Licence Appeal Tribunal File Number: 23-011240/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:
Irene Starr
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Alex Kluchuk, Counsel
For the Respondent:
Shivani Mehta, Counsel
Sabina Arulampalam, Counsel
HEARD: by Videoconference:
November 25 to 29, 2024
OVERVIEW
1Irene Starr, the applicant, was involved in an automobile accident on December 15, 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 Company, 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?
3The applicant advised at the start of the hearing that she was withdrawing the other issues in the case conference report and order.
RESULT
4The applicant is not catastrophically impaired under Criterion 7.
Motions
5On November 12, 2024, the applicant filed a notice of motion to exclude the document at Tab 60 of the respondent’s brief, which is an endorsement from Madame Justice Ria Tzimas prohibiting Dr. Vincezo Basile, neurologist, from testifying in a proceeding before her in provincial court. The applicant argues that the endorsement is from an unrelated proceeding and the lack of context gives the document limited value. The applicant also argued that the endorsement is prejudicial because it creates a negative impression of Dr. Basile even before he can address the concerns raised in the endorsement. According to the applicant, the prejudice caused by the endorsement outweighs its limited value and the proper approach is to admit the document during Dr. Basile’s testimony to allow him the opportunity to answer questions about the provincial court matter.
6The respondent submitted that the endorsement must already be in evidence in order to question Dr. Basile on the provincial court matter.
7I did not exclude the endorsement. The document is relevant as it is an assessment of Dr. Basile’s work from the provincial court. The issues raised by the applicant, that there is insufficient context and the document is prejudicial , can be addressed by the parties during Dr. Basile’s testimony and in final submissions on the weight to be given to this evidence.
8On November 24, 2024, the day before the hearing, the respondent provided a supplementary brief to the applicant and the Tribunal. The brief contains photos of the applicant from social media and a decision from the Human Rights Tribunal of Ontario where the applicant was a litigant. This evidence was not previously disclosed to the applicant. According to the respondent, it only recently became aware of this evidence, and thus, was unable to disclose it sooner. The respondent submits there is no prejudice to the applicant because she was aware of this evidence prior to the hearing and can respond to this evidence through testimony. The applicant objects to the late disclosure because it violates the Tribunal’s case conference order which set timeframes for the exchange of evidence and also because she had no time to prepare or gather responding evidence to address this new disclosure.
9I excluded the respondent’s supplementary brief from the proceeding. I agree with the applicant. She did not expect that this material would be presented at this proceeding and she has had no opportunity to prepare and gather responding evidence. This is procedurally unfair and a significant enough concern to exclude this evidence.
10The applicant sought to add the issue of whether she is catastrophically impaired under Criterion 6. The applicant previously submitted an Application for Determination of Catastrophic Impairment (OCF-19) under Criterion 7 which the respondent denied. A new executive summary from 2024 determined that she is catastrophically impaired under Criterion 6 and Criterion 7. According to the applicant, it is logical to consider Criterion 6 in this proceeding, even without a denial, because the findings on Criterions 6 and 7 are linked. The respondent submitted that there is no denial of a Criterion 6 determination, and therefore, the Tribunal has no jurisdiction to consider this new issue.
11I agree with the respondent. If there is no denial of an OCF-19 under Criterion 6, then there is no dispute between the parties. Under sections 280(1) and 280(2) of the Insurance Act, the Tribunal has jurisdiction when there is a dispute between an insured and an insurer. As there is no dispute, the Tribunal has no jurisdiction to consider whether the applicant is catastrophically impaired under Criterion 6.
ANALYSIS
12A catastrophic impairment under Criterion 7 results when, as a result of an accident, an insured person sustains a mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008 (“Guides, 6th edition”), where the impairment score is combined with a physical impairment rating from Criterion 6 and results in a 55% or more whole person impairment (WPI).
13The five medical reports in evidence provide the following WPI ratings for physical impairments:
Impairment
Dr. Getahun Report dated June 3, 2022 (applicant’s report)
Dr. Gladstone Report dated June 19, 2022 (applicant’s report)
Dr. Baslie Report dated April 22, 2024 (applicant’s report)
Dr. Moddel Report dated July 2023 (respondent’s report)
Dr. Sekyi-Otu Report dated July 29, 2023 (respondent’s report)
Medication s.2.2, Guides
3%
0%
Cervical Ch.3, Table 73
5%
5%
0%
Lumbar Ch.3, Table 72
5%
5%
5%
0%
Right Shoulder Ch.3, Fig. 38, 41, 44
12%
Right Wrist Ch.3, Fig 26,29
5%
Right Forearm Ch.3, Fig 35
1%
Grip Strength Ch.3, Table 34
18%
Dr. Seky-Otu gave a 15% WPI for the applicant’s right hand. He did not include this rating in the final total of WPI ratings because the 18% WPI for grip strength duplicated the impairment of the rating for the applicant’s hand.
Nervous System Ch.4
0%
Right Upper Extremity Ch.4, Table 14
39%
Radial Nerve Ch. 4, Table 15
19%
Ulnar Nerve Ch. 4, Table 15
5%
Sleep Ch. 4, Table 6
4%
2%
Occipital neuralgias Ch. 4, Table 23
10%
Aphasia and Communication Ch.4, Table 1
3%
Mental Status Impairment Ch.4, Table 2
14%
Emotional and Behavioural Ch. 4, Table 3
10%
Dr. Basile rates aphasia and communication, mental status impairment, and emotional and behavioural disorders. These are types of cerebral dysfunction. Section 4.1 of the Guides states that only the most severe impairment is used for the WPI rating. In this case, it would be 14% for mental status impairment.
Migraine Headache Ch. 15
2%
Tension Headache Ch. 15
1%
Hearing
2%
Complex Regional Pain Syndrome and Upper Right Extremity Ch. 3, various tables
45%
Total WPI rating:*
45%
32%
65%
0%
29%
*This rating is made by adding the numbers in each column using the combined values chart in the Guides.
14The applicant submits that various ratings from different reports can be combined to determine the applicant’s WPI score. In the alternative, she submits that the ratings of Dr. Basile confirm that she is catastrophically impaired under Criterion 7 even without the WPI rating for her psychological impairments.
15The respondent relies on the reports of Dr. Sekyi-Otu to establish that the applicant’s physical impairments result in a 29% WPI rating.
Medications
16Dr. Richard Gladstone, neurologist, gave the applicant a 3% WPI rating for medications in his report dated June 19, 2022. This rating is based on her use of opiates. Dr. Ato Sekyi-Otu, orthopedic surgeon, gave the applicant a 0% WPI rating for medications as the applicant had ceased using opioids by the time he assessed her for his report dated July 29, 2023.
17The applicant no longer uses opioids. Consequently, there is no longer a basis for Dr. Gladstone’s WPI rating for medications. For this reason, I give her a 0% WPI rating for medications under 2.2 of the Guides.
Spine
18Dr. Tajedin Getahun, orthopedic surgeon, rates the applicant as having a 5% WPI for her cervical spine under Chapter 3, Table 73 and 5% WPI for her lumbar spine under Chapter 3, Table 72 of the Guides in his report dated December 22, 2022. Dr. Vincenzo Basile, neurologist, gives the same ratings in his report dated March 6, 2024.
19Dr. Getahun noted pain complaints and measured range of motion restrictions in the applicant’s neck and lower back. Tables 72 and 73 of Chapter 3 of the Guides require muscle guarding to be observed by a physician, nonuniform loss of range of motion, or non-verifiable radicular complaints for Diagnosis Related Estimates (DRE) II rating of 5% WPI. In my view, the pain complaints and range of motion restrictions observed by Dr. Getahun satisfy the requirement of muscle guarding needed for a DRE-II rating.
20Dr. Basile reports pain complaints in the applicant’s neck and lower back. This is consistent with a DRE-I rating of 0% WPI. He does not note observed muscle guarding, nonuniform loss of range of motion, or radicular complaints which are required to make his DRE-II ratings of 5% WPI. As such, I do not accept Dr. Basile’s DRE-II ratings for the neck and lower back as these ratings do not meet the requirements in the Guides.
21Dr. Sekyi-Otu’s report also documents neck pain, but he observed no guarding or radiculopathy. He also observed a fluid range of motion. The applicant’s lower back was observed to have an excellent range of motion with no evidence of radiculopathy. He gave a WPI rating of 0% for her neck and lower back.
22The muscle guarding observed by Dr. Getahun in 2022 was not evident in 2023 when the applicant was examined by Dr. Sekyi-Otu. As such, the more recent medical evidence shows that the applicant’s injuries improved over time. For this reason I find that her neck and lower back are more consistent with a DRE-I impairment which is rated at a 0% WPI.
Sleep
23Dr. Gladstone gave a 4% WPI rating for sleep under Chapter 4, Table 6 of the Guides. Dr. Basile gave a 2% WPI rating for sleep. The noted effects of the applicant’s sleep disturbance were greater in Dr. Gladstone’s 2022 report. Two years later, the impact of her sleep disturbance is less pronounced. She was less fatigued by the time of Dr. Basile’s 2024 report, which accounts for the lower WPI rating.
24Dr. Basile attributes the sleep dysfunction to pain and anxiety. The s. 25 Catastrophic Impairment Psychiatric Evaluation Report of report of Dr. Zohar Waisman, psychiatrist, dated December 19, 2022, opines that there is a causal link between the applicant’s sleep disturbances and the mental disorders caused by the accident, which includes anxiety.
25The s. 44 Catastrophic Determination Psychiatry Assessment by Dr. Ranjith Chandrasena, psychiatrist, dated July 29, 2023 also documents the applicant’s sleep issues but is silent on what is causing these issues.
26The respondent argues that no WPI rating should be given for sleep because there is an insufficient history of sleep disturbances. I disagree. The Assessment of Attendant Care Needs by Kyla Man, occupational therapist, dated January 10, 2020, states that the applicant “reported experiencing difficulties with achieving restorative sleep since her accident.” This shows there is an ongoing history of sleep complaints that date back to just after the accident.
27In light of the history of sleep disturbances and the opinion of Dr. Waisman which links the sleep issues to the accident, I find that the applicant’s sleep issues are caused by the accident.
28Chapter 4, Table 6 permits a WPI rating for sleep issues caused by mental and behavioural factors. Having found that the applicant’s sleep issues are caused by mental factors, I further find that Dr. Basile’s 2% WPI rating is appropriate given her improvement since Dr. Gladstone’s assessment.
Occipital neuralgias
29The applicant submits that Dr. Basile’s rating for occipital neuralgias is sound.
30The respondent submits that the there is no objective medical evidence that supports this diagnosis.
31Dr. Basile testified that he diagnosed occipital neuralgias based on the applicant’s complaint of pain in her neck that radiates up to the vertex of her head. He also relied on various tests and observations made during his physical examination of the applicant for this diagnosis.
32In testimony, Dr. Basile described a possible way of sustaining this injury: by jerking the head to the left and right and stretching the nerves. However, he does not explain why he believes the applicant’s occipital neuralgias was caused by the accident. This is significant because Dr. Basile examined the applicant over four years after the accident. Neither the applicant nor Dr. Basile pointed to any objective medical evidence that shows the applicant suffered from occipital neuralgias prior to 2024. The lack of objective medical evidence documenting occipital neuralgias prior to Dr. Basile’s examination undermines the nexus between this condition and the accident.
33Consequently, I do not accept Dr. Basile’s WPI rating for occipital neuralgias because a sufficient causal link to the accident has not been established.
Headaches
34The parties disagree on whether the applicant’s headaches are caused by the accident. The applicant submits there are numerous references in the medical evidence that confirm she began to experience headaches after the accident. The respondent disputes this position because there are instances after the accident where the applicant either does not report headache symptoms to assessors or confirms that she is not experiencing any headaches.
35In submissions, the applicant referenced the report of Dr. Gladstone, Dr. Waisman, and the report of Kyla Man dated April 13, 2022 as examples where the applicant reports headache symptoms. All these reports are from 2022, about two or more years after the accident.
36In the January 10, 2020 and June 26, 2020 reports of Kyla Man, the applicant denies experiencing “any headaches.” The applicant testified that she was taking morphine at this time and that this was the reason she was not experiencing headaches.
37The applicant’s prescription summaries show that she filled her last prescription for Hydromorphone on July 20, 2020. A year later, the July 27, 2021 report of Dr. Sharleen McDowall, psychologist, indicates that the applicant denied “the presence of headaches.” As such, there was a significant period of time, between the summer of 2020 and the spring of 2022, where the applicant was not using morphine and also not experiencing headaches. For this reason, I do not accept her explanation for why she had no headaches during the two years following the accident.
38The objective medical evidence shows the applicant did not experience any headaches until two years after the accident. This undermines the nexus between the accident and this impairment. As such, I am not persuaded that the accident caused the applicant’s headaches, nor that a rating for headaches is warranted.
earing
39Dr. Basile report gives a 2% WPI rating for hearing loss and tinnitus without referencing any section of the Guides. Without referencing the Guides, it is not possible to know how he arrived at this rating. However, he may have used Chapter 9, as this chapter addresses hearing impairments.
40Chapter 9 describes specific tests and methods that must be used to measure hearing loss. Dr. Basile made this impairment rating without such testing. Instead, he relied on the applicant’s subjective report of hearing loss and the “whisper test.” This is inconsistent with the method in the Guides, and as such, I give no weight to the rating for hearing loss.
41The Guides also requires raters to estimate an impairment percentage for tinnitus based on the severity of the condition and the degree to which the tinnitus interferes with the function of the ears. This was not done. The report only states that the applicant’s hearing is “grossly normal” which is an indication of no impairment.
42Dr. Basile does not explain which section of the Guides he used to make an impairment rating for the applicants hearing. Consequently, it is not possible to understand how he arrived at his WPI rating for hearing. If he used Chapter 9, then he did not follow the methodology in the Guides to assign a rating for hearing loss. Additionally, he found that the applicant’s hearing was “grossly normal” which indicates that that applicant does not have a functional impairment for hearing. For all these reasons, I do not accept his rating for hearing loss and tinnitus.
Right upper extremity
43The applicant sustained a serious injury in the accident to her right arm which required surgery. The subsequent surgery injured her radial nerve and caused wrist drop which resolved after a few months. Unfortunately other injuries remain, including limited range of motion, decreased grip strength, and complex regional pain syndrome (CRPS). There is no dispute among the parties in regard to the applicant sustaining these injuries as a result of the accident.
44There are four reports that provide various impairment ratings for the upper extremity.
45Dr. Gladstone rated the ulnar and radial nerve under Chapter 3, Table 15. This methodology results in a 23% WPI rating (19% + 5% WPI) for the upper right extremity which is the lowest of the four impairment ratings. I note that neither party relies on Dr. Gladstone’s impairment ratings for the upper right extremity.
46The applicant relies on the findings of various reports as set out below. The respondent relies on the report of Dr. Sekyi-Otu.
47Dr. Basile testified that he determined the right upper extremity as having a 45% WPI rating. The respondent submits that Dr. Basile’s rating of these impairments is inconsistent with the instructions in the Guides. The applicant agrees that it is difficult to understand how Dr. Basile arrived at his final ratings, but maintains her position that these ratings can be relied upon.
48I agree with the respondent. The method Dr. Basile used to arrive at his WPI ratings for the right upper extremity cannot be reconciled with the instructions in the Guides, and therefore, should be given little weight.
49Dr. Basile testified that he followed the instructions on page 56 of the Guides to arrive at the WPI rating for the right upper extremity. Four steps are involved in making this rating.
50The first step in rating the upper extremity is rating the loss motion of each joint involved, using sections 3.1f to 3.1j which corresponds to the thumb, fingers, wrist, elbow, and shoulder. Dr. Basile’s report states “minor joint function impairment 5%.” No other information is provided. Dr. Basile testified that this rating is based on the extension of the index finger and the applicant’s wrist. He also testified that his report does not provide measurements for this rating. The ratings in sections 3.1f to 3.1j are derived from range of motion measurements. It is not possible to understand how this impairment rating was made without these measurements. Consequently, I find that this rating cannot be relied upon because there are no measurements to show how it was formulated.
51The second step in rating the upper extremity is rating the sensory deficit or pain impairment according to the five step procedure in Table 11b. Dr. Basile’s report is silent on the first two steps. Step three requires assessors to classify the impairment from Grade 1 to Grade 5. Dr. Basile classifies the impairment as Grade 4. The range of percentage ratings in Grade 4 is from 61% to 80% sensory deficit. Dr. Basile rates the applicant as having a 65% sensory deficit.
52Step four in rating the sensory deficit requires assessors to find the maximum impairment due to sensory deficit or pain for each nerve structure involved. This value is expressed as a percentage. Dr. Basile testified that he completed this step, but provided no details in his testimony and there is no indication in his report that confirms the completion of step four.
53Step five of rating the sensory deficit requires assessors multiply the percentages from steps three and step four to obtain the impairment of the upper extremity percentage rating that is converted to a WPI rating by using Table 3 of Chapter 3 of the Guides. There are no calculations in Dr. Basile’s report which show that he completed this step.
54After rating the sensory and pain deficits, the third step in calculating the upper extremity WPI rating is rating the motor deficit impairment of the injured peripheral nerve using the five step process in Table 12b. These five steps are similar to the five steps in Table 11b. In his report, Dr. Basile appears to complete step three and provides a 40% motor deficit rating. He testified that this was an error and that the actual motor deficit impairment rating is 25%. More significantly, however, his report does not show that he completed steps four and five.
55Dr. Basile testified that he used the combined value chart on page 322 of the Guides to add the upper extremity ratings. This is the fourth and final step in determining the right upper extremity WPI rating. He reports a 45% WPI rating for the right upper extremity. I do not accept this rating because Dr. Basile is unable to demonstrate that he followed the Guides when formulating this WPI rating.
56Dr. Sekyi-Otu rated the applicant as having a 29% WPI for the right upper extremity. He made an additional rating of 15% WPI for the applicant’s right hand but did not include this rating in the final WPI rating for the right upper extremity.
57The 29% WPI rating does include a 18% WPI rating for decreased grip strength.
58Dr. Sekyi-Otu opines in his report that the right hand and the grip strength ratings rate the same impairment. He explained that he did not include the 15% WPI rating for the right hand because this would result in a duplicate rating for the same impairment. Instead, he took the higher rating of 18% for the grip strength and used this to formulate the 29% WPI rating for the right upper extremity.
59The applicant argues that adding the right hand rating to the right upper extremity WPI rating would not result in a duplicate rating.
60The respondent submits that Dr. Seki-Otu’s methodology is sound and the rating for the right hand should be excluded.
61Section 3.1k of the Guides allows multiple types of impairment ratings for the upper extremity. Range of motion, motor, sensory, and pain deficits are the types of impairments which are rated according to various tables and figures within the scheme of 3.1k.
62Grip strength is assessed under section 3.1m of the Guides, which deals with musculoskeletal impairments such as joint and muscle subluxation, joint swelling, tendon and muscle tightness, and strength impairments. This is a different rating scheme for the upper extremity, but it utilizes the same range of motion ratings under 3.1k. For example, range of motion deficits for the wrist are evaluated under section 3.1h for both the 3.1k and 3.1m schemes.
63The instructive example on page 56 of the Guides makes clear that if a rating is made for a nerve disorder under section 3.1k, then a strength deficit rating under 3.1m cannot be added:
The upper extremity impairment due to a mild residual carpal tunnel syndrome is 10% (Table 16, p. 57) or 6% of the whole person (Table 3, p. 20). No additional impairment is allotted for loss of grip strength.
64However, ratings under 3.1m include ratings for range of motion and strength deficits, as noted on page 58 of the Guides. Dr. Sekyi-Otu did not make any ratings for nerve disorders. He only rated range of motion deficits and also loss of grip strength which falls under 3.1m. As both ratings are combined under 3.1m, I find that ratings for range of motion deficits of the hand and loss of grip strength can be combined.
65Consequently, I further find that the 15% WPI rating for the applicant’s hand and Dr. Sekyi-Otu’s 29% WPI rating for the right upper extremity can be added as per the methodology in 3.1m. This results in a 40% WPI rating for the right upper extremity.
66The respondent does not rely on Dr. Getahun’s rating for the right upper extremity. The applicant relies on this rating, but only if Dr. Sekyi-Otu’s rating for the range of motion hand impairments are not added to the right upper extremity rating. As this issue is resolved in the applicant’s favour, there is no need to further consider Dr. Getahun’s upper right extremity rating of 39% WPI.
Central and peripheral nervous system dysfunction
67Dr. Basile makes impairment ratings for aphasia, mental status and integrative disturbances, and emotional or behavioural disturbances based on a diagnosis of mild traumatic brain injury (MTBI) caused by the accident. The parties disagree on whether the applicant sustained a MTBI.
68The applicant submits that Dr. Basile provided reasons for the MTBI diagnosis and the corresponding impairment ratings that should be accepted.
69The respondent submits there is no objective medical evidence showing that the applicant suffered post-concussive symptoms and that the MTBI diagnosis is entirely based on the applicant’s self-reporting. The respondent further submits that various impairments rated by Dr. Basile are better explained in the reports of Dr. Waisman and Dr. Chandrasena as mental and behavioural disorders.
70Dr. Basile provides a 3% WPI rating for aphasia which is a communication disorder caused by brain damage. This disorder involves the inability to control speech and to understand language. Section 4.1a of the Guides states that this impairment is based on the results of specific testing. Dr. Basile testified that the only testing he performed for aphasia was the MoCA (Montreal Cognitive Assessment) which did not verify an abnormality in communication. He also testified that his 3% WPI rating is based on self reported word finding difficulties, and self described speech and understanding deficits.
71In the Guides, a rating for aphasia cannot be made without testing that verifies the impairment. Dr. Basile’s testing did not verify an abnormality in communication. Instead, he relied on the applicant’s self reporting to make the impairment rating. As such, I do not accept this WPI rating for aphasia because the rating was made in a manner that is inconsistent with the requirements of the Guides.
72Dr. Basile makes a 14% WPI rating for mental status and integrative functioning. Section 4.1b describes this impairment as being deficits that include the general effects of organic brain syndrome, dementia, and some specific, focal, neurologic deficiencies. The Guides also state that documentation of mental status should include information about capabilities such as the following ten capabilities:
Orientation concerning time, person, and place;
Recent recall;
Ability to remember and repeat a series of digits and repeat them in reverse order;
Ability to perform serial subtraction of 7s from 100 or 3s from 20;
Ability to do other simple calculations;
Ability to repeat three unrelated words;
Ability to spell a word such as “world” forward and backward;
Ability to repeat a short paragraph;
Ability to understand and explain proverbs or abstract thoughts; and
Judgment.
73The above list makes clear that this section is meant to rate cognitive, as opposed to physical, disfunction.
74Table 2 has four levels of impairment. The first level is described as “impairment exists, but ability remains to perform satisfactory most activities of daily living (ADL).”
75Given the impairment description for the first level, Dr. Basile’s report should identify deficits in the applicant’s cognitive functioning which impede her ability to complete her ADL. However, this was not done. The report does not explain how the applicant’s cognitive impairments impact her ability to complete her ADL. Instead, Dr. Basile reports that the applicant is independent with her ADL that require greater degree of cognitive functioning, such as household finances and managing her medications. The only impairment to completing the ADL identified in his report are physical, pain related limitations:
Although she continues to be independent for some of these functions, she is not as efficient as she was prior to the motor vehicle accident and her pain limits her ability to perform these in a timely manner.
76Prior to the accident the applicant was a successful entrepreneur who operated various businesses including a local store, a marijuana dispensary, a gas station, a gym, and a residential complex. She also organized wrestling events and music festivals. Post accident, she continues to operate her businesses but other people have taken on greater responsibilities in the management of her businesses. Even so, she continues to be involved in a way which demonstrates a high level of cognitive functioning. For example, she testified that she continues to organize wrestling events. Her duties include arranging the travel and accommodations for the wrestlers. These are complex organizational tasks that require good cognition.
77Her high level of post-accident cognitive functioning is noted in the October 6, 2020 Independent Occupational Therapy In-Home Assessment by Trudi Wright, occupational therapist, who observed:
The claimant demonstrated grossly intact cognitive abilities throughout the course of the assessment. She was able to attend fully to the assessment but also take and make a couple of business calls to direct employees and immediately return her train of thought appropriately to the assessment.
78The June 19, 2022 report of Dr. Gladstone, also notes good cognitive functioning with no deficits, except when preoccupied by pain:
Ms. Starr has no complaints about her cognitive function. She says there is no difficulty with her memory. “Her mind works well when she is not thinking about her pain.” She has no mental confusion. She is able to continue doing her own financial calculations, budgeting, billing, writing cheques, electronic banking and paying her income tax independently.
79The applicant has good cognitive functioning after the accident. Her overall functioning decreased post-accident, but this does not automatically justify an impairment rating under Table 2 of Chapter 4. Her ability to function far exceeds the minimal baseline of being able to complete most ADL. For this reason, and also because Dr. Basile did not explain how the applicant’s cognitive functioning impacts her ability to complete her ADL, I do not accept the 14% WPI rating for mental status.
80Dr. Basile gave a 10% WPI rating for emotional disturbances caused by MTBI. His report states that there “is indication of trouble controlling emotions with excessive/out of character tearing and crying.”
81This rating is made under Table 3 of Chapter 4. The impairment description is described as “Mild limitation of daily social and interpersonal functioning.”
82Dr. Basile’s report discusses how the applicant’s physical impairments effect her personal and social life. However, he does not explain how the “indications” of emotional dysfunction and out of character crying impacts her social and interpersonal functioning. As such, the analysis for this WPI rating is incomplete because no link is established between the symptoms identified by Dr. Basile and the impairment description in Table 3.
83The report of Dr. Waisman diagnoses the applicant with persistent depressive disorder, somatic symptom disorder, and post-traumatic stress disorder (PTSD). He also opines that the applicant’s psychological disorders impact on her social functioning:
Ms. Starr’s quality of relationships has deteriorated post-accident secondary to her withdrawal resulting from depressive symptomatology and pain. She also noted that irritability contributes to problems interacting appropriately and communicating effectively. She is easily triggered under stressful situations with a resultant inability to maintain social composure when stressed by demands or timelines.
84As such, there is medical evidence which shows that the applicant’s social functioning is impaired by psychological disorders.
85Dr. Basile testified that he is aware that the applicant suffers from psychological disorders. However he does not explain, neither in testimony or in his report, why he believes the applicant’s emotional dysfunction and out of character crying is caused by a probable MTBI as opposed to her depression and PTSD. As such, it is unclear why he concluded that that these symptoms are due to MTBI.
86In my view, the applicant’s social functioning deficits are better explained by the report of Dr. Waisman. He provides a diagnosis for psychological disorders and then describes the effect on the applicant’s social functioning. Dr. Basile attributes emotional disturbances to MTBI but does not explain how he distinguished these symptoms from psychological symptoms. He also does not set out how the MTBI symptoms impact social functioning. For these reasons, I find that the applicant’s social functioning deficits are, on a balance of probabilities, caused by psychological disorders. Consequently, I do not accept Dr. Basile’s 10% WPI rating for emotional impairments.
WPI rating
87When Dr. Waisman’s 15% WPI rating for psychological impairments are taken at face value, the following WPI calculation occurs:
Impairment
WPI rating
Sleep
2%
Right upper extremity
40%
Psychological impairments
15%
Total WPI rating:*
50%
*using combined values chart in the Guides
88As such, I find that the applicant is not catastrophically impaired under Criterion 7 because she does not meet the 55% WPI rating threshold.
ORDER
89The applicant is not catastrophically impaired.
90The application is dismissed.
Released: March 11, 2025
Harry Adamidis
Adjudicator