Citation: Jabr v. TD General Insurance Company, 2025 ONLAT 23-010280/AABS

Licence Appeal Tribunal File Number: 23-010280/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:

Hany Jabr

Applicant

and

TD General Insurance Company

Respondent

DECISION

VICE-CHAIR:

Robert Maich

APPEARANCES:

For the Applicant:

Jeremy Solomon, Counsel

For the Respondent:

Noah Shapiro, Counsel

Heard by Videoconference:

September 23, 24, 25 and 26, 2024

OVERVIEW

1Hany Jabr, the applicant, was involved in an automobile accident on March 3, 2017, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

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

ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 with respect to issue 1 above because it unreasonably withheld or delayed payments to the applicant?

RESULT

3I find that the applicant sustained a catastrophic impairment as defined by the Schedule.

4I find that the respondent is not liable to pay an award under s. 10 of Reg. 664 for unreasonably withheld or delayed payments to the applicant.

PROCEDURAL ISSUES

Motion to Amend Witness List

5The applicant filed a motion on September 12, 2024 to amend the witness list prescribed within the case conference report and order (“CCRO”) of February 15, 2024. The applicant requested the motion be heard at the commencement of this hearing. Specifically, the motion is to allow Ms. Nikita D’Souza, occupational therapist, and Dr. Giselle Braganza, psychologist, to testify at the hearing.

6The respondent objected and filed a notice of motion on September 13, 2024, requesting the applicant’s motion be heard on an urgent basis. The respondent submitted he would be prejudiced if he did not know the applicant’s witnesses for preparation purposes prior to the hearing. The respondent’s motion was denied on the basis that the applicant’s motion involved only two witnesses, one of which was summonsed by the respondent. The motion adjudicator disagreed that preparing for the witnesses would cause prejudice to any party, and directed that the motion be heard by the hearing adjudicator by order dated September 17, 2024.

7I find the applicant’s motion is allowed: Ms. D’Souza, and Dr. Braganza may testify at the hearing.

8The applicant submitted that Ms. D’Souza, occupational therapist, would testify in place of Ms. Galit Liffshiz, occupational therapist with the same time requirements, and Dr. Braganza, psychologist would testify in place of Dr. Lisa Becker, psychiatrist. The applicant submitted that the reports of all witness were provided to the respondent well in advance of the hearing, and the witness list and will say statements were served on the respondent in advance of the 21 day deadline. Further the applicant submitted that the respondent had previously advised it determined Dr. Braganza would be cross-examined, and the change of the applicant’s witness list is minor and would not prejudice the respondent.

9The applicant relies upon Rule 3.1 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”), which states that the Rules are to be liberally interpreted and applied to ensure procedural fairness, and the Tribunal has the authority to apply, waive or vary the Rules. In addition, the applicant cited s. 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), which provides authority for the Tribunal to control its processes, including making orders with respect to the procedures and practices that apply in any particular proceeding.

10The respondent submitted it received the applicant’s "updated witness list" on August 21, 2024, which is only 33 days prior to the commencement of this hearing, and it argued the applicant's "updated witness list" was therefore not served within the timelines established by either the Rules or the CCRO as issued. Further, the respondent submitted that allowing the applicant to substitute witnesses mere weeks prior to a hearing is a direct prejudice, as the respondent could not anticipate such substitutions, and mere days prior to this hearing is not sufficient time to prepare, and it argued it amounts to direct prejudice.

11I find the applicant’s substitution of one occupational therapist with another is of minor significance, and no prejudice to the respondent, as it was in possession of all the relevant reports and materials for a significant period of time prior to the hearing. The nature and duration of the substitution is minor and involves a half day of testimony or less. I agree with the motion adjudicator that preparation time is not in and of itself prejudice. The respondent did not specifically demonstrate any actual prejudice in how preparation for a witness of the same expertise could be prejudicial. I find the applicant’s substitution of Dr. Braganza, psychologist, for Dr. Becker, psychiatrist, also to be minor, particularly as the respondent had prepared to cross-examine Dr. Braganza in any event.

12I agree with the applicant that the Tribunal has the authority to allow this substitution of witnesses, and, finding no prejudice to the respondent, the motion is granted.

Motion in respect to Disclosure

13During the course of the hearing, the applicant made a motion that the respondent failed to disclose an updated accident benefit (“AB”) file from February 2021. Further, the applicant submitted the case conference report and order dated February 15, 2024 (“CCRO”) required disclosure from November 1, 2020 to date within 45 days from the date of the CCRO, upon written request by the applicant.

14Prior to the CCRO, on January 16, 2024, the applicant requested the AB file. On January 17, 2024 the respondent said it would follow up with an email link. The applicant submitted that they never received an email link to the AB file. However, the respondent provided records that the email containing the link was sent on January 30, 2024. Subsequent to the CCRO, the applicant again requested the AB file by email on August 29, 2024, and he received another reply from the respondent on August 30, 2024 that an email link would follow. Again, the applicant submitted they never received an email link to the AB file. Again, the respondent provided records that the promised link was sent.

15During the course of this motion, it became readily apparent that the respondent had sent the disclosed documents as promised, however, it was also apparent that the emails sent did not identify the respondent as the sender, nor did it contain a file reference due to privacy concerns. On one occasion, the applicant called a number provided on the unidentified emailed disclosure link, but was put on hold for 80 minutes until disconnected.

16The applicant stated that it did not see the updated AB file until production of the Joint Document Brief by the respondent.

17I find that the respondent complied with the disclosure requests and CCRO; however, I caution that sending an unidentified email with an unidentified link is not necessarily sufficient to discharge the burden of disclosure in itself and the overall conduct of the parties must be considered. I find no evidence of a purposeful attempt to frustrate this process by either party.

ANALYSIS

CAT Determination

18I find that the applicant has proven on a balance of probabilities that he sustained a catastrophic impairment under Criterion 8 of the Schedule.

19The Schedule identifies the required criteria to meet the legal test for catastrophic impairment under Criterion 8 at s. 3.1(1)8. Specifically, the Schedule defines a Criterion 8 impairment as follows:

“…an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder…”

20For the applicant to be found to have sustained a catastrophic impairment pursuant to Criterion 8 of the Schedule, he must be found to have sustained a marked impairment (class 4) in at least three domains of function, or be found to have sustained an extreme impairment (class 5) in one or more domains of function.

21The American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”) provides for four domains of function, specifically:

1. Activities of daily living: including adaptive activities, such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring for self, grooming, using the telephone and directory, using the post office, and working.

2. Social functioning: ability to get along with others, including family members, friends, neighbors, grocery clerks, landlords, and others of the public; social functioning in work situations may involve responding appropriately to persons in authority and cooperative behavior toward coworkers.

3. Concentration, persistence, and pace (task completion): this refers to the patient’s ability to sustain focused attention long enough to permit the completion of everyday tasks in the workplace or home, including deficiencies in concentration, persistence, and pace that have been observed at work or in work like settings and information from the mental status examination and from psychological testing.

4. Deterioration or decompensation in work like settings: describe failures to adapt to stressful circumstances that cause the individual either to withdraw from the situation or to experience signs and symptoms and difficulties with activities of daily living, social relationships, and concentration, persistence, and pace including any decompensation at work, which might involve decisions, attendance, schedules, completing tasks, interactions with supervisors and peers.

22Whether an insured suffered a catastrophic impairment under Criterion 8 is a legal test of impairment under s. 3(1)(8) of the Schedule and is considered in accordance with the Guides. Chapter 14 of the Guides set out the four spheres of functioning and the classification of impairments as represented in the chart below:

Area or Aspect of Functioning

Class 1: NO Impairment

Class 2: MILD Impairment

Class 3: MODERATE Impairment

Class 4: MARKED Impairment

Class 5: EXTREME Impairment

Activities of Daily Living

No impairment is noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some, but not all useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

Social Functioning

Concentration, Persistence and Pace

Adaptation (In a work-like setting)

23The applicant submits that he sustained a marked impairment in the domains of Activities of Daily Living, Concentration Persistence and Pace, and Adaptation. The applicant agrees with the respondent that a moderate impairment was sustained in the domain of Social Functioning.

24The respondent submits that the applicant sustained a moderate impairment in the following domains of functioning: Social Functioning, Concentration Persistence and Pace, and Adaptation. The respondent agrees the applicant has sustained a marked impairment in the domain of Activities of Daily Living.

Activities of Daily Living

25I find that the applicant has sustained a marked impairment under the domain of Activities of Daily Living.

26The Guides specify that activities of daily living functioning incudes self-care, personal hygiene, communication, ambulation, travel, sexual functioning, sleep, and social and recreational activities. Any limitations in these activities should be related to the mental disorder. 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 of initiating and participating in these activities independent of supervision or direction. What is assessed is not the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

27It is agreed between the parties that the applicant has a marked impairment under the domain of Activities of Daily Living.

Social Functioning

28I find that the applicant has not sustained a marked or extreme impairment under the domain of Social Functioning.

29The Guides specify that social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords, or bus drivers. Impaired social functioning may be demonstrated by a 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.

30It is agreed between the parties that the applicant has not sustained a marked or extreme impairment under the Domaine of Socialization.

Concentration, Persistence and Pace

31I find that the applicant has sustained a marked impairment under the domain of Concentration, Persistence and Pace.

32The Guides specify that the factors to be considered under this domain are concentration, persistence, and pace needed to perform many activities of daily living, including task completion. Task completion refers to the ability to sustain focused attention long enough to complete tasks commonly found in activities of daily living to sustain focused attention long enough to complete tasks commonly found in activities of daily living or at work. In order to consider strength and weaknesses in mental concentration, there is a consideration of frequency of errors, the time it takes to complete the task, and the extent to which assistance is required to complete the tasks.

33The applicant supports his position that he suffered a marked impairment in this domain by relying upon the following evidence: report of Dr Braganza, psychiatrist, dated February 8, 2022, the reports of Ms. D’Souza, occupational therapist dated December 8 and 9, 2021, and the report of Dr. Waisman, psychiatrist, dated October 25, 2022.

34The respondent supports its position that the applicant suffered a moderate impairment on this domain by relying on the following evidence: the in-home ADL functional assessment dated July 6, 2022 and community functional of assessment of July 7, 2022 conducted by Ms. Lynn Rutledge, occupational therapist, and the psychiatry report of June 8, 2022, authored by Dr. Emily Gavett, psychiatrist.

35The evidence of the applicant and Ms. D’Souza, occupational therapist, supports the proposition that the applicant was working at a high stress job that involved supervising the tasks of 14 to 20 people at any given time, as well as answering client calls. There is a dispute as to the exact job title of the applicant, but I find no compelling evidence to dispute the essential tasks of the applicant’s employment.

36It is also the evidence of the applicant and Ms. D’Souza that the applicant was unable to complete the essential tasks of his job after the accident as the evidence bears out he was unable to multi-task, effectively disseminate information and concentrate.

37In respect to Ms. D’Souza’s cognitive testing, the applicant only completed 1 of the tasks, namely the scheduling task. Ms. D’Souza testified the applicant preformed poorly in the scheduling task, completing only 11 of 17 items. Of the 11 items completed, only 4 were correct. Leg pain was a significant issue throughout the testing and was attributed to poor performance on day 1 when the applicant was unable to complete any in-home tasks staged in the assessor’s office, demonstrating poor persistence. The applicant described pain as 7 out of 10 on day 1, and then 8 out of 10 on day 2 when the cognitive tests were attempted. The applicant was unable to complete the recall task on day 2 describing pain had escalated to 10 out of 10. Ms. D’Souza observed in cognitive testing notably poor performance with reduced attention and comprehension and poor attention to detail. In working ability and general ability, Ms. D’Souza noted poor performance and not able to persist, resulting in no tasks completed. I find this persuasive evidence that the applicant has a cognitive impairment by his inability to complete tasks. Further, I accept the evidence of the applicant and Ms. D’Souza that the applicant was not able to complete the essential tasks of his employment after the accident.

38In the applicant’s psychological assessment authored by Dr. Braganza, dated February 8, 2022, I note that the applicant’s motor vehicle accident of 2014 (“MVA 2014”) and elevator accident of 2014 (“EA 2014”), did not result in any cognitive issues. I note the applicant had some issues with anxiety and panic attacks in high school which were resolved or managed by cognitive behavioural treatment and medication. The conditions resurfaced in 2015 and 2016, but were resolved or managed. After the motor vehicle accident of March 3, 2017 (“MVA 2017”), being the subject accident of this application, I note the symptoms had returned, and in addition, the applicant consistently ruminated about pain with a consistent focus on pain making the symptoms worse. Dr. Braganza diagnosed the following: Somatic Symptom Disorder with Predominant Pain Major Depressive Disorder Unspecified Anxiety Disorder (features of Generalized), Anxiety Disorder Post Traumatic Stress Disorder (fear of vehicular travel) and Panic Disorder.

39In Dr. Braganza’s report, she also noted the applicant was off work due to pain up to 8 times between 2015 and 2018, and the applicant reported that he was “living with pain”, prior to MVA 2017. However, he was able to do his job. She relied upon the observations of Ms. D’Souza that the applicant displayed significant impairments in his ability to concentrate, pace and persist; he was unable to tolerate greater than five minutes of sustained task engagement on the first day and 70 minutes on the second day. Dr. Braganza concluded that the applicant had a marked impairment in concentration, persistence and pace. I find this evidence persuasive due to the detailed testing and methodology applied by Dr. Braganza.

40In the psychiatry evaluation report of Dr. Z. Waisman, psychiatrist, dated October 25, 2022, he diagnosed the applicant with PTSD, Major Depressive Disorder, moderate and nonpsychotic, and Somatic Symptom Disorder with predominant pain. Dr. Waisman concluded the applicant’s psychiatric impairments are permanent, and that prospects of recovery or improvement are poor. He further stated the applicant’s injuries are the culmination of the MVA 2014, the EA 2014, and the MVA 2017, and that it is impossible to assign weight to these events in any scientifically reliable manner. I do not find this aspect of his evidence to be persuasive as it is taken out of context of the evaluation and not in assessment under criterion 8. However, I do accept the expert opinion evidence of Dr. Waisman in so far as the applicant’s psychiatric impairments are permanent.

41The in-home ADL functional assessment dated July 6, 2022 and community functional of assessment of July 7, 2022 conducted by Ms. Lynn Rutledge, occupational therapist, indicated significant explanatory instruction as well as significant cuing was required for the applicant to complete tasks, and it was found that the applicant could not persist for more than a few minutes at most tasks and noted many tasks were not attempted. Ms. Rutledge noted the applicant could not maintain a physical position for more than 10 to 15 minutes, save for longer periods in his recliner. I note that a recliner was not available for the staged in-office assessments of Ms. D’Souza.

42Ms. Rutledge’s in-office community function assessment included a planning/scheduling task of 15 items. The applicant required significant cuing and explanations, complained of headache as well as being so fatigued as to read one line over 8 times; he complained he had trouble reading with his headache. The applicant required instruction as to where to write his answers, but it is not clear if he was able to write anything down. The applicant required a break and continued the exercise orally with Ms. Rutledge. The busy day planner task was partially written, but again required Ms. Rutledge to orally assist the applicant with completion. He was unable to complete the weekly calendar activity complaining of pain and needing to lie down. I find the extensive cuing and assistance given here bring into question the ability of the applicant to independently complete the subject tasks, and also brings into question Ms. Rutledge’s conclusions in terms of the applicant’s abilities due to the methodology applied.

43Given the extensive cuing and assistance given to the applicant by the assessor, I give Ms. Rutledge’s reports less weight.

44Dr. Gavett, psychiatrist, testified that she diagnosed the applicant with moderate Major Depressive Disorder with anxious distress and somatic symptom disorder focused on pain at a severe level. Dr. Gavett noted in her psychiatry report of June 8, 2022 that she did not apply any cognitive tests to the applicant, and she instead relied upon the occupational therapy reports of Ms. Rutledge. However, Dr Gavett did comment that the applicant’s psychological injuries would not have been exacerbated but for the accident. Although Dr. Gavett reported she was able to converse well with the applicant and he could relate his history well, her assessment of a mild impairment is largely based upon the observations of Ms. Rutledge with frequent reference to her findings. The extensive reliance on Ms. Rutledge’s report results in my finding of Dr. Gavett’s report also being assigned less weight in the many areas dependent upon Ms. Rutledge’s’ reports.

45The applicant's evidence on this domain is compelling because I find the expert opinion evidence of Dr. Braganza to be well reasoned and with reliable underpinnings of the more accurate observations of Ms. D’Souza. The respondent's evidence does not successfully challenge my findings about the applicant's evidence, because Dr. Gavett relied extensively on the observations and the methodology employed by Ms. Rutledge which tainted her observations due to her extensive cuing.

46I find the applicant has sustained a marked impairment in the domain of concentration, persistence and pace for the reasons stated above.

Adaptation

47I find that the applicant has sustained a marked impairment under the domain of Adaptation.

48The Guides specify that adaptation (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 of signs and symptoms of a mental disorder, that is, 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.

49The applicant submits that Ms. D’Souza concluded over the course of testing the applicant’s functional presentation is not conductive to a workplace environment. Further, she stated that the applicant’s somatic pre-occupation, increased pain, fear of symptom exacerbation, anxiety and low mood impact his ability to respond to mildly stressful situations which results in task avoidance or premature task withdrawal. In consideration of these factors Dr. Braganza concluded the impairments within the adaptation domain are marked.

50Dr. Braganza detailed in her mental/behavioural assessment, dated November 15, 2021, the applicant self-reports that pain is the primary limiting factor in his social activities, causing him to withdraw, and he acknowledges difficulties with comprehension, multi-tasking, memory, prioritizing, initiation, completing tasks and making decisions. He attempted to return to a job he liked on several occasion after the accident, but he was unable to sustain it. Dr. Braganza noted Ms. D’Souza’s observations that the applicant can no longer sustain gainful employment, requires assistance with aspects of self-care and no longer completes housekeeping tasks. He spends most of his time at home and is avoidant of activities with others out of fear of symptom exacerbation. This avoidant behaviour was evident during testing, and he displayed increased presence of pain within 40 minutes of testing. He attempted to engage in tasks for a few minutes before withdrawing citing pain. He displayed poor coping tolerances and reduced adaptation to stress; and he was unable to cope with his heightened symptomology.

51I find Dr. Braganza’s reasoning to be sound, detailed and persuasive. Her conclusions connect well to the actual experience of the applicant in his repeated failed attempts to return to work. Dr Braganza’s conclusions and the actual experience of the applicant connects to the Guides outline of repeated failure to adapt to stressful circumstances causing withdrawal from the situation or experience exacerbation of symptom, decompensation and having difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.

52The respondent submits Dr. Gavett describes her assessment as full of questioning in emotional and cognitive realms. However, I note that earlier in her report she stated did not apply any cognitive tests. She noted that the applicant was able to respond to questioning with normal timelines with good memory of past events, but he did not demonstrate the capacity to maintain work-appropriate engagement. Dr. Gavett asserts in her opinion that the evidence supports a moderate impairment, and she refers to 18 block quotes without relating it to her conclusion. I find there is no related explanation as to why Dr. Gavett opined a moderate impairment. Further, the 18 block quotes in Dr. Gavett’s assessment did not provide an analysis of the evidence. Two of the 18 block quotes included large excerpts from Dr. Braganza, without any commentary from Dr. Gavett. I find the lack of a detailed analysis of the evidence referred to in Dr. Gavett’s report is cause to assign it less weight.

53Since I prefer the applicant’s evidence over the respondent’s evidence, I find that the applicant has sustained a marked impairment in the domain of Adaptation for the reasons stated above.

CONCLUSION

54I find that the applicant has sustained a marked impairment in the domains of Activities of Daily Living, Concentration Persistence and Pace, and Adaptation. I find that the applicant has sustained a moderate impairment in the domain of Social Functioning.

55I find that the applicant has sustained a marked impairment in three of four domains of function, and I find the applicant has sustained a catastrophic impairment pursuant to Criterion 8 of the Schedule.

AWARD

56No submissions were made in respect to award. Further, since no benefits are ordered as payable, there is no basis for an award.

ORDER

57The Tribunal orders as follows:

i. I find the applicant sustained a catastrophic impairment as defined by the Schedule.

ii. I find the respondent is not liable to pay an award under s. 10 of Reg. 664 with respect to issue 1 above because it unreasonably withheld or delayed payments to the applicant.