of Dr. Primeau, the applicant’s family physician, just a few months before the accident, Dr. Primeau notes that the applicant did not have her children in her custody per a court order, but that she was to pick up and drop the children off at her ex-husband’s house weekly.

42Between early 2019 and the time of this hearing, the applicant has been able to work through the court system, meet the demands of the Children’s Aid Society, and obtain and maintain custody of her three children. Post-accident, two if not all three children are currently living with the applicant. This clearly speaks to the applicant’s ability to adapt in stressful situations.

43In the clinical notes and records of Pembroke Regional Hospital, dated February 24, 2023, it is indicated that the applicant has been dealing with a number of significant ongoing family issues. During this crisis the applicant reported that she has remained sober and had not smoked cigarettes. The doctor indicated she was not psychotic or suicidal and she was reported to have good insight.

44Given the applicant’s proven ability to cope and manage throughout these difficult situations, weighed against the findings of both assessors, we prefer the opinion of Dr. West. We do not find the applicant has a marked (class 4) impairment in the area of adaption.

Conclusion and ORDER

45For all the reasons set out above, we find that the applicant has not proven on a balance of probabilities that she sustained a catastrophic impairment under Criterion 8 in accordance with the Schedule as a result of the accident.

46The application is dismissed.