Licence Appeal Tribunal File Number: 24-002196/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:
Lindita Kozhani
Applicant
and
Jevco Insurance
Respondent
DECISION
ADJUDICATOR: Tami Cogan
APPEARANCES:
For the Applicant: Maciek Piekosz, Counsel Victoria Edwards, Counsel
For the Respondent: Raman Pandher, Counsel Nadia Pele, Counsel
Interpreter: Roland Lelai, Albanian Language
Hearing Reporter: Guido Riccioni
HEARD by Videoconference: November 18, 19, 20, and 21, 2024
OVERVIEW
1Lindita Kozhani, the applicant, was involved in an automobile accident on April 3, 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 the respondent, Jevco Insurance, 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 by the Schedule, Criterion 8?
RESULT
3The applicant has not established that she sustained a catastrophic impairment as defined by the Schedule.
PROCEDURAL ISSUE
4The parties requested and were permitted to submit their closing submissions in writing, in addition to presenting them orally. To ensure procedural fairness, I was explicit in my directions that anything in the written submission that was not read onto the record would be struck. During the applicant’s submissions, I cautioned counsel that the submitted document was exceeding the oral submissions, however my concern persisted.
5To ensure the applicant has not taken the written submissions as an opportunity to make further submissions than the allotted time of 60 minutes would allow, and in doing so, gain advantage over, and thus create a prejudice to the respondent, I find that it would be procedurally unfair to consider the applicant’s written submissions. I note, that even if admitted, my outlook on the evidence would not change because I have heard the applicant’s oral submissions. I find that considering the respondent’s written submissions does not prejudice the applicant because the respondent’s written submission mirrored their oral submissions.
ANALYSIS
Catastrophic Impairment
6I find the applicant has not established that she sustained a catastrophic impairment as defined by the Schedule for the reasons that follow.
7The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one. See: Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30. In order to prove their case, the applicant must demonstrate that they have suffered accident-related impairments according to the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment, 4th edition (the “Guides”) due to a mental or behavioural disorder.
8Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides set out four spheres of functioning and five levels of impairment. The applicant must prove they suffer a marked (class 4) impairment in three or more areas of function, or an extreme (class 5) impairment in at least one functional area.
9The four spheres of functioning are set out in the Guides as follows:
i. Activities of daily living (“ADLs”); ii. Social functioning; iii. Concentration, persistence, and pace (“CPP”); and iv. Adaptation to work or work-like settings (“Adaptation”);
10The levels of impairment are set out and defined in the Guides as follows:
i. Class 1: No impairment; No impairment is noted.
ii. Class 2: Mild impairment; Impairment levels are compatible with most useful functioning.
iii. Class 3: Moderate Impairment; Impairment levels are compatible with some, but not all useful functioning.
iv. Class 4: Marked Impairment; Impairment levels significantly impede useful functioning.
v. Class 5: Extreme Impairment; Impairment levels preclude useful functioning.
11The applicant’s position is that she has sustained marked impairments in the spheres of ADLs, CPP, and Adaptation, and a moderate to marked impairment in the sphere of Social Functioning as a result of the accident.
12The respondent’s position is that the applicant has not sustained a marked impairment or an extreme impairment in any of the spheres of functioning, as a result of the accident.
i. ADLs
13I find the applicant has not established that she has sustained a marked impairment or an extreme impairment in the sphere of ADLs, as a result of the accident.
14The activities of daily living are defined in the Guides:
Activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities…in the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability. It is necessary to define the extent to which the individual is capable or initiating and participating in these activities independent of supervision or direction. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
15The applicant submits that in comparison to before the accident she is no longer independent with her personal care and is unable to travel independently and cannot initiate these activities. Her sexual function is significantly reduced which was an important aspect of her relationship with her husband. Furthermore, the applicant is too tired to perform her daily tasks, and she no longer initiates social or recreational activities, and her participation is only at the insistence of her family.
16The respondent submits that the applicant is independent with her personal care and continues to travel extensively. She remains sexually active and does participate in social gatherings and family events.
17The applicant relies on the mental health and medical assessment report of Dr. Nadia Brown, M.D., dated February 22, 2023, in which Dr. Brown opined the applicant has sustained a marked impairment in this sphere. I heard testimony from Dr. Brown that the applicant’s daily functioning is impeded by an avoidance of activities resulting from her somatic symptom disorder which causes anticipation of pain and pain avoidance. I agree with Dr. Brown that the applicant has a mental or behavioural impairment. However, I do not agree the applicant’s impairments with respect to ADLs rise to the level of a marked impairment. While I find the applicant is dependant on family for initiating travel and social outings, and her sexual function is reduced, I find the applicant is independent with and capable of initiating self-care, personal hygiene, daily tasks, communication, and ambulation, as well as continuing to travel internationally and participate socially in family holidays and celebrations such as birthdays, anniversaries, and weddings.
18The applicant submits that due to her lack of motivation, she is not independent with her self-care and personal hygiene. In support of a marked impairment rating, Dr. Brown refers to the applicant’s reduced frequency of bathing. I acknowledge that the applicant reports and testified that before the accident she would shower daily and after the accident she showers only every few days or when prompted by her husband. The applicant testified that she is not interested in styling her hair or doing her make-up but that she does so for her daughters, and sometimes for special events, they help her. She also states that she does not change her clothes everyday. I find the collateral interview of Arianit Kozhani, the applicant’s son, completed on May 29, 2023, with Krista Cole, occupational therapy assessor contradicts the applicant’s evidence because he states that she does change her clothes daily, although may not change her clothes when leaving the house. Mr. Kozhani does not comment on his mother’s showering habits. He also reported that the applicant wears make-up and dresses better when her sister visits every other weekend. I find the surveillance evidence corroborates that the applicant does style her hair and puts on make-up when attending family events such as birthdays, anniversaries, and weddings because these photos demonstrate the applicant’s attendance at events such as these occasions wearing appropriate attire and suitably groomed.
19Furthermore, I acknowledge that Ms. Krista Cole, occupational therapist noted in her occupational therapy in-home assessment report, dated June 11, 2023, that the applicant was wearing the same clothes on the second day of the assessment as she was on the first day. This observation was also made by Ms. Kelly Wendt, occupational therapist in her occupational therapy in-home assessment report dated January 10, 2024. Ms. Wendt further noted the applicant reported not having showered, which I find supports the applicant’s testimony. Ms. Wendt further reported that the applicant did change her clothing in preparation for the community assessment, after Ms. Wendt’s arrival. Ms. Wendt’s report did not indicate that the applicant was in need of a shower, only that she had not showered since the day before. Neither of the occupational therapist indicated that her clothing was inappropriate or soiled, only that it was the same clothing as the day before. I find that the applicant’s motivation to perform these self-care tasks is reduced, however, the evidence does not support that the applicant has a significant impediment to performing her self-care or personal hygiene because she does complete these tasks alone, or with limited assistance, albeit on a less frequent basis.
20The applicant submits that she is not independent because she requires someone to be with her due to her anxiety. This was also a barrier to her ability to shower daily because she needed her husband or a daughter to be nearby. The applicant testified that her husband works fulltime during the day and that since the accident her son, daughter-in-law, and two grandchildren moved into an independent suite in the basement of the house. I note that Mr. Kozhani reported to Ms. Cole that he did not take his family to Florida for a vacation because he did not want to leave his mother alone. However, I have not been persuaded by evidence that the applicant is accompanied during the day on a regular basis, or cannot be alone, or that there are any safety concerns for her well-being because although Dr. Brown mentions the applicant’s preference to not be alone, she did not conclude the applicant should not be alone or requires supervision.
21The applicant did not lead evidence that she has an impairment in her ambulation or communication abilities.
22The applicant testified that the frequency of her sexual intimacy has significantly decreased from daily to weekly or bi-weekly. This was consistently reported to Ms. Cole, Dr. Brown, Ms. Wendt, and Dr. Velan Sivasubramanian, psychiatrist. I accept the applicant’s position that her level of sexual function has been significantly impeded, however, I find that a marked impairment in one aspect of the applicant’s ADLs does not on its own raise the level of impairment of the entire sphere but must be considered in conjunction with the other aspects.
23The applicant submits that due to poor sleep, she is fatigued throughout the day which interferes with her ability to complete her ADLs. The applicant testified that she achieves on average, five to six hours of broken sleep and does not feel rested in the morning. She reported to Dr. Brown that she does not sleep through the night but does not nap during the day. This is consistent with the applicant’s reporting to Ms. Wendt that she does not sleep during the day but may rest in her room and retires for the evening at the same time as her husband. To determine how her sleep affects her ADLs, I find the objective observations of Krista Cole and Kelly Wendt, occupational therapists to be more persuasive evidence of the applicant’s functional ability. Ms. Cole reported that the applicant engaged in the functional observation environmental assessment and completed the cooking portion of the task, but declined to complete the clean-up portion, or light housekeeping, citing severe neck pain, dizziness, and a headache. Ms. Cole did not identify the need to prompt the applicant to initiate or engage with the task after it was introduced to her. Ms. Cole concluded that it was the applicant’s physical pain and limitations that restricted her ability to complete the tasks. I am not persuaded that the applicant’s physical pain and limitations are a result of a lack of sleep. However, I do accept the applicant’s avoidance of activities results from her somatic symptom disorder which causes anticipation of pain and pain avoidance.
24Furthermore, I am persuaded by the evidence of Ms. Wendt who observed the applicant while doing household chores and found that while the applicant needed limited help, she was largely independent, albeit the applicant did require frequent breaks. Ms. Wendt observed the applicant at her residence during an in-home situational assessment while doing laundry, including loading, unloading the machines, and folding clothes, sweeping and light vacuuming. The applicant informed Ms. Wendt that she was capable of loading the dishwasher and wiping down the bathroom sink, but not clean the toilet or shower, and can assist to clean the garage, water the flowers and grocery shop, but requires assistance with heavier items. The applicant also reported that she rises in the mornings and prepares her daughter’s lunch for school, takes her to the bus stop, and spends her day attempting small tasks around the house. I did not hear evidence that suggested anyone was queuing or prompting the applicant for these tasks. Ms. Wendt concluded that the applicant requires assistance for having the laundry carried to and from the machines. Ms. Wendt also reported the applicant’s complaints of fatigue and pain while completing the tasks and were the subjective reasons the applicant declined to continue with the assessment. Ms. Wendt who observed and testified that upon receiving the in-home tasks, the applicant initiated the cooking and cleaning tasks. I acknowledge that the applicant did not thoroughly clean the floors, did not complete the entirety of the tasks due to pain, and was not efficient with multi-tasking. However, I find that with respect to these tasks, the applicant demonstrated a level of impairment compatible with some useful functioning because the applicant did not require continual prompting or direction, the applicant did identify the appropriate food items, kitchen utensils, cleaning products and equipment for each task and used them appropriately.
25I further do not accept that the applicant is significantly impeded from driving as a result of the accident. The applicant reported to Kelly Wendt in November 2023 and testified that she has returned to operating a motor vehicle for short distances, such as trips to the grocery store. The applicant reported to Ms. Wendt that she is anxious driving because of a physical restriction in turning her head and continues to be anxious as a passenger.
26The applicant submits that her lack of independence and inability to initiate causes a significant impediment to useful functioning in social, recreational and travel activities because her level of participation is not sustainable or effective. In my view, the applicant’s submission is contradicted by the clinical notes and records of Registered Social Worker Nancy Rodrigues beginning in 2020. Ms. Rodrigues reported that the applicant initiated going out into the community, suggesting activities such as visiting family at their furniture store where she socialized, as well as grocery shopping and attending Walmart, and the applicant was able to engage Ms. Rodrigues in conversation, initiating topics of conversation. I acknowledge that four of seven social work visits that were cancelled, however Ms. Rodrigues’s reports indicate the cancellations were due to illness or physical injury, but not psychological sequelae.
27The applicant testified that before the accident she hosted and prepared large family gatherings, which included preparation of cultural dishes and now she is unable to do so. I accept that the applicant’s ability to host these social events is impeded, however, the applicant testified that now her family will go out to a restaurant to celebrate instead. This was supported by the photographs tendered by the respondent which depict the applicant’s attendance at several family celebrations, including birthdays, anniversaries, weddings, and extended family trips. The applicant also testified that if a large group of people attend her home, she may need to take a break in her room, but that she will re-join later after a rest. I find the applicant’s testimony supports that she does participate in social events and that her impairment level does not rise to a level of a significant impediment.
28The applicant submits that she is not independent in her ability to travel. The applicant testified that prior to the accident she planned and prepared family trips. Now, the family does not tell her about the trips until they are ready to leave because the applicant will object to going, but they force her to go. The applicant also submitted that she only travels because she cannot stay at home alone. However, I am not persuaded that she was forced to travel because she also testified that on several occasions the trips involved only her and her husband, while the rest of the family stayed home. I have not heard persuasive evidence as to why she could not have stayed home with the remaining family. I find the assessment reports of Krista Cole and Dr. Brown do not address the applicant’s ability to travel are therefore not helpful in this regard. I find the evidence supports the applicant does travel, accompanied by her family, just as she was before the accident.
29The clinical notes and records of Amanda Maxwell, occupational therapist dated January 10, 2022, support the applicant has travelled for prolonged periods of time because Ms. Maxwell reported that the applicant requested the sessions be paused due to an extended multi-month trip overseas. The applicant testified that since the accident she has travelled with her husband, and sometime other family members, to Kosovo for her son’s wedding as well as two dental appointments. She also travelled to Turkey, Macedonia, Florida, New York, Ottawa, Toronto, and Niagara Falls. It was unclear exactly when or for how long the applicant has travelled each time. I heard testimony from the applicant that since the accident her family travelled to Florida at least two times, once was by car in 2019, which was a three day drive each way. As far as the reduction in the number of times the applicant has travelled to Florida since the accident, I have also considered the COVID-19 travel restrictions from 2020 – 2023. I accept the applicant’s testimony that she is anxious while travelling, and although she may not initiate the travel or be as involved in planning trips, I find the applicant is still able to travel after the accident at a level that is compatible with some useful functioning.
30For the reasons above, I find the applicant has not proven on a balance of probabilities that she has sustained a mark impairment in the sphere of activities of daily living.
ii. Social Functioning
31I find the applicant has not established that she sustained a marked impairment or an extreme impairment in the sphere of Social Functioning, as a result of the accident.
32Social functioning is defined in the Guides:
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. Strengths in social functioning may be documented by an individual’s ability to initiate social contact with others, communicate clearly with others and interact and actively participate in group activities, cooperative behaviour, consideration for others, awareness of others’ sensitivities and social maturity also need to be considered.
33The applicant submits that she is socially withdrawn from friends and family, and she no longer initiates contact. Dr. Brown rated the applicant’s impairment at a level that is moderate to marked. I do not find Dr. Brown’s rating persuasive because the Guides do not contemplate combined or split ratings.
34I find that the evidence before me shows that shortly before the accident the applicant had moved from Kitchener to London where she now lives in close proximity to extended family. The applicant reported to several assessors and testified that her dominant social circle is her extended family. I find the evidence considered for ADLs supports that the applicant continues to celebrate birthdays and anniversaries with family and friends. The applicant testified that when she lived in Kitchener, she had friends with whom she would meet at Tim Hortons, but due to COVID-19 restrictions was unable to continue. However, I find the fact that she does not have as many social interactions after the accident is not evidence that the applicant withdrew from socialization entirely because of psychological sequelae related to the accident. I find this was also the result of moving away from Kitchener to London, as well as the social isolation of COVID-19.
35In my view the applicant’s testimony that she does not want to socialize or take pleasure in being with people is not consistent with the clinical notes and records of Nancy Rodrigues, social worker, who documented the applicant initiated a social visit to a family member’s furniture store, to which Ms. Rodrigues provided transportation. Further Ms. Rodrigues documented in her on February 26, 2020, notes that the applicant expressed her excitement for her daughter to visit on the approaching weekend.
36In an occupational therapy assessment dated June 11, 2023, Krista Cole, states that the applicant did not engage with the others during the community assessment task, as exemplified by her lack of response to the grocery store cashier’s social pleasantries. I also note that the applicant declined to participate in the community outing with Ms. Wendt. However, I again refer to Ms. Rodrigues’ clinical notes in which the applicant-initiated conversations and was appropriately engaged, and initiated a trip to visit family, as well as to the grocery store. Additionally, each of the assessors have reported the applicant to have been pleasant, responsive, and cooperative during their interactions. I have also considered that the applicant relies heavily on the presence of language interpretation from others, which can be a barrier to socialization in setting such as a retail environment, but which is unrelated to psychological sequelae from the accident.
37I note that in Ms. Cole’s report it is documented that the applicant fights often with her husband as she is upset with him when he cannot spend time with her and provide comfort. In my view, this is inconsistent with the applicant’s testimony that she does not have any interest in being around her husband. Both of which I find contradict the applicant’s reporting to Dr. Brown that her husband is highly encouraging and supportive, and that they have a very good connection. The applicant reported to Ms. Wendt that she continues to have positive relationships with her children, which I find is corroborated by the applicant’s participation in family gatherings and travelling on extended vacations.
38I find the evidence shows that the applicant’s daughter calls her each day, and the applicant’s sister visits on a regular basis and that the applicant anticipates these contacts. Again, I have considered the evidence detailed above regarding the applicant’s family gatherings and vacations. The applicant testified that the family plans gatherings and trips that the applicant attends. She testified that she participates by using a pacing strategy of taking breaks for quiet time and later returning to the events.
39In sum, I find that the applicant has not established on a balance of probabilities that she has a marked impairment in the domain of social functioning.
iii. CPP
40I find the applicant has sustained a marked impairment in the sphere of CPP, as a result of the accident.
41Concentration, persistence and pace is defined in the Guides:
Concentration, persistence, and pace needed to perform many activities of daily living, including task completion. Task completion refers 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 … 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.
42The applicant submits that she has a marked impairment in CPP because she is unable to persist in task completion at a pace that is sustainable. I agree with the applicant.
43The respondent relies on the independent psychiatry assessment for catastrophic impairment determination report of Dr. Sivasubramanian, psychiatrist, who opined that the applicant has no more than a moderate impairment in the sphere of CPP.
44I disagree with Dr. Sivasubramanian because he appears to partially base his conclusion on the following:
i. There being no evidence of a gross thought disorder during the clinical interview; ii. The applicant having no word-finding difficulties; iii. The applicant reporting driving independently on rare occasion; and iv. The applicant maintaining control over her medication if not her finances.
45However, he also made a previous note that the applicant does not take medication. Dr. Sivasubramanian does not explain how the above considerations relate to CPP. Further, Dr. Sivasubramanian quotes Ms. Wendt’s observations but has not indicated how he reached the impairment rating.
46Ms. Wendt made the following observations:
i. The applicant required breaks during and between tasks and was able to sustain participation in simple sedentary tasks but at a very slow pace, which I accept demonstrates a significant impediment in pacing; ii. The applicant demonstrated reduced sustainability for activities that required even limited strength or functional movement, and once the applicant had reached her maximum functional tolerances, she refused to participate in even sedentary tasks; which I accept demonstrates a significant impediment in persistence; iii. The applicant had difficulty dividing and alternating her attention during the multiple errands test, and “the applicant required the instructions to be repeated when multi-step instructions were involved; which I accept demonstrates a significant impediment in concentration; and iv. The applicant’s level of functional engagement was minimal throughout testing; however, she was able to return to the assessment without cueing or encouragement after breaks; which I accept supportive of an ability to initiate tasks.
47Dr. Sivasubramanian also had the report of Ms. Cole available to him for consideration, however there is no indication in the report that he has considered her observations.
48Ms. Cole reported her observations as follows:
i. The applicant moved at a very slow pace and required a chair to sit to manage her symptoms. During the cooking task, the applicant took 36 minutes, in comparison to the expected 10 minutes according to the recipe, which I accept demonstrates a significant impediment in pacing; ii. The applicant is easily distracted from the task-at-hand which results in incomplete tasks; which I accept demonstrates a significant impediment in concentration; and iii. The applicant’s need for breaks undermines her efficiency because she cannot sustain participation until the tasks are completed, which I accept demonstrates a significant impediment in persistence.
49I find the applicant has proven on a balance of probabilities that she has sustained a marked impairment in the sphere of CPP.
iv. Adaptation
50I find the applicant has not sustained a marked impairment or an extreme impairment in the sphere of Adaptation, as a result of the accident.
51Adaptation to work or work-like settings is defined in the Guides:
Deterioration or decompensation in work or work like settings refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation signs and symptoms … He or she may decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stressors common to the environment include attendance, making decisions, scheduling, completing tasks and interacting with others.
52The applicant testified that before the accident she worked for a family member as a cleaner. She attempted a work re-entry for three months in 2020, which ended in early December. The work re-entry duties included administrative tasks, supervision of other cleaners, and cleaning. The applicant submits that due to her anxiety and depression she was unable to continue.
53I have considered the occupational therapy assessment report of Ms. Cole dated June 11, 2023, as well as her testimony. Ms. Cole administered the Toglia Calendar Task, level 2, to assess the applicant’s cognition. The task consists of organizing seventeen events in a calendar with written instructions provided and rules to be followed. The applicant answered two out of seventeen correctly. However, I find the poor performance results hold less weight for demonstrating the applicant’s true abilities because I was persuaded by Ms. Wendt, who testified that this particular test was inappropriate because of the high language content in this task and the fact that it was being translated during the task which adds complexity and could result in increased errors.
54Ms. Cole also administered a mental flexibility assessment which included 5 questions: The first question consisted of the applicant listing 5 pros and cons of getting a dog. The applicant was able to provide 0 pros and 5 cons. For question 5, the applicant’s son answered part of the question. Ms. Cole’s conclusion was the applicant lacked self-awareness, mental flexibility and reasoning, because her responses were limited to her learned experiences. Ms. Cole testified that the applicant’s culture does not accept household pets, but that the test was a measure of the applicant’s ability to think beyond herself. I give less weight to Ms. Cole’s conclusion because the topic of the task was partially culturally unsuitable and therefore resulted in negatively skewed results.
55Ms. Cole also administered a cognitive competency test - verbal reasoning sub-test. This consists of 10 questions which are designed to test an individual’s judgment. Ms. Cole testified that she selected the questions based on the standard 10 questions she normally uses. Based on the test results, Ms. Cole opined the applicant demonstrated difficulty with problem-solving and decision making. I find the test score is less persuasive because the applicant’s answers on three questions for which marks were deducted, appear subjectively reasonable and Ms. Cole has not given reasons as to why the applicant’s answers were deficient. I agree with Ms. Cole’s conclusion that the applicant has some difficulty with problem-solving and decision making, however, I do not agree that the difficulty rises to a level of a significant functional impairment.
56Ms. Cole administered two organizing task assessments. The applicant did well on both.
57Ms. Cole administered a functional observation environmental assessment. The applicant was asked to attend the grocery store to purchase ingredients listed on a recipe. The applicant agreed to participate only if her son attended. Ms. Cole modified the task to accommodate the applicant’s anxiety by not requiring her to obtain information from the staff at the store. Ms. Cole drove the applicant and her son to the store. The shopping was to be completed in 20 minutes. The applicant completed the task, with errors, in 14 minutes. I note that Ms. Cole appears to indicate that completing the task early was an error. Ms. Cole concluded that the applicant experienced challenges in adapting to stress. I find the outcome of this task is supportive of the applicant’s level of impairment being compatible with some, but not all useful functioning, because although it was completed within the expected timeline it did require modifications.
58The applicant was also asked to complete a cooking task with the ingredients purchased at the store. As considered regarding the previous spheres, Ms. Cole opined that the applicant moved at a very slow pace and required a chair to sit and manage her symptoms. The applicant required physical assistance from her son to open cans and convert measurements. The applicant had difficulty with the timing to have both components ready at the same time. I find that the applicant’s use of a chair to take a break while completing the task as well as recognizing her limitations and requesting assistance when needed to continue with the task, supports that the applicant has the ability to adapt to her circumstances, find accommodations, and persevere with the task until it is complete.
59Ms. Cole reported that because of the applicant’s pain, anxiety, and dizziness, only two of the three requested tasks were completed on the last day of testing. I have not heard evidence of the nature of the third task that was declined.
60Ms. Wendt also administered a Modified Multiple Errand Test, designed to assess executive functioning, organizing, planning, multi-tasking. The test involved completing 6 tasks; 1) preparing something to eat using the stove or oven and at least three ingredients; 2) Wash the dishes from the meal preparation task; 3) Sweep or vacuum the floors in the kitchen, family room, dining area, and main hallway; 4) start or fold a load of laundry; 5) clean your washroom; 6) select outfits for each of the following scenarios; a) a doctor’s appointment in February, b) a walk in the park in July, c) grocery shopping tomorrow (November).
61During the test, while the applicant was preparing the meal, she was asked 5 questions to test her judgment. Ms. Wendt opined that the applicant’s answers to the questions were all reasonable responses. Ms. Wendt did note the applicant’s difficulty with dividing her attention between cooking and talking, however this is not indicated to have affected the outcome of the task. The applicant self-initiated the third task on the list, but Ms. Wendt observed the task was not completed thoroughly. The applicant then moved on to complete a task that was not on the list, that being cleaning the table and kitchen island. I find this supports the applicant’s ability to initiate tasks, however, it is also evidence of the applicant being distractable. After taking a bathroom break, the applicant returned to the cooking task without prompting. The applicant then initiated the fourth task on the list. The applicant returned to the cooking task, completed it, and then initiated the second task on the list, but did not complete it. The applicant then declined to continue with the assessment and did not complete the fifth or sixth task on the list, citing neck pain. The applicant did advise Ms. Wendt that prior to the onset of the assessment she had already assisted with the laundry and loaded the dishwasher earlier in the day. The observed assessment was 2 hours 53 minutes in duration with two breaks of 3 - 4 minutes each. I find the applicant’s partial completion of this assessment supports that she is capable of adapting to work or work-like settings to a level of some, but not all useful function.
62On the second day of testing Ms. Wendt administered a cognitive functional planning task, which she testified was selected because it was relevant to the applicant’s pre-accident function. The applicant was asked to outline a one-week nutritious and balanced meal plan for her youngest daughter. Ms. Wendt opined the resulting meal plan with three meals each day contained reasonably healthy options with variety. I find this evidence supports the applicant has the ability to make decisions, plan and schedule.
63On the second day of testing, the applicant completed a work related cognitive functional planning task. The applicant was asked to provide a list of tasks she would have to complete to thoroughly clean the house at the expectation of her hypothetical employer. She was also asked to provide a realistic estimation of how long each task would take. Ms. Wendt opined the answers were appropriate. I find that the applicant’s answers support that she has an impairment level that does not exceed a level compatible with most useful functioning because of her ability to adapt by making decisions, planning, and scheduling in a work-like environment. I note that initially the applicant had misunderstood the instructions of this task and had provided a list of supplies that would be required. Although answered in error, I find the answer in-and-of-itself supports the applicant’s ability to adapt to a work-like setting through preparation to complete a task. The actual task assigned, also supports the applicant’s ability to make decisions, plan, and schedule.
64The applicant was presented with a request to participate in a community outing. The applicant did prepare herself for the outing, however declined, citing fatigue and pain. Although the applicant did not participate, or “attend” this task, she did proceed to participate in an alternative task, which I find demonstrates adaptability and perseverance to a level of function compatible with some but not all useful functioning.
65The applicant agreed to challenge an alternate final task of cleaning as much of the home as possible in the remaining 55 minutes of the assessment. The applicant took a 15-minute break before beginning with the laundry, then vacuumed for 4 minutes before ending the assessment, citing fatigue and pain. As previously noted, the applicant had reported doing laundry earlier in the day, before Ms. Wendt’s arrival. I find that the applicant interacted well during the testing but did experience physical deterioration that caused her to withdraw from completing all of the tasks that were asked of her, which I find demonstrates she is capable of some, but not all useful functioning.
66For the reasons above, I find the applicant has not proven on the balance of probabilities that as a result of the accident, she has sustained a marked impairment that significantly impedes useful functioning in the sphere of adaptation.
Conclusion
67I find on a balance of probabilities that the applicant has sustained moderate impairments in the spheres of ADLs, social function, and adaptation, and a marked impairment in the sphere of CPP. Therefore, the applicant has not met her burden to prove she has sustained a catastrophic impairment under criterion 8 of the Schedule.
ORDER
68The applicant has not sustained a catastrophic impairment as defined by the Schedule.
Released: March 6, 2025
Tami Cogan
Adjudicator