Anna Zdyrko v. Intact Insurance Company, 2025 CanLII 3850

Citation: Zdyrko v. Intact Insurance, 2025 ONLAT 23-015273/AABS

Licence Appeal Tribunal File Number: 23-015273/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:

Anna Zdyrko

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Nathan Prince

APPEARANCES:

For the Applicant: Anna Zdyrko, Applicant Ryan St. Aubin, Counsel

For the Respondent: Matthew Day, Claims Representative (November 25, 27, and 28, 2024) Farzana Merchant, Counsel Gurpreet Singh, Counsel

Interpreters: Darius Izewski (November 25, 2024) Peter Gorski (November 26, 2024)

HEARD by Videoconference: November 25 to 29, 2024

OVERVIEW

1Anna Zdyrko, the applicant, was involved in an automobile accident on July 8, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by the respondent, 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 by the Schedule? Note: catastrophic impairment is being disputed under s.3.1(1)8 of the Schedule.

ii. Is the applicant entitled to $2,254.20 for psychological services, proposed by MyoHealth Rehab and Wellness Centre in a treatment plan/OCF-18 ("plan") submitted October 11, 2021 and denied December 29, 2021?

iii. Is the applicant entitled to $2,460.00 for a driver reintegration assessment, proposed by MyoHealth Rehab and Wellness Centre in a plan submitted January 13, 2022 and denied February 1, 2022?

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?

v. Is the applicant entitled to interest on any overdue payment of benefits?

3At the outset of the hearing, the parties advised that issues ii, iii, iv, and v above had been resolved. As such, the only issue before me was issue i above.

RESULT

4The applicant has not met her onus to demonstrate that she sustained a catastrophic impairment as defined by s.3.1(1)8 of the Schedule.

ANALYSIS

The applicant has not demonstrated that she is catastrophically impaired under section 3.1(1)8 of the Schedule

5I find that the applicant is not catastrophically impaired ("CAT") as defined in the Schedule under section 3.1(1)8 ("Criterion 8").

6The applicant is seeking to be deemed CAT under criterion 8. In order to prove her case, the applicant must demonstrate that she has suffered accident-related impairments that result in marked (Class 4) impairments in three or more areas of function or an extreme (Class 5) impairment in one or more areas of function according to the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition ("AMA Guides"), due to a mental or behavioural disorder. Mental and behavioural impairments are rated according to how seriously they affect a person's useful daily functioning. The AMA Guides set out the four spheres or areas of function and the relative levels of impairment. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one, see: Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30.

7The four spheres of functioning as set out in the AMA Guides are as follows:

i. activities of daily living

ii. social functioning

iii. concentration, persistence, and pace

iv. adaptation

8Within each sphere, there are 5 possible levels of impairment:

i. Class 1 – no impairment: No impairment is noted

ii. Class 2 – mild impairment: Impairment levels are compatible with most useful functioning

iii. Class 3 – moderate impairment: Impairment levels are compatible with some, but not all useful functioning

iv. Class 4 – marked impairment: Impairment levels significantly impede useful functioning

v. Class 5 – extreme impairment: Impairment levels preclude useful functioning

9The applicant relies on the occupational therapy CAT report completed by Ms. Bhumi Thakkar on March 27, 2023 and the psychiatry CAT report completed by Dr. Zohar Waisman on May 8, 2023.

10The respondent relies on occupational therapy CAT reports of Ms. Priya Nair completed on February 28, 2024 and the psychiatry CAT reports of Dr. Ahmed Jwely completed on February 28, 2024 and April 5, 2024.

11Both Dr. Waisman and Dr. Jwely agree that the applicant suffers from a Class 3 impairment in the sphere of activities of daily living and a Class 4 impairment in the sphere of adaptation. The parties submitted that they agree with the conclusions of Dr. Waisman and Dr. Jwely in this regard. Accordingly, I accept that the applicant suffers from a Class 3 impairment in the sphere of activities of daily living and a Class 4 impairment in the sphere of adaptation.

12The two spheres which remain in dispute are social functioning and concentration, persistence, and pace. The applicant submits that she suffers from a Class 4 impairment in both spheres while the respondent submits that the applicant suffers from a Class 3 impairment in both spheres.

13Neither party argued that the applicant suffers from a Class 5 impairment and therefore the applicant must show that she suffers from a Class 4 impairment in three of the four spheres. Given that the applicant suffers from a Class 3 impairment in activities of daily living and a Class 4 impairment in adaptation, it follows that the applicant must demonstrate that she suffers a Class 4 impairment in both the sphere of social functioning and in the sphere of concentration, persistence, and pace in order to meet the definition of CAT under Criterion 8.

14For the reasons that follow, I find on a balance of probabilities that the applicant does not meet the definition of CAT under Criterion 8.

The applicant suffers from a Class 3 impairment in the sphere of Social Functioning

15I find that the applicant suffers from a Class 3 impairment in the sphere of social functioning.

16As per the AMA Guides, 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 history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Strength 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.

17Both Dr. Waisman and Dr. Jwely agree that the applicant suffers from psychological impairments as a result of the accident. Dr. Waisman diagnosed the applicant with persistent depressive disorder with persistent major depressive episode, moderate and somatic symptoms disorder. Dr. Jwely diagnosed the applicant with Chronic Depression, Mild to Moderate (F34.1), Chronic Specific Phobia (Vehicle), Moderate to Severe (F40.2) and Chronic Somatic (Pain) Disorder (F45.1).

18There is also agreement that the applicant experiences functional limitations as a result of her psychological impairments; however, Dr. Waisman and Dr. Jwely differ in their opinion as to whether the severity of her symptoms rises to the level of a Class 4 impairment. Dr. Waisman opines that the applicant suffers from a Class 4 impairment whereas Dr. Jwely found that the applicant suffers from a Class 3 impairment.

19I find Dr. Waisman's s. 25 report to be of little assistance in determining the level of the applicant's impairment in this sphere. While Dr. Waisman opines that the applicant suffers from a Class 4 impairment, his analysis is brief and does not engage in a meaningful discussion of the evidence as it relates to the applicant's function. Dr. Waisman's analysis simply states that the quality of the applicant's relationships has deteriorated post-accident, and that the applicant's irritability contributes to problems interacting appropriately and communicating effectively. He further notes that the applicant is easily triggered under stressful situations with a resultant inability to maintain social composure when stressed by demands or timelines. However, there is no discussion as to how these conclusions were reached, and more importantly, there is no discussion as to why these findings would equate to a Class 4 impairment in any event. While I am alive to the fact that the nature of the applicant's relationships has changed post-accident, I do not find Dr. Waisman's report to be persuasive in establishing that the applicant's impairments rise to the level of a Class 4 impairment.

20I find the s. 44 report of Dr. Jwely to be persuasive because he undertook a thorough analysis of the applicant's social functioning, and his observations are consistent with the bulk of the evidence. For example, Dr. Jwely administered the WHODAS 2.0 to assist in ascertaining the applicant's level of social functioning. The applicant submitted that this test was not appropriate for use in geriatric populations; however, the respondent pointed me to the WHO website which indicates that the test is "applicable across cultures, in all adult populations". Dr. Jwely found that the applicant's responses on the WHODAS 2.0 indicate that, while there are challenges in various domains of functioning, these do not rise to the level of a marked impairment. In the realms of understanding and communicating, and getting along with people, the difficulties were within a range that suggests that the applicant retains a significant degree of functionality in day-to-day interactions and social activities. In terms of participation in society, Dr. Jwely found that the applicant demonstrates the capacity to engage, albeit with more effort and possible adaptations. Based on the WHODAS 2.0, Dr. Jwely concluded that the overall picture is one of an individual who faces difficulties, but who also continues to navigate her daily life and social world with a level of independence that falls within a moderate impairment categorization.

21In addition to administering the WHODAS 2.0, Dr. Jwely considered the findings of the occupational therapy report of Ms. Nair. Specifically, Dr. Jwely noted that the applicant continues to interact with her family members regularly and opined that this is indicative of a preserved aspect of her social life. Furthermore, Dr. Jwely noted that despite withdrawing from many pre-accident leisure and social activities such as visiting extended family, the applicant still engages with her extended family when they visit her at her home. Dr. Jwely opined that the applicant's ability to engage in these interactions, albeit in a limited context, reflects her social maturity, consideration for others, and the ability to initiate social contact within her comfort zone. Dr. Jwely concluded that although the applicant's capacity for social interaction is somewhat diminished, it does not severely limit her ability to maintain meaningful social connections.

22I find that the testimony of the applicant and her daughter align with Dr. Jwely's findings and opinion that the applicant suffers from a Class 3 impairment. The applicant and her daughter testified that, prior to the accident, the applicant was actively engaged with her family and friends. She would often host family during the holidays and special occasions, fish with her husband, visit her two sisters and three children, take her granddaughter to the playground, and visit her friend's cottage. They further testified that, since the accident, the applicant has largely been confined to her house and no longer visits family or friends, no longer goes fishing, and does not visit her friend's cottage.

23However, the applicant testified that she maintains significant contact with her tight-knit family. She testified that she speaks to her sister almost daily and that family members visit her several times per week. When family members come over, the applicant actively participates in group activities such as board games, puzzles, and sudokus. Furthermore, the applicant noted that she has maintained a great relationship with her husband and that they are enjoying retirement. When asked about her friends during cross-examination, the applicant indicated that she has many friends and that she has been able to maintain these friendships. Moreover, while the applicant may be largely housebound, she nonetheless noted that she does not feel socially isolated because she still has family and friends that she communicates with on a regular basis.

24In addition to the relationships with her family and friends, I find that the applicant has also demonstrated an ability to interact with individuals throughout her various occupational therapy assessments. For example, Ms. Thakkar found that the applicant was easily able to develop rapport during her s. 25 assessment. She was seen to start conversations and relay stories about various topics and was passionate to speak about her interests, hobbies, and friends/family. Similarly, during her s. 44 assessment with Ms. Nair, the applicant interacted politely with the assessor and the interpreter and demonstrated her capacity to communicate effectively and maintain social etiquette. Moreover, during the community assessment with Ms. Thakkar, the applicant engaged in a grocery shopping task and was seen to be interacting appropriately with grocery store clerks.

25Based on the totality of the evidence, I am not persuaded that the applicant meets the test for a Class 4 impairment because I find that her impairments do not significantly impede useful functioning. While she no longer engages in social activities outside the home, the evidence suggests that the applicant is able to interact appropriately and communicate effectively with other individuals, is not socially isolated, and maintains close relationships with her family and friends. I find this to be more in line with a Class 3 impairment because the applicant exhibits a level of some, but not all, useful functioning.

26Having found that the applicant does not have a class 4 impairment in the sphere of social functioning, this is sufficient to find that she is not catastrophically impaired under criterion 8; however, for completeness, I shall continue with the analysis of concentration, persistence, and pace.

The applicant suffers from a Class 3 impairment in the sphere of concentration, persistence, and pace

27I find that the applicant suffers from a Class 3 impairment in the sphere of concentration, persistence, and pace.

28As per the AMA Guides, concentration, persistence, and pace refers to the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings. 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, such as day-treatment centres and incentive work programs. In evaluating fitness for work, capability may be assessed by the completion of such tasks as filing index cards, locating telephone numbers and disassembling and reassembling objects. 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. Marked impairment can be revealed by the inability to complete most tasks requiring sustained concentration in a timely manner.

29Both Dr. Waisman and Dr. Jwely agree that there are limitations with respect to this domain however, they differ in their opinion as to whether the limitations rise to the level of a Class 4 impairment. Dr. Waisman opines that the applicant suffers from a Class 4 impairment, whereas Dr. Jwely found that the applicant suffers from a Class 3 impairment.

30Again, Dr. Waisman's report is of little assistance in determining the level of impairment in this domain. His entire analysis consists of the following statement: "Her reported cognitive difficulties are due to the interaction of pain and depression. As such, Ms. Zdyrko appears class 4 marked impairment under concentration, persistence, and pace at the present time." This statement does not address the level of impairment with respect to concentration, persistence, and pace and does not involve any analysis as to why the applicant's impairment was determined to be Class 4 or cite to specific examples to assist in the analysis. As such, I put little weight on Dr. Waisman's conclusion that the applicant has suffered a Class 4 impairment in this domain.

31I prefer the opinion of Dr. Jwely that the applicant suffers from a Class 3 impairment in this domain because his findings are congruent with the bulk of the evidence before me. For example, Dr. Jwely notes that although the applicant reported poor concentration and forgetfulness, she was able to tolerate the clinical interview and participate in standardized assessments. In reviewing Ms. Nair's occupation therapy assessment, Dr. Jwely noted that, despite some challenges, the applicant also showed areas of strength: the applicant was able to concentrate long enough to plan a three-course meal and followed the instructions provided with minimal errors. Dr. Jwely opined that this showcases the applicant's ability to focus on a task and carry it to completion, reflecting her capacity for sustained attention and mental concentration within a structured setting. Dr. Jwely acknowledged that that applicant has some difficulty with sustaining focus and maintaining pace; however, the impairment does not preclude her from completing tasks or participating in day-to-day life activities. In concluding that the applicant suffers from a Class 3 impairment, Dr. Jwely opines that she does not display the significant deficits in concentration or persistence that would be associated with a marked impairment, which would be more disabling and pervasive across all activities.

32Furthermore, I find the occupational therapy reports of Ms. Thakkar and Ms. Nair support a finding of Class 3 impairment. Both Ms. Thakkar and Ms. Nair noted that the applicant required cueing and prompting during task completion; however, the applicant was ultimately able to complete several tasks without significant errors. Ms. Thakkar noted that there was difficulty with initiating tasks; however, once the applicant had set her mind to completing the tasks, she was about to persist through the tasks from start to finish.

33While I am alive to the fact that there were difficulties with task initiation, I find that this was partially due to the language barrier that exists. For example, the applicant was reluctant to approach a grocery store clerk to ask for an eggplant because she did not know the English word for the vegetable. The applicant further demonstrated function in this sphere during the grocery shopping task wherein she forgot the grocery list at home; however, she was able to recall the items on the list when she arrived at the grocery store. During another task, the applicant was also able to call a Polish grocery store and order a cake – a task which she had never completed pre-accident. I find that the applicant's performance on various tasks during the occupational therapy assessments shows that, while there were some limitations, the applicant still exhibited signs of sustained focused attention which permitted the timely completion of tasks.

34Finally, I find that the applicant's own testimony supports the position that her impairment level in this sphere is compatible with some, but not all useful functioning. With respect to her day-to-day life, the applicant testified that she participates in meal planning and money management and bookkeeping, albeit with assistance from her husband. While she no longer gardens or fishes, she has replaced these activities with cognitive activities such as puzzles, board games, sudokus, and reading the newspaper. The applicant testified that she enjoys doing these activities with her sisters and granddaughter for periods of 15 to 20 minutes at a time and while she sometimes loses patience and gets frustrated, she nonetheless comes back to the activity later, sometimes finishing them. In addition, the applicant testified that she reads the entire Polish newspaper when she has the time. Moreover, the applicant is independent in taking her medications and organizes her pills using a pill organizer. I find the foregoing to be indicative of a level of concentration, persistence, and pace that aligns with some useful functioning.

35I find that the applicant suffers from a Class 3 impairment in the domain of concentration, persistence, and pace, and therefore, when considered in conjunction with the other spheres of functioning, I find that she does not meet the definition for CAT under Criterion 8.

ORDER

36For the above reasons, I find that the applicant has not sustained a catastrophic impairment as defined by s.3.1(1)8 of the Schedule.