Licence Appeal Tribunal File Number: 23-006134/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:
Samira Ahmadi
Applicant
And
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Michael Beauchesne
APPEARANCES:
For the Applicant: Adam Asgarali, Counsel
For the Respondent: Murleen McLean, Counsel
Court Reporter: Micha Salazar
HEARD: by Videoconference: August 12, 2024
OVERVIEW
1Samira Ahmadi (the “applicant”) was involved in an automobile accident on August 5, 2018, 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 Intact Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2At the start of the hearing, the parties advised they would only make oral submissions because no witnesses were scheduled to appear. The applicant’s counsel further advised he had instructions to withdraw all issues in dispute that are listed in the case conference report and order for this matter, save for whether the applicant has suffered a catastrophic impairment. The parties then agreed their submissions on catastrophic impairment would pertain only to Criteria 7 and 8.
ISSUE
3The issue in dispute is:
i. Has the applicant sustained a catastrophic impairment as defined in the Schedule?
RESULT
4The applicant has not demonstrated she is catastrophically impaired as defined by the Schedule.
ANALYSIS
What must the applicant prove?
5To prove catastrophic impairment under Criterion 7, the applicant must demonstrate a mental or behavioural impairment (excluding traumatic brain injury) that results in 55 percent or more impairment of her whole person (“WPI”). To do this, the applicant must first show her mental or behavioural impairment is determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the 2008 American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, (the “2008 Guides”). The applicant must then combine the resulting impairment score with a physical impairment described in paragraph 6—and in accordance with the combining requirements set out in the Combined Values Table (“CVT”)—of the 1993 American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, (the “1993 Guides”).
6To prove catastrophic impairment under Criterion 8, the applicant must show a Class 4 (“marked”) impairment that significantly impedes all useful function in at least three areas of functioning—or a Class 5 (“extreme”) impairment that precludes (i.e., is not compatible with) useful function in at least one area of functioning—due to a mental or behavioural disorder as a result of the accident. Those four areas of functioning are presented in Chapter 14 of the 1993 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”).
7The 1993 Guides set out a three-stage process for evaluating catastrophic impairment based on mental or behavioural disorder. The first stage is diagnosis of any mental disorders. In this case, both parties agree the applicant has a mental and behavioural disorder, although the diagnoses differ. 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 at least three areas of function. The respondent’s assessor similarly agrees the applicant is markedly impaired in these areas but asserts this was the case prior to the accident.
Criterion 7
8The applicant has failed to demonstrate she sustained a WPI of at least 55 per cent.
9The applicant submits she meets Criterion 7 because she was determined to have a WPI of 74 per cent. The applicant relies on the catastrophic impairment rating report (dated March 31, 2021) by Dr. Marc Marciniak (physician) and the psychiatric catastrophic determination assessment (dated March 31, 2021) by Dr. Felix Yaroshevsky (psychiatrist).
10The respondent argues this is a soft-tissue injury case involving the injuries documented at the hospital after the accident, including neck and low back pain and headaches. The respondent says the applicant has not reached the WPI threshold of 55 per cent because Dr. Marciniak considered functioning that did not pertain to accident-related injuries, including the applicant’s right shoulder and right knee and leg. The respondent also says that Dr. Marciniak’s analysis of drug side effects is not supported by the medical evidence in this case, and the respondent further contests the validity of Dr. Marciniak’s grip strength and chronic pain analyses. The respondent relies on the reports of Dr. Mohammed Abdul Wahab Khan (physiatrist), Dr. Eric Silver (physician), Dr. Garry Moddel (neurologist) and Dr. Joel Eisen (psychiatrist).
11The applicant has not demonstrated that Dr. Marciniak’s analysis of the applicant’s functioning is reliable as it pertains to the WPI ratings he calculated. During the hearing, the applicant pointed to Dr. Marciniak’s assessment of her physical functioning. While I accept the impairment ratings offered by Dr. Marciniak as they pertain to the applicant’s neck and lower back, I find the applicant failed to substantiate Dr. Marciniak’s other ratings.
Neck and low back
12In my view, the applicant’s neck pain merits the five per cent calculated by Dr. Marciniak. While the applicant did not direct me to Dr. Marciniak’s own analysis or examination results pertaining to the applicant’s neck, the respondent pointed to the conclusion of its expert assessor, Dr. Khan, who similarly assessed the applicant’s neck at five per cent. As well, the applicant’s post-accident neck pain is corroborated in the hospital records referenced by the respondent, and in the clinical record entry made by Dr. Bakhshi (family physician) on July 10, 2020, as referenced by the applicant.
13While Drs. Marciniak and Khan agree the applicant’s low back is impaired, they differ on the WPI rating. Dr. Marciniak assigns 10 per cent, while Dr. Khan assigns five per cent. I agree with Dr. Marciniak’s rating. The applicant pointed to the clinical records of Dr. Bakhshi, who documents complaints of low back pain on February 11, 2020, March 26, 2020, and July 10, 2020. There are also the hospital records that document complaints of back pain following the accident. While the respondent pointed to Dr. Khan’s rating, I was not directed to evidence that showed me Dr. Khan’s rating was more reliable than that of Dr. Marciniak. As such, I give more weight to the applicant’s evidence.
Functional impairments other than the applicant’s neck and back
14The balance of impairments assessed by Dr. Marciniak are unsubstantiated. Dr. Marciniak attributed five percent WPI each to injury/headache, chronic pain, and use of medications with gastrointestinal problems. He also assigned eight per cent WPI to right shoulder, 33 per cent WPI to grip strength deficit, and two per cent WPI to right knee and leg. I did not place weight on these ratings for several reasons. First, I was not pointed to Dr. Marciniak’s analysis of these impairments (i.e., how he arrived at these ratings), and I find this significantly hinders the applicant’s case. Second, the hospital report of the applicant’s examination following the accident does not indicate she suffered a head injury and does not list any complaints or observations about a grip strength deficit, or pain or functional impairments associated with her right leg or knee. Further, Dr. Bakhshi’s records as referenced by the applicant do not speak to concerns pertaining to the applicant’s grip, her right leg, or her right knee. While Dr. Bakhshi documents neck pain radiating to the applicant’s right shoulder on July 10, 2020, I find this, in and of itself, is insufficient to overcome the respondent’s evidence, which suggests improvement in the applicant’s physical condition. The respondent pointed to Dr. Moddel’s neurological report, where he concluded the applicant’s condition was normal in November 2021. The respondent also pointed to Dr. Silver’s November 2020 musculoskeletal assessment report, where he determined the applicant sustained uncomplicated soft-tissue injuries to her neck and back that were resolved.
15Pertaining to headaches, I agree with the respondent that Dr. Marciniak’s WPI assessment is inconsistent with the medical evidence. Dr. Marciniak indicated that that applicant hit her head against the ceiling of the car, and that the hospital records show the applicant was confused and dizzy upon admission. However, the applicant did not show me where this information was documented by the hospital, and, as mentioned earlier, the respondent established complaints were limited to neck pain, back pain, and headaches. Given this, and Dr. Moddel’s November 2021 opinion that the applicant’s continuing headaches were tension-related and vascular in nature with no evidence of neurological sequalae from the accident, I placed little weight on Dr. Marciniak’s rating for head injury and headaches.
Psychological WPI component
16I find the applicant has not established a WPI of 40 per cent as assessed by Dr. Yaroshevsky.
17The applicant did not point to evidence that shows how Dr. Yaroshevsky arrived at his rating. The applicant directed me only to the fact that Dr. Marciniak took Dr. Yaroshevsky’s WPI rating of 40 per cent into account, which related to pages eight and nine of Dr. Yaroshevsky’s report. However, the applicant did not pinpoint any evidence at those pages of Dr. Yaroshevsky’s report for me to consider. The applicant’s submissions on Criterion 7 otherwise referred to the clinical records of Dr. Bakhshi, which documented only the applicant’s physical complaints and symptoms and do not speak to psychological symptomology that may contribute to WPI. Given the lack of evidence to support Dr. Yaroshevsky’s WPI rating, I accept that the applicant’s WPI is more likely closer to the 0 per cent assessed by the respondent’s expert, Dr. Eisen.
18Taken together, I find this evidence does not support a WPI of at least 55 per cent, which the Schedule requires the applicant to prove to reach the Criterion 7 catastrophic threshold. I can only account for 15 per cent on the physical component and accept that the psychological component is less than 40 per cent.
Criterion 8
19I find the applicant is not markedly impaired in at least three areas of function.
20For context, the expert assessors for both the applicant and the respondent agree the applicant sustained a mental and behavioural disorder as a result of the accident. The respondent indicated that Drs. Yaroshevsky and Eisen provide a diagnosis of adjustment disorder with anxiety. I disagree. While I accept that Dr. Yaroshevsky diagnosed the applicant as such, Dr. Eisen’s report indicates a possible adjustment disorder with mixed mood features. In my view, this is not a confirmed diagnosis, and I accept only that Dr. Eisen diagnosed the applicant with a specific phobia (passenger anxiety).
21Further, Dr. Yaroshevsky assesses the applicant with a marked impairment in her ADL, social functioning, and CPP. The applicant’s submissions did not speak to Dr. Yaroshevsky’s determination of adaptation or point to evidence on that area of function. Dr. Eisen also assess the applicant with a marked impairment in these same three areas of functioning but offers that the applicant was likely markedly impaired prior to the accident owing to her intellectual disability, which he characterized as autism.
22The applicant submits she satisfies the test for catastrophic impairment because of her diagnosis and symptomology. While she acknowledges an intellectual disability from an early age, the applicant says this did not prevent her from helping with household activities and doing learned activities pertaining to her self-care, such as eating, dressing, and using the washroom. The applicant explains that after the accident, her psychological condition deteriorated and involved physical aggression, temper tantrums, staying up late at night, and engaging in erratic, unpredictable, and difficult-to-manage behaviours. She adds that she cries a lot through the night—and upon seeing any vehicle—and feels a strong need to keep her mother close to her. She also says she wakes up from sleep screaming.
23The respondent raises causation as an issue in this matter and argues that the applicant’s history is significant in terms of her need to be supervised and assisted with her daily activities. The respondent goes on to explain that the Tribunal earlier found the applicant was not entitled to an NEB, and therefore reasons the applicant cannot meet the more stringent test of catastrophic impairment because her injuries and diagnosis remain the same. The respondent also questions the reliability of the applicant’s evidence because her pre-accident history was not fully considered by the applicant’s assessors. Further to this, the respondent asserts the applicant speaks only Farsi, and family members—who also have disputed claims arising from this accident and who have retained the same physicians—were used as interpreters during her assessments.
24The applicant has failed to meet her onus to show she is catastrophically impaired under Criterion 8. While I accept the applicant’s adjustment disorder diagnosis, I was not pointed to evidence of her symptomology and resulting impairment contemporaneous to the accident and up to her assessment. The applicant relied exclusively on Dr. Yaroshevsky’s report to demonstrate that her behaviour changed after the accident. But the accident occurred in August 2018 and Dr. Yaroshevsky’s report was completed in March 2023. Given so much time had elapsed, the applicant would need, in my view, to produce corroborating medical evidence of impairment owing to her diagnosed disorder during this nearly three-year period to persuasively argue that she meets the test for catastrophic impairment. But while the respondent referenced the five medical records that Dr. Yaroshevsky indicated he had available to him at the time of his assessment, the applicant did not show Dr. Yaroshevsky had relied on any of them to inform his findings or point to any evidence in these records to corroborate Dr. Yaroshevsky’s determinations of catastrophic impairment.
25In fact, the respondent offered that Dr. Yaroshevsky provided no analysis of the applicant’s ADL, social functioning, or CPP per the factors in chapter 14 of the 1993 Guides, and the applicant failed to direct me to any such analysis. The respondent went on to say no supportive assessments (i.e., occupational therapy) of the applicant’s functionality were conducted for Dr. Yaroshevsky to rely on and I agree given that the applicant did not point to any in her submissions. I also agree with the respondent’s position that the applicant presented little evidence to establish that Dr. Yaroshevsky relied on any information other than what he obtained from the applicant’s mother.
26Given the lack of contemporaneous medical evidence to corroborate the applicant’s psychological symptomology and functionality from the time of the accident to Dr. Yaroshevsky’s assessment; the absence of analysis to show impairment in accordance with chapter 14 the 1993 Guides as required by the Schedule; and, to a lesser extent, the respondent’s unchallenged assertion that the applicant submitted no treatment plans for psychological treatment from the accident to the date of the hearing, the applicant has failed to establish she is markedly impaired in at least three areas of function owing to a mental of behavioural disorder resulting from the accident.
27As the applicant has failed to meet her onus, I find it unnecessary to address the respondent’s arguments on causation.
ORDER
28The applicant has not demonstrated she is catastrophically impaired as defined by the Schedule. The application is dismissed.
Released: October 16, 2024
__________________________
Michael Beauchesne
Adjudicator