Licence Appeal Tribunal File Number: 23-013652/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:
Baransel Ortaugurlu
Applicant
and
Pembridge Insurance
Respondent
DECISION
ADJUDICATOR:
Timothy Porter
APPEARANCES:
For the Applicant:
David Shellnutt, Counsel
For the Respondent:
Linda Matthews, Counsel
Interpreter:
Zeynep Saykili (Turkish language)
Court Reporter(s):
Sharon Kemp 11/25 (9:30-11:00a.m.)
Bonnie van der Meer 11/25 – 11/26
Maureen Bizcak 11/27
Bonnie van der Meer 11/28-11/29
HEARD: by Videoconference
November 25-29, 2024
OVERVIEW
1Baransel Ortaugurlu, the applicant, was involved in an automobile accident on April 19, 2021, 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, Insurer, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was working as a self-employed bicycle delivery person when the collision occurred. Emergency services attended the scene, the accident caused physical injuries, which required surgery. The applicant has been found to be entitled to post-104 income replacement benefits and has utilized all of the non-catastrophic policy limits available.
ISSUES
3The issue in dispute is whether the applicant sustained a catastrophic impairment.
4At the beginning of the hearing, the applicant withdrew the issue of interest which was noted as an issue in dispute in the Case Conference Report and Order (CCRO).
RESULT
5I find that the applicant, on a balance of probabilities, has suffered a catastrophic impairment as defined in the Schedule.
PROCEDURAL ISSUES
The applicant’s roommate may testify
6For the reasons that follow the motion to allow Deniz Cuhader, the applicant’s current roommate, to testify is granted. Deniz Cuhader was first identified as a witness on November 6, 2024, and his witness evidence statement was exchanged on November 20, 2024.
7Applicant’s counsel submits that the delay in delivering the witness evidence statement was related to translation costs, which were diminished by having both the applicant and roommate attend for translation together, which took some time to arrange.
8The respondent objected to the witness stating that they would be prejudiced by the late notice and lack of compliance with the CCRO.
9I find that the applicant did not provide the name of the witness 45 days prior to the hearing and did not provide the summary of evidence statement 21 days prior to the hearing as set out in the CCRO.
10Rule 9.3 sets out the factors to consider when there has been a failure to comply with the Rules. These include: the reasons for non-compliance; whether a party will be prejudiced by the admission or exclusion of the evidence; the extent to which the substance of the testimony lies within the knowledge of the other party; whether the other party opposes the admission of the testimony; and the relevance of the testimony to an issue in dispute.
11I find that although the summary of evidence statement was filed two days prior to the hearing, the respondent had notice of the witness as of November 6, 2024. In this case, the applicant submits he did not comply with the CCRO because of cost constraints. No efforts were made by the respondent to bring a motion to exclude the witness before the hearing. I find that the witness has testimony that is relevant to the issues in dispute. I find that if I exclude the witness, the prejudice to the applicant is greater than to the respondent because the applicant will be unable to present corroborating testimony. I also find that any prejudice to the respondent is mitigated by the fact that the witness is not an expert, and the respondent has had the opportunity to prepare for this witness since November 6, 2024.
12I grant the applicant’s motion. The witness may testify, and the respondent will be afforded additional preparation time, if desired, following the in-chief examination of the witness. The additional time was not utilized.
ANALYSIS
The applicant sustained a criterion 8 catastrophic impairment as a result of the accident
13The issue in this case is focused on the extent of the applicant’s psychological impairments and whether he is catastrophically impaired under criterion 8.
14For the reasons that follow I find that the applicant has met the legal test and has been determined to have suffered a catastrophic impairment as a result of the April 19, 2021, accident.
15Catastrophic impairment is a legal definition and not a medical test, although the legal test involves consideration of medical evidence. The applicant is proceeding under s. 3(1)(8) of the Schedule and in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”). This section of the Schedule explores mental and behavioural impairments that are rated according to how seriously they affect a person’s useful daily functioning, physical impairments have no bearing within these ratings. 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
(“ADL”)
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 (“CPP”)
Adaptation (In a
work-like setting)
16The applicant has the burden of proving on a balance of probabilities that he is catastrophically impaired, under criterion 8, as a result of the accident.
17Given that the accident occurred on April 19, 2021, a catastrophic impairment under criterion 8 requires at least three of the four spheres of functioning to be a Class 4 (marked) impairment or one sphere to be a Class 5 (extreme) impairment.
18The applicant submits that he has suffered marked impairments in all four spheres of function. He relies on the report and testimony of Dr. Steiner, psychologist, the report by Denna Rogozinsky, OT, and the testimony of the applicant and his roommate Deniz Cuhader.
19The respondent submits that the applicant has sustained one marked impairment, in the sphere of adaptation, and disputes that the applicant is catastrophically impaired. The respondent relies on the report and testimony of Dr. Sharma, psychiatrist, the report and testimony of Avi Kaplun, OT, and the report and testimony of Dr. Ladowsky-Brooks, neuropsychologist. The respondent also challenges the report by Dr. Steiner.
20There is agreement between assessors that the functional impairment level experienced by the applicant in the sphere of Adaptation is that of a marked impairment and therefore is not in dispute. I will therefore focus on the remaining spheres.
21The applicant underwent a multi-disciplinary catastrophic assessment with Ms. Deena Rogozinsky, Occupational Therapist, Dr. Tajedin Getahun, orthopaedic surgeon, Dr. Leon Steiner, psychologist. An executive summary was issued by Dr. Irina Kay. The assessment contemplated both a criterion 7 and separately a criterion 8 assessment. The assessors concluded that the applicant had a marked class 4 impairment in all 4 spheres of function under criterion 8. as follows:
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
Marked Impairment
Social Functioning
Marked Impairment
Concentration, Persistence and Pace
Marked Impairment
Adaption (In a work-like setting)
Marked Impairment
22The applicant also underwent catastrophic impairment determination multi-disciplinary assessment with Mr. Avi Kaplun, Occupational Therapist, Dr. Ricki Ladowsky-Brooks, neuropsychologist, and Dr. Shreekant Sharma, psychiatrist and Dr. Milne, Chiropractor conducted a file review. The assessment by Dr. Sharma with regard to criterion 8 and the associated impairment in the four spheres of function is as follows:
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
Moderate Impairment
Social Functioning
Mild Impairment
Concentration, Persistence and Pace
Moderate Impairment
Adaption (In a work-like setting)
Marked Impairment
23The evidence of Dr. Ladowsky-Brooks, neuropsychologist, is provided a diminished weight because she did not assess the applicant in relation to the catastrophic impairment due to criterion 8 and testified that she had no reason to dispute the psychological diagnosis provided by the psychologist or psychiatrist who did assess the applicant for criterion 8.
The applicant has a marked impairment in his Activities of Daily Living (“ADL”)
24According to the Guides, ADL includes 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.
25For the reasons that follow, I agree with Dr. Steiner that the applicant suffers from a Class 4 marked impairment of his ADL function.
26I find the testimony of the applicant was corroborated by his roommate Deniz Cuhader who testified the applicant is awkward, housebound and requires a great deal of cuing and support across numerous ADL functions.
27I find that the applicant was clear, specific, and reliable in his testimony regarding his pre- and post-accident ADL abilities. The applicant testified that he is dependent on others. Pre-accident the applicant ate healthy, whole food meals which he prepared himself. Post accident he relies on roommates and warms up prepared foods. Pre-accident the applicant had a positive body image, shaved, and showered daily. Post-accident the applicant has a negative self-view, shaves, and showers every 2-3 days at the prompting of his roommates. Pre-accident the applicant was independent in his housekeeping tasks such as cleaning and laundry. Post-accident the applicant can only handle very light dusting, is reliant on his roommates for most cleaning activities and requires assistance with some laundry tasks. Pre-accident the applicant handled all financial responsibilities without issue and post-accident he has fewer financial matters to deal with but requires cueing to pay the rent on time. Finally, prior to the accident the applicant slept soundly for 7-8 hours on a nightly basis. He testified that post-accident he has difficulty with sleep initiation, wakes regularly, has multiple nightmare/flashbacks, and gets less than 5 hours of sleep nightly.
28I am persuaded by the evidence of the applicant’s psychological assessor Dr. Steiner because he provides information on an extensive range of ADL, incorporates the findings of his co-assessor, and provides reasoning and examples to illustrate his findings within each sphere of function. In particular, in the area of communication Dr. Steiner outlines his clinical observations that the applicant is tangential and required testing instructions to be repeated multiple times; Dr. Steiner points out that the applicant’s performance in housekeeping chores is not independent and without cuing is not effective which was also corroborated by Mr. Cuhader. Dr. Steiner also opined that the applicant has lost friends due to low mood, prefers to be alone, engages in sedentary tasks, and no longer socializes.
29I place significant weight on the assessments by Dr. Steiner because he provides extensive evidence in support of each of his ratings, met with the applicant multiple times, utilized a wide range of the applicant’s subjective reports, his co-assessor reports, the medical documentation, objective testing and demonstrated a non-defensive, balanced, and objective perspective under extensive cross-examination.
30I am not persuaded by the respondent’s inference that errors in the criterion 7 report of Dr. Steiner have carried over into the criterion 8 report. During cross-examination the respondent pointed out several rating and categorization errors in the criterion 7 report by Dr. Steiner, the respondent also requested Dr. Sharma’s opinion of these criterion 7 errors. Dr. Steiner, replied to these issues in a straight-forward manner, stating that he would have to review these in more detail but that they looked incorrect based on his findings. The respondent, and Dr. Sharma, inferred that the errors in the criterion 7 ratings had carried over into the criterion 8 ratings. No errors in the criterion 8 portion of the report were identified. I agree with the respondent and Dr. Steiner that it appears some over-rating did occur in the criterion 7 report. However, I do not accept the inference that there was carry over into the criterion 8 report as no actual issues or errors were identified in the criterion 8 report.
31I agree with the findings by Ms. Deena Rogozinsky, occupational therapist, who relates that in addition to the physical challenges the applicant continues to face, it is his mood which is “significantly affecting his ability to follow-through with tasks.” in the area of ADL. Ms. Rogozinsky highlights that the applicant used to stick to a strict diet and make healthy food, but he does not have the ability (admittedly in this instance ability refers to physical ability) or energy to do so now.” In the area of hygiene Ms. Rogozinsky highlights that in addition to physical limitations it is her opinion that the applicant’s mood is significantly affecting his ability to follow through with tasks.
32I am not persuaded by the evidence of Dr. Sharma. Dr. Sharma does not demonstrate the inclusion of input from multiple sources, in particular he does not draw on the report of co-assessor Mr. Kaplun when outlining reasoning for the ratings provided. In addition, Dr. Sharma does not review the component parts of the spheres of function and demonstrate analysis of the component’s independence, appropriateness, effectiveness, or sustainability. Finally, Dr. Sharma does not appear to incorporate his own mental health status exam and diagnosis into the review of the spheres of function and only provides the applicant’s reports and his physical capability observations as evidence of his reasoning for the rating in this domain.
33I am persuaded that the applicant is not independent in the performance of his ADLs; that he is not effective in the performance of his ADLs and that his current approach to undertaking ADLs is not sustainable without supports.
The applicant has a marked impairment in CPP
34According to the Guides, concentration, persistence, and pace is 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 a work setting. 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.
35For the reasons that follow, I find, on a balance of probabilities that the applicant suffers from a Class 4 marked impairment of his CPP function.
36I agree with the evidence of the applicant’s assessors because they draw on each other’s reports to paint a full picture of the applicant and the challenges he faces in CPP. Dr. Steiner opines that the applicant has trouble with his ability to attend, focus and concentrate which can be seen in his difficulty reading, having a conversation, watching television, and filling out paperwork. Dr. Steiner also points out the applicant has trouble remembering and points to examples of forgetfulness in forgetting to close the refrigerator, turn off the stove, lock the front entrance door and flush the toilet. Ms. Rogozinsky, OT, in her collaborative report, highlighted frequency of errors as an area of concern in CPP and provided examples such as changes to memory apparent in misplaced items such as a wallet, forgetting words in English and forgetting names and faces; a decrease in the ability to concentrate with the example of his dropping out of school in 2022 and in his self reports of difficulty following television shows. Ms. Rogozinsky also highlighted the time to complete tasks due to reduced tolerance for activity and cognitive and emotional deficits, stating that everyday tasks now take longer. Ms. Rogozinsky also highlighted the extent of assistance required to complete a task as an issue within the applicant’s CPP, stating that assigned tasks took a “prolonged” period.
37I am not persuaded by the evidence of Dr. Sharma who rated the applicant with a Class 3 Moderate impairment in the area of CPP. Within this domain, Dr. Sharma acknowledges his diagnosis of Chronic Pain Disorder with both psychological factors, and adjustment disorder with depressed mood and anxiety as he concludes on his rating. It is not clear how Dr. Sharma arrived at the rating of moderate impairment because he does not provide any examples to demonstrate his reasoning that the impairment is moderate opposed to mild or marked.
38I give minimal weight to the evidence of Mr. Kaplun, OT because he provided very little in the way of information regarding the applicant’s function in relation to CPP. I also note that while it was not in his report, he testified that the applicant is not functionally impaired, which is outside his scope of practice. Finally, throughout his testimony, I was left with the impression that Mr. Kaplun was attempting to undermine the credibility of the applicant while not making any direct findings or providing evidence for the credibility concerns being intimated.
The applicant has a marked impairment in social function
39With respect to Social Functioning, the Guides state, 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.
40For the reasons that follow, I find, on a balance of probabilities that the applicant suffers from a class 4 marked impairment of his social function.
41I agree with the evidence of Dr. Steiner with regard to social function because he clearly contrasts pre and post accident social function with examples. Dr. Steiner opines that the applicant has experienced negative changes in his mood and temperament; feels distant from family, has lost touch with most friends; declines invitations; and has been affected by his inability to go out dancing at clubs. Pre-accident Dr. Steiner highlights that the applicant enjoyed going out with friends to pubs, attending concerts, dancing, playing soccer and taking road trips and post-accident does not go out with friends, attend concerts, dance, play soccer or take road trips. Ms. Rogozinsky in her assessment, cited by Dr. Steiner, highlights that the applicant was a social person pre-accident but that currently he avoids social interactions, does not go out as often and no longer leaves his home to socialize.
42I am not persuaded by the respondent’s psychiatric assessor Dr. Sharma because the evidence cited for his rating of a Class 2 Mild impairment in this domain is that the applicant lives with two roommates whom he gets along well with; was polite, made eye contact and was not irritable during the assessment. Dr. Sharma testified that he did not probe further as to why the applicant does not go out or socialize and did not probe further as to why the applicant has become awkward socially; all of which left me with the impression that Dr. Sharma’s finding understated the applicant’s impairment in this sphere, lacked corroboration and seemed to overlook contrary evidence. In particular, the documentation review by Dr. Sharma includes reports by Miranda Mo and Associates and Dr. Steiner which indicate low mood, depression, and isolation which in my opinion should have drawn the assessor to explore more in this sphere with the applicant.
43I also place less weight on the report of Mr. Kaplun. Mr. Kaplun reported that the applicant demonstrated good results in his community outing task to a local Shoppers Drug Mart. However, under cross-examination Mr. Kaplun conceded that the applicant did not engage with any clerks, cashiers, or shoppers during the visit to the pharmacy. I believe this directly speaks to social function and I find that its absence from Mr. Kaplan’s report to impact the reliability of his findings in this sphere.
44The findings of Dr. Steiner and Ms. Rogozinski, OT reports are consistent with the applicant’s roommate’s testimony and care giver evidence submitted. The report of Ms. Mo and Ms. Chan, OT’s, highlights that the applicant is socially isolated, does not keep in touch with friends, is no longer capable of participating in the same activities as his friends and now only interacts with his two housemates. The applicant reported that he felt lonely to the assessors. I find that these reports directly corroborate the testimony of the applicant’s housemate who stated that the applicant is awkward socially with his girlfriend when she is at the apartment; reported “he is always talking about his problems, has a low mood, doesn’t seem happy and is not able to engage in group conversations”; Mr. Cuhader also related that he regularly invites the applicant out with his friends which is almost always declined, on one rare occasion when the applicant did accept the invitation out with Mr. Cuhader’s friends to a pub, the applicant was unable to clearly communicate his order to the server and sat silently with a blank expression on his face the entire time. I believe these reports to service providers and observations by the applicant’s roommate speak directly to social function and suggest on a balance of probabilities that the applicant has a marked impairment of his social sphere.
ORDER
45For the reasons above, I find, on a balance of probabilities that the applicant has suffered a catastrophic impairment in accordance with the Schedule.
Released: April 4, 2025
Timothy Porter
Adjudicator