Licence Appeal Tribunal File Number: 23-006505/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:
Lynda Cyples
Applicant
and
Intact Insurance Company
Respondent
AMENDED DECISION
VICE-CHAIR:
Robert Maich
APPEARANCES:
For the Applicant:
Gordon W. Harris, Counsel
Dan Fife, Counsel
For the Respondent:
Farzana Merchant, Counsel
Susana Cardoso, Counsel
HEARD by Videoconference:
August 26, 27, 28, 30 and September 3 and 4 2024
OVERVIEW
1Lynda Cyples, the applicant, was involved in an automobile accident on October 30, 2016 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 issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined in the Schedule?
ii. Is the applicant entitled to $11,300.00 ($18,532.00 less $7,232.00 approved) for a catastrophic impairment [CAT] assessment, proposed by Kaplan and Levitt Psychologists in a treatment plan dated January 28, 2020?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3I find that the applicant has sustained a catastrophic impairment under criterion 8, as defined in s. 3.1(1)8 of the Schedule.
4The applicant is entitled to the unapproved portions of the CAT assessment treatment plan plus interest.
5The applicant is not entitled to an award.
ANALYSIS
PROCEDURAL ISSUES
The applicant’s motion regarding the evidence
6On August 22, 2024, the applicant filed a Notice of Motion seeking the following relief:
An Order to exclude the evidence of Dr. Paul A. Derry ; and
An Order to admit into evidence Dr. Levitt’s addendum report dated August 16, 2024.
7The Tribunal finds as follows:
The applicant’s motion to exclude Dr. Derry’s evidence including his report dated November 17, 2022 is denied, and
The order to admit Dr. Levitt’s report dated August 16, 2024 was granted on consent of the respondent.
8The applicant submitted it served notice of its intention to challenge the expert report of Dr. Derry 10 days prior to the hearing pursuant to Rule 10.4, but was unable to do so 21 days in advance due to the respondent’s late filing of Dr. Derry’s report.
9Further, the applicant submitted that the respondent’s witness list was 10 days late in violation of Rule 9.4; as a consequence, the applicant could not serve and file its intention to challenge the expert report with 21 days of the hearing.
10The applicant submitted she was prejudiced by only having the materials 13 days prior to the hearing, as it hindered her preparation.
11Further, the applicant submitted the materials were due in May pursuant to the case conference order of January 10, 2024. The applicant stated she should have had 60 days to respond to this evidence. The applicant submitted modest delays are not of concern, but gross delays should be enforced under the Licence Appeal Tribunal Rules, 2023 (“Rules”).
12The respondent submitted that this is a CAT determination hearing and the two psychologists called as witnesses are the only experts qualified to offer opinion evidence on CAT determination.
13Further, the respondent submitted that Dr. Derry is its only expert witness qualified to give expert opinion evidence on CAT determination.
14The respondent submitted it did not have the applicant’s consent to release raw test data until July 24, 2024, and the raw data was not delivered until August 13, 2024. It is the respondent’s position that the delay in its productions was due to the applicant’s delayed response with the raw test data. Dr. Derry could not complete his report without the raw test data and the applicant should have known its late delivery would delay Dr. Derry’s report.
15The respondent submitted the applicant should not profit from a delay caused by its own conduct, and Dr. Derry’s evidence should be admitted.
16Further, the respondent submitted that the applicant’s CAT determination expert, Dr. Levitt, had opportunity to review the report of Dr. Derry; Dr. Levitt was able to deliver an addendum report of August 16, 2024. Upon review of Dr. Derry’s report, it is noted that Dr Levitt’s addendum report reflects his unchanged opinion.
17The respondent submitted that it would be severely prejudiced should Dr. Derry’s report be excluded as it would have no expert evidence to speak to the issues of whether the applicant sustained a CAT impairment.
18Rule 9.3 provides If a party fails to comply with any Rule in respect to disclosure, exchange, or production of documents, that party may not rely on the document as evidence without the permission of the Tribunal. If a party fails to comply with any Rule with respect to the exchange or production of witness lists, the party may not call a witness who is not included on a witness list filed in compliance with the Rules to give evidence without the permission of the Tribunal. When making its determination, the Tribunal may consider any relevant factor, including: the reasons for non-compliance; whether a party will be prejudiced by the admission or exclusion of the evidence and the extent to which that prejudice can be mitigated by any other order; the extent to which the substance of the information or testimony lies within the knowledge of the other party; whether the other party opposes the admission of the evidence or testimony; and the relevance of the document, thing, or testimony to an issue in dispute in the proceeding.
19I find the following in consideration of the relevant factors:
a. Both parties bear some degree of responsibility for the reasons for non-compliance, specifically the late delivery of the raw test data and the failure to press for compliance of its delivery;
b. The respondent would be severely prejudiced by exclusion of the evidence to the extent that it would not be able to marshal a defence. The applicant would be prejudiced to a degree as it would have a reduced period to respond, however the prejudice could be mitigated by an order permitting late filing of a response;
c. The applicant had the substance of the information within its knowledge as it had both the raw test data and the occupational therapist (“OT”) report which contained the observations that acted as the foundation of information for Dr. Derry’s expert report;
d. It is noted the applicant opposes the admission of Dr. Derry’s evidence; and
e. The evidence of Dr. Derry is highly relevant to an issue in dispute in the proceeding.
20I find that the prejudice to the respondent’s case would be severe should Dr. Derry’s report be excluded as it would have no expert evidence to rely upon and be unable to marshal a defence. The prejudice to the applicant is reduced by the admission of Dr. Levitt’s addendum report dated August 16, 2024, which was admitted into evidence on consent of the respondent.
21For all these reasons, the applicant’s motion to exclude the evidence of Dr. Derry and his report dated November 19, 2022 from the hearing evidence is denied.
The respondent’s motion to strike photographs from the hearing record
22The respondent brought a motion without notice at the start of the proceeding to remove certain photographs from the applicant’s document brief found at: Tab 1, pages 1 to 10; Tab 2, page 28; Tab 6, page 81; Tab 7, pages 81 to 85; Tab 8, page 86; and Tab 9, pages 87 to 92.
23The respondent’s motion to remove the subject photographs from the applicant’s document brief and the hearing record is denied.
24The respondent submitted that the Rules permitted a preliminary issue to be raised at the commencement of the hearing. The respondent submitted that the photographs it seeks to exclude are of the applicant’s injuries and would be highly inflammatory and would compromise the Tribunal’s objectivity.
25The applicant submitted it had no notice of this issue, and the respondent had possession of these photographs for a significant period of time and had ample opportunity to raise any issue in respect to it in a timely manner.
26The applicant also submitted that the photographs are core to the issue of the injuries she sustained and how she has been affected by her injuries. Further, the Tribunal is specialized in accident benefit issues and would not be prejudiced by the photographs.
27I find the submissions of the applicant to be persuasive and find the photographs to be relevant to the issues in dispute in the proceeding before the Tribunal. I also find that they are not prejudicial to the respondent.
28The respondent’s motion is denied; the subject photographs remain within the applicant’s document brief.
SUBSTATIVE ISSUES
CAT Determination
29I find that the applicant has proven on a balance of probabilities that she sustained a catastrophic impairment under criterion 8.
30The Schedule identifies the required criteria to meet the legal test for catastrophic impairment at s. 3.1(1)8, or otherwise known as Criterion 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…”
31For the applicant to be found to have sustained a catastrophic impairment pursuant to Criterion 8, she 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.
32The American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“AMA Guides”) provides for four domains of function, specifically:
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.
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.
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
Deterioration or decompensation in work like settings: this refers to 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 supervisors, and interactions with peers.
33Catastrophic impairment is a legal test of impairment under s. 3.1(1)8 of the Schedule and in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, Chapter 14 of the AMA 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)
34The applicant submits that she sustained a marked impairment in the domains of Activities of Daily Living, Concentration Persistence and Pace, and Adaptation. The applicant submits she has sustained a moderate impairment in the domain of Social Functioning.
35The respondent submits that the applicant has sustained a moderate impairment in all four domains of functioning, namely Activities of Daily Living, Social Functioning, Concentration Persistence and Pace, and Adaptation.
Activities of Daily Living
36I find that the applicant has sustained a marked impairment under the domain of Activities of Daily Living.
37The Guides specify that activities of daily living include 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.
38The applicant relies upon the report of Dr Kaplan and Dr. Levitt, psychologists, entitled Catastrophic Impairment Determination Psychological Assessment dated May 30, 2022 (“Levitt Report”). The Levitt Report describes the applicant’s function in this domain at page 2850 of the applicant’s document brief (“AB”):
Ms. Cyples is generally inactive with respect to useful daily functioning as a result of her serious psychological disorders. Her sleep is disrupted due to pain; she wakes up frequently during the night. Upon waking up, she rests for approximately an hour and a half to manage pain. She is fatigued during the day and lies down or naps daily for an hour around 2pm. Ms. Cyples spends much of her time resting or watching television due to pain, fatigue, and depressive loss of interest. Depression results in loss of interest in initiating many daily tasks. Due to depressive amotivation, she spends three days per week on the couch watching television. These days are unpredictable. During these days, she does not change out of her pyjamas, does not shower, and rarely eats. She has withdrawn from her previously enjoyed activity of wood-working due to depressive lack of motivation.
She is fearful and avoidant of situations that will exacerbate pain. Due to pain, she is unable to tolerate standing for more than 20 minutes. She cannot tolerate more than the walking that is required to walk around a store. Due to pain, mobility issues, and her fear of exacerbating pain, her husband has taken over nearly all the cooking and cleaning. She is unable to drive due to pain and mobility issues and now relies on her husband to do the grocery shopping. Ms. Cyples’ sister commented that she has become dependent on her husband since the MVA. Ms. Cyples engages in very little in terms of daily tasks and tends to avoid most activity either due to pain, or depressive amotivation. She also avoids activities which she feels will make her feel like a burden to others. Even among close family, she tends to isolate herself out of fear of seeming like a burden. She therefore engages in very little outside of her home, and very little within her home as well.
39I find from the except above that the applicant suffers from depressive amotivation causing her to lose interest in daily tasks, spending three days per week lying down and watching television in her pyjamas unable to engage in personal care, her sleep is disturbed by pain causing her to day nap, she is avoidant of situations that she believes will exacerbate pain and has withdrawn from previously enjoyed activities; the applicant is unable to stand or walk for more than twenty minutes and her husband has taken over most household tasks to the point of dependency of the applicant; the applicant also feels she is a burden to others.
40The respondent relies upon the report of Dr. Kurzman and Ilacqua, psychologists and Dr Sekyi-Out, orthopaedic surgeon, entitled “Catastrophic Impairment Determination” (“CAT report”) dated May 13, 2019, and the report of Dr Derry, psychologist, entitled “Independent Insurer’s Psychological Examination – Catastrophic Determination” (“Derry Report”) dated November 17, 2022. The Derry Report describes the applicant’s function in this domain at page 243 of the respondent’s document brief (“RB”):
Ms. Cyples’ activities of daily living are Moderately negatively affected strictly on the basis of her current psychological condition alone. Ms. Cyples has a Moderate or Class 3 impairment in this particular domain… With regard to activities of daily living, the main area where psychological factors cause a problem for Ms. Cyples pertains to nervousness as a passenger in vehicles. She also would have some mild difficulties in motivating herself to engage in the household tasks she does participate in. She also finds she has less patience for some people, but only at some times.
However, most difficulties she has with regard to her usual pre-accident activities of daily living are due to mobility problems and pain, mostly in her leg, but in other areas as well. She is not driving, but fear is not the reason. Leg impairments and pain are the main reasons. She reports
some anxiety as a passenger. She has problems with aspects of housekeeping, and with some aspects of personal care, but pain and physical impairments are the reason. She is able to socialize, and she can enjoy herself when she is with her mother, sister, husband, other family,
and friends. She can still attend bingo and play cards. When going out, she has to use a walker, and she feels physically unable to walk very far.
41I find that Dr. Derry does not address her psychological condition in a meaningfully manner, and minimizes the limitations and changes in life from pre-accident to post-accident; for example, in the above quoted passage he refers to mild difficulties in household tasks, ignoring her dependency on her husband for these tasks.
42I note that Dr. Kurzman performed an insurer’s psychological assessment of the applicant as part of the CAT Report of November 22, 2018, and found that the applicant met the criteria for a Major Depressive Disorder and Somatic Symptom Disorder, but classified only a mild impairment in the domain of activities of daily living. Dr. Ilaquia also concurred with Dr. Kurzman’s findings of Somatic Symptom Disorder, both findings within the same CAT Report of November 22, 2018.
43I find that Dr. Derry has ignored the diagnosis of Dr. Kurzman and Dr. Ilaquia of Somatic Symptom Disorder, as well as the Somatic Symptom Disorder diagnosis by Dr. Levitt. I find Dr. Derry’s evidence to be an outlier and assign it reduced weight.
44I also note the observations of Ms. Shaw, occupational therapist at page 243 of the respondent’s document brief (“RB”):
Sleep difficulties are noted, and she lamented the loss of physical and emotional intimacy with her husband. She can attempt portions of housekeeping, although her husband has now assumed responsibility for many of those tasks.
45I find Ms. Shaw’s observations confirms the applicant’s dependency on her spouse for household tasks and note it documents the loss of physical intimacy between the applicant and her spouse.
46I find the applicant is generally inactive due to her psychological impairments. Her sleep is interrupted and awakens frequently during the night, leaving her fatigued during the day causing her to nap. She spends most of her time watching television due to pain and fatigue. She suffers with depressive amotivation and does not change out of her pyjamas or bath at least three days per week. She has withdrawn from most of her previously enjoyed activities, and those she still participates in are at a very reduced level. Her fear of exacerbating her pain has caused her to limited her activities, and she can only walk or stand for very limited periods of time. She avoids others, including close family, for fear of becoming a burden, and engages little outside or inside her home. She has also become very dependent upon her husband for most tasks and laments the loss of physical intimacy with her husband.
47I agree with Dr. Kurzman’s finding of Major Depressive Disorder, and I agree with Dr. Kurzman and Dr Ilaquia’s finding of Somatic Symptom Disorder for the reasons stated above.
48I find the applicant has sustained a marked impairment in the domain of Activities of Daily Living for the reasons stated above.
Social Functioning
49I find that the applicant has sustained a moderate impairment under the domain of Social Functioning.
50The 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.
51The parties agree that the applicant has sustained a moderate impairment in the domain of Social Function. I find that there is no issue in dispute and the applicant has sustained a moderate impairment in the domain of Social Function.
Concentration, Persistence and Pace
52I find that the applicant has sustained a marked impairment under the domain of Concentration, Persistence and Pace.
53The AMA 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.
54The applicant relies upon the Levitt Report for the domain of Concentration, Persistence and Pace. Dr. Levitt describes her function as follows at page 2852 of the AB:
Ms. Cyples generally is not engaged in useful activity, spending a significant amount of time resting or in bed. Depression, pain, and fatigue all play significant roles in her avoidance of and limited engagement in activities. She avoids reading because she is unable to absorb what she reads. She is often unable to maintain focus during conversations. She loses and misplaces items around her home. Ms. Cyples sister has also noticed that she has become forgetful. Ms. Cyples also experiences word-finding difficulties. Her multi-tasking abilities have declined which leads to increased frustration and inability to persist with task engagement when she notices she is struggling. Due to pain, fears of exacerbating pain, mobility issues, and depressive amotivation, she is generally withdrawn from most daily tasks and initiates very little. Pain avoidance and fatigue result in spending much of her time resting. In addition to spending most of her day resting and watching television, she spends more than an hour resting in the morning before getting out of bed, and then another hour laying down or napping in the afternoon. She is also unable to engage in daily activity reliably and consistently due to depressive amotivation. Three days per week, she lacks the motivation to change out of her pajamas, shower, or eat, due to persistent and severe depression. Without the support and encouragement of her husband, these days would occur even more frequently.
From a psychological point of view, Ms. Cyples useful functioning in this domain is significantly impeded. Ms. Cyples has a marked impairment with respect to concentration, persistence and pace.
55I note Dr. Levitt finds depression pain and fatigue play a role in the applicant’s avoidance and limited engagement in activities. I note his finding the applicant’s ability to concentrate is impaired evidenced by her inability to absorb what she reads, inability to focus on conversations, word finding difficulties, forgetfulness, and misplacing of items. Dr. Levit also noted her difficulty in multi-tasking leading to frustration and inability to persist in tasks; fear of pain and depressive amotivation causes her to withdraw from most daily tasks, she initiates very little and is unable to reliably engage in daily activity as evidenced by her spending three days a week in pyjamas foregoing personal care. I find Dr. Levitt’s findings to be well reasoned and give it significant weight.
56The respondent relies upon the Derry Report for the domain of Concentration Persistence and Pace. Dr. Derry describes her function as follows at page 245 of the RB:
There is a Moderate or Class 3 impairment in this area from a strictly a psychological point of view. The Guides suggest that in activities of daily living, concentration may be reflected in terms of ability to complete everyday household tasks. Deficiencies in concentration, persistence, and pace are best noted from previous work attempts or from observations in work-like settings. Ms. Cyples was able to complete the assessment with myself, and complete the testing, all in one sitting. She was able to complete the lengthy interviews with previous assessors as well, and no particular deterioration in her ability to focus or concentration appears to be documented. Her current mood problems would, on a day to day basis, cause some moderate difficulties in paying attention and following longer conversations, especially if she is tired. She complains of memory and concentration problems, and it is probable that at present, her psychological difficulties exert a moderately negative impact in this area.
57I find Dr. Derry omitted important considerations such the applicant’s depressive amotivation and inability to engage in daily activities at least three days per week; he did not address thoroughly the diagnosis of Somatic Symptom Disorder by three other qualified assessors, namely Dr. Kurzman, Dr. Ilaquia and Dr. Levitt; nor did he convincingly explain why his evidence should be preferred.
58I find that the applicant has been diagnosed with Major Depressive Disorder and Somatic Symptom Disorder, and agree with both diagnoses. She is unable to read and absorb information, unable to remain focused in conversations, misplaces items and is generally forgetful. She is also unable to persist in most tasks and becomes frustrated due to her inability to complete most tasks in a timely manner if at all. I note the respondent’s occupational therapist reported significant cueing is required for the applicant to complete tasks and she is unable to complete very few tasks independently.
59I find pain avoidance and depressive amotivation has significantly impeded the applicant’s ability to concentrate, persist in tasks and complete tasks in a timely manner.
60I find that the applicant has sustained a marked impairment in the domain of Concentration, Persistence and Pace for the reasons stated above.
Adaptation
61I find that the applicant has sustained a marked impairment under the domain of Adaptation.
62The 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.
63The applicant relies upon the Levitt Report for the domain of Adaptation. Dr Levitt describes her function as follows at pages 2852 and 2853 of the AB:
Ms. Cyples’ daily life is vastly simplified by support from her husband. She spends three days per week watching television, not changing out of her pajamas, barely eating, and not showering. This is largely due to depressive amotivation and these days occur unpredictably. If it were not for her husband’s support and encouragement, these days would likely occur even more frequently. She is fearful and avoidant of many activities, as she fears they will either exacerbate her pain, or result in her feeling like a burden on others due to increased dependence. She cannot walk without a walker and therefore avoids going shopping and leaving the home more generally. Further, her loss of independence, as she is now unable to drive, leaves her feeling like a burden on others which further contributes to avoidance of doing activities outside of home that require a drive. Even among close family, she tends to isolate herself out of fear of seeming like a burden. Ms. Cyples was unable to return to work following the MVA. Factors such as
pain, depressive amotivation, mobility issues, and fears of exacerbating pain all prevent her from returning to work. Despite significant support and vastly reduced activity and responsibility at home, she presents as deteriorated from a psychological perspective. Without her current supports, she would deteriorate further. She would also clearly deteriorate further in any workplace or work-like setting. From a psychological point of view, Ms. Cyples’ useful functioning in this domain is significantly impeded. Ms. Cyples has a marked impairment with respect to adaptation.
64The respondent relies upon the Derry Report for the domain of Adaption. Dr Derry describes her function as follows at pages 245 and 246 of the RB:
When only her psychological functioning is considered, Ms. Cyples has a moderate or Class 3 mental/behavioural impairment rating (Impairment levels compatible with some, but not all, useful function). Again, mobility issues and pain are not to be included in these ratings, and so when only her current psychological or mental/behavioural condition is taken into account, she
would have moderate difficulties in sustaining her attention to longer or complex tasks, and completing them effectively. She might have difficulties with multi-tasking and making decisions. She is not working, but psychological impairments are not the reason.
Ms. Shaw’s OT report indicates that the claimant reported heightened emotions and reduced ability to manage stress since her accident. She had not returned to her pre-accident employment, describing herself as having limitations related to physical, and emotional functioning. She has been unable to return to driving, and was frustrated about that, and irritable about community access.
65I find the applicant is highly dependent on her husband to manage daily tasks to a degree that her family is deeply concerned how she would be cared for should something happen to her husband. Her diagnosis of Somatic Symptom Disorder and Major Depressive Disorder has left her with depressive amotivation, avoidant of activities for fear of exacerbating pain and avoidant for friends and family for fear of being a burden. She spends approximately half her week in pyjamas watching television. I agree with Dr. Levitt that her condition has deteriorated since the accident and would deteriorate further but for the support of her husband. I also agree with Ms. Shaw, the respondent’s occupational therapist assessor, that she has heightened emotions and reduced ability to manage stress. She is frustrated about being unable to drive and being unable to return to work.
66I find that the applicant has sustained a marked impairment under the domain of Adaptation for the reasons stated above.
Cost of CAT Assessment
67I find on consent, that the applicant is entitled to $11,300.00 ($18,532.00 less $7,232.00 approved) for a CAT assessment, proposed by Kaplan and Levitt Psychologists in a plan dated January 28, 2020.
68The parties agreed in their submissions at the commencement of this hearing that should the applicant be found to have sustained a catastrophic injury, the cost of the CAT assessment would be paid by the respondent.
69I order on consent that the respondent pay the applicant the balance of the cost of the CAT assessment in the amount of $11,300.00 as agreed, plus interest.
Interest
70Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies to the CAT assessment award.
Award
71The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
72I find that the applicant has not met the test for an award because there is no evidence of benefits being unreasonably delayed or withheld.
73No submissions were made with respect to special award.
ORDER
74The Tribunal’s final Orders:
i. The applicant has sustained a catastrophic injury under criterion 8 of the Schedule.
ii. The respondent shall pay the applicant $11,300.00 ($18,532.00 less $7,232.00 approved) for a CAT assessment, proposed by Kaplan and Levitt Psychologists in a plan dated January 28, 2020.
iii. The respondent shall pay the applicant interest due on $11,300.00.
Released: February 7, 2025
Robert Maich
Vice-Chair