Licence Appeal Tribunal File Number: 24-001440/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:
Abigail Cattermole
Applicant
and
Royal & Sun Alliance Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Timothy Porter
APPEARANCES:
For the Applicant:
Matthew Lefave, Counsel
For the Respondent:
Tessie Kalogeras, Counsel
Court Reporter:
Siriana Taylor
Heard by Videoconference:
January 20-25, 2025
OVERVIEW
1Abigail Cattermole, the applicant, was involved in an automobile accident on December 20, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Royal & Sun Alliance Insurance Company of Canada, the respondent, 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 Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
3The applicant withdrew the following issues: 2, 3, 4, 5 and 7 as listed in the case conference report and order.
RESULT
4The applicant, on a balance of probabilities, has shown she sustained a catastrophic impairment as a result of the subject accident.
5The respondent is not liable to pay an award under s. 10 Reg. 664.
PROCEDURAL ISSUES
Motion to call the handling adjuster
6On January 16, 2025, four days prior to the hearing, applicant’s counsel submitted a motion to grant leave to call Ms. Nina Barbieri, accident benefits adjuster, as an adverse witness. Applicant’s counsel submits that this witness is required to properly outline the applicant’s claim for a s. 10 award. Respondent’s counsel submits that this is a late called witness, not properly identified as per the Licence Appeal Tribunal Rule, 2023 (“Rules”) 9.4.3(a) and case conference report and order of June 17, 2024, which details that a witness must be identified 21 days prior to the hearing. This motion was denied as the witness was not identified in the case conference report and order, nor the final witness list submitted December 16, 2024. The beginning of a hearing is no time to seek a variance to the timeline for calling witnesses, especially a witness not previously identified.
Motion to exclude applicant’s addendum report by Dr. Gnam
7The respondent submitted a motion to exclude the addendum report of Dr. William Gnam, psychiatrist, dated December 20, 2024, and served on the respondent December 23, 2024. The addendum relates to a critique of the respondent’s catastrophic impairment psychiatric report of Dr. Joel Eisen, psychiatrist, as well as a review of records from Waypoint Centre for Mental Health where the applicant was an inpatient. The report was late filed according to the timelines established in the case conference report and order.
8Applicant’s counsel submits that the respondent had the original Dr. Gnam report well within the timelines established in the case conference report and order, that the contents of the addendum report are relevant to the issues in dispute, that the review of the Waypoint records, to place them in context with the previously existing catastrophic impairment reports, is highly relevant to the issues in dispute and that the contents of the addendum report is highly probative.
9Respondent’s counsel submits that admission of the report will prejudice the respondent, that the addendum is late and delivered outside the timelines agreed and detailed in the case conference report and order.
10Rule 9.3 set out the factors to consider when making a determination as to whether the documents in question may be entered into the hearing including the reasons for non-compliance, the potential for prejudice, the degree to which the information contained in the evidence is within the knowledge of the other party, the position of the responding party and the relevance of the evidence to the dispute. The reason for non-compliance relates to the general flow of information between the parties and was delivered outside of the timelines contained within the CCRO, but before the 21-day mark prior to the hearing. The content of the addendum report is with regard to information largely within the knowledge of the respondent. There is some prejudice to the respondent if the report is allowed in, and should the report not be entered into evidence a greater degree of prejudice to the applicant. The respondent opposes entry of the report into evidence. I find that the substance of the addendum report is relevant to the issues in dispute and, as per Rule 9.3, I provided permission for the applicant to rely on this document at the hearing. To mitigate any prejudice to the respondent, I have applied a slightly diminished weight to the addendum report and have considered it in only one circumstance during my analysis.
ANALYSIS
The applicant meets the catastrophic impairment legal test
9For 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 direct result of the December 20, 2019, subject accident.
10Catastrophic 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 (“ADLs”) | 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) |
11The applicant has the burden of proving on a balance of probabilities that she is catastrophically impaired, under criterion 8, as a result of the accident. Given that the accident occurred on December 20, 2019, 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.
12The applicant submits that she has suffered marked impairments in all four areas of functioning as a direct result of the accident. The applicant relies on the clinical notes and records (“CNRs”) of Dr. Melanie Hall, family physician and the Dufferin Area Family Health Team; the testimony of and reports by Dr. Gnam; the testimony of and reports by the respondent’s occupational therapist (OT) catastrophic impairment assessor Ms. Leslie Hisey; and the catastrophic impairment determination social work collateral interviews report of Ms. Revital Shuster, RSW.
13The respondent submits that the applicant has been impacted by the subject accident, but that the functional impairments are moderate, and they may have been caused by subsequent psychosocial stressors. They rely on the testimony of and reports by Dr. Eisen; and the testimony of and reports by Ms. Hisey.
14The applicant underwent a catastrophic impairment determination multidisciplinary assessment by Dr. Gnam. The assessment was conducted on June 1, 2023. Dr. Gnam also relied on and referred to functional data and observations provided in the s. 44 March 20, 2023, occupational therapy assessment reports of Ms. Hisey and the catastrophic impairment determination social work collateral interviews report of Ms. Shuster, who conducted her interviews over a number of days in late June 2023. The conclusion by Dr. Gnam provided the following ratings of the applicant in the four spheres of functioning:
| 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 |
I provide a very high weight to the report and testimony of Dr. Gnam because of his demonstrated, detailed knowledge of the Guides, and the detail in which he explores and explains the applicant’s functional deficits. I find probative the inclusion of psychometric testing, as well as a series of collateral interviews held by a registered social worker with more than nine individuals who have direct ongoing contact with the applicant. Dr. Gnam’s diagnosis of the applicant includes Major Depressive Disorder, single episode, chronic severe; posttraumatic stress disorder; specific phobia, situational; panic disorder; pain disorder associated with both psychological factors and a general medical condition; as well as cannabis abuse disorder.
15The applicant also underwent a catastrophic impairment determination multi-disciplinary assessment by Dr. Eisen, and a report was issued February 27, 2024; and functional data and observations were provided in the occupational therapy assessment reports of Ms. Hisey. The conclusion by Dr. Eisen provided the following ratings of the applicant in the four spheres of functioning:
| 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 | Moderate Impairment | ||||
| Concentration, Persistence and Pace | Moderate Impairment | ||||
| Adaption (In a work-like setting) | Moderate Impairment |
I provide a diminished weight to the report of Dr. Eisen because he points to a case vignette contained within Chapter 14 of the Guides to both criticize Dr. Gnam’s ratings and as support for his ratings; concluding that an applicant with four marked impairments would require 24/7 residential supervised care to support such low function. The case vignette in the Guides is not helpful in applying the guides to the Schedule because it causes analysis to be skewed in its comparison to a fictional functional impairment which is not related to a functional impairment caused by an automobile accident. In addition, the opinion that an individual with four marked impairments would require 24/7 residential care places a new, artificial barrier to being designated catastrophically impaired that does not appear in the Schedule. In addition, the use of the Guides in the context of the Schedule does not support apportionment for pre-accident function. Dr. Eisen’s critique of Dr. Gnam’s report includes admonishment for not using apportionment for pre-accident functional deficits, while not identifying how apportionment affected his rating. During his testimony, Dr. Eisen denied any use of apportionment which causes me to question his findings, since he clearly identifies the lack of apportionment as a criticism of Dr. Gnam. I considered Dr. Gnam’s addendum report, with a slightly diminished weight due to its late production, during the analysis of apportionment.
The applicant has a marked impairment of her ADLs as a result of the accident
11According to the Guides, activities of daily living include 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.
12For the reasons that follow, I find that, on a balance of probabilities, the applicant has shown she suffers from a Class 4 Marked Impairment of her ADL function.
13I am satisfied that the medical evidence shows the applicant’s mental impairments have resulted in several functional restrictions and limitations that adversely impact most aspects of ADLs, and significantly impede useful function. Dr. Gnam diagnoses the applicant with Major Depressive Disorder, posttraumatic stress disorder, specific phobia, situational, panic disorder, pain disorder and cannabis abuse disorder. Dr. Gnam opines that these mental disorders result in motivation impairment, fatigue, pain intrusiveness and anxiety symptoms. Dr. Gnam’s report and testimony establish that the applicant’s mental disorders were as a result of the subject accident; and that the disorders were imposing barriers to the applicant independently and sustainably completing ADLs on a consistent basis.
14Motivation impairment significantly impedes useful function for personal hygiene and grooming, as well as a range of housekeeping tasks. Prior to the subject accident, the applicant reported to Ms. Hisey that she did her grooming independently, regularly, and quite meticulously; following the accident the applicant is functionally able to complete the grooming tasks but is no longer motivated to regularly complete most grooming tasks. With regard to housekeeping tasks, the applicant described to Dr. Gnam that, prior to the accident, she independently and sustainably cleaned her bedroom and bathroom, completed laundry, and made meals for herself. Following the accident, the applicant engages in minimal housekeeping, which often requires cuing, and she does not prepare meals for herself.
15I am not persuaded by Dr. Eisen, because he opines that the applicant’s reports of accident-related impairment in many of the ADL areas are similar to or less impaired than prior to the accident. This is not supported by pre-accident medical care records, the applicant’s, and the applicant’s father’s testimony. Contained within pre-accident medical care records are reports of some symptoms which could be construed as similar, however, these occur at a time when the applicant was functioning at a high level, successfully performing at high school and at two concurrent part-time jobs.
The applicant has a marked impairment of her social function
16The Guides specify an individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to have a good relationship with others such as family members, friends, neighbours, grocery clerks, lenders, etc. 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 and interact and actively participate in group activities, consideration for others, awareness of others’ sensitivities and social maturity.
17For the reasons that follow, I find that, on a balance of probabilities, the applicant has shown she suffers from a Class 4 Marked Impairment of her social function.
18I agree with Dr. Gnam’s assessment that the applicant’s social function impairments are greater than moderate and attain the level whereby they significantly impede useful functioning. Dr. Gnam notes that the applicant’s interaction with himself, as well as Ms. Hisey, were characterized by considerable impairment in affect regulation, with frequent crying and observed drowsiness. The applicant reported that she had withdrawn from most social interactions with family and friends, which Dr. Gnam opined is indicative of a considerable loss of the capacity to maintain close, confiding relationships. The substantial withdrawal reported by the applicant was corroborated by collateral interviews with the applicant’s mother, father, and sister. Dr. Gnam opines that the social withdrawal is primarily due to mental disorders and arises from motivation impairment, social indifference, and a perception that no one understands her experience.
19The applicant has regularly reported that, following the accident, she was not able to meaningfully return to high school. In addition, prior to the accident, the applicant’s social circle included six friends, her best friend, and a boyfriend; these friends would get together multiple times per week to socialize. Following the accident, the applicant was ostracized from the friend group, and only the relationship with the boyfriend was maintained—until she ended the relationship. The applicant also testified that she has no social life, no friends, and no boyfriend, that she feels emotionally detached from people and is not motivated to make friends. This information, combined with the noted social isolation contained in collateral interviews conducted by Ms. Shuster, lead me to agree with the assessment by Dr. Gnam.
20I am not persuaded by Dr. Eisen’s report and testimony within the domain of social function, because he lists facts and his conclusion without sufficient analysis of the independence, appropriateness, effectiveness, or sustainability of the activities. Dr. Eisen points to the applicant becoming friends with a roommate in college, collaborating with classmates on class projects and maintaining a boyfriend for 2 years post-accident as evidence of useful function. However, the applicant’s testimony and reports to assessors outline that the friendship with the college roommate had concluded, the applicant is no longer in school, and the relationship with the boyfriend was terminated by the applicant because she felt she was a burden within the relationship. The combination of a lack of analysis and the cursory points which are not consistent with submitted evidence and testimony suggests to me that the opinion by Dr. Eisen is not corroborated.
The applicant has a marked impairment of her CPP function
29Concentration, 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.
21For the reasons that follow, I find that, on a balance of probabilities, the applicant has shown she suffers from a Class 4 Marked Impairment of her CPP function.
22The applicant loses track of conversations, demonstrating attentional and working memory lapses. For instance, during her testimony, the applicant lost track of the questions during the in-chief examination a minimum of 10 times. Dr. Gnam also notes subjectively in his report that the applicant had difficulty with attention, working, visual and prospective memory; and, during Ms. Hisey’s assessment, the applicant described cognitive issues related to financial management, and a reduced courseload with accommodations at school. All of this evidence taken together lead me to find the applicant does not have 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.
23I agree with Dr. Gnam’s assessment that the applicant’s cognitive impairments when conducting most work-like tasks, or even routine daily living tasks, were further exacerbated by the severity of fatigue and motivation impairment. Dr. Gnam also points to the contents of collateral interviews conducted by Ms. Shuster. Ms. Shuster spoke with the applicant’s mother who reported that the applicant has “completely changed”. It is hard for her to concentrate, and, in contrast, prior to the accident she was happy, nice, attentive, very studious, and diligent in doing all of her work. Ms. Shuster also spoke with the applicant’s older sister who reported that the applicant’s ability to focus, empathize and her patience have all dramatically worsened since the accident. Ms. Hisey assessed the applicant on February 7, 2023, and reported that, from a functional cognitive perspective, there does appear to be difficulties/issues identified in terms of orientation, delayed memory, ability to attend, maintain concentration, and process information. Going further, Ms. Hisey observed that the applicant presents with increased difficulty related to components of memory, attention/concentration which may become heightened as her level of fatigue increases.
24I am not persuaded by Dr. Eisen’s findings, because he does not incorporate the findings of the concurrent assessor, Ms. Hisey, in this section of his assessment. As noted above Ms. Hisey observed that the applicant presents with increased difficulty related to components of memory which bears no mention in the analysis by Dr. Eisen. In addition, Dr. Eisen seems to discount information contrary to his opinion, while highlighting relatively inconsequential information in support of his opinion. For example, he highlights that the applicant could name medications and dosages she was currently taking, as well as name the healthcare providers that she was receiving care from. In contrast, Dr. Eisen does not seem to acknowledge that the applicant had lost conciseness or was diagnosed with a concussion following the accident and does not seem to incorporate elements of the file review into his analysis. For example, the Social Work Consulting note of May 20, 2022, which details memory issues and outright confusion. Together, these observations led me to conclude that Dr. Eisen was dismissing the applicant’s complaints and evidence on an opinion basis, rather than utilizing the specific approach outlined in the Guides and demonstrating this through the analysis.
The applicant has a marked impairment of her adaptation function
25Deterioration 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 signs and symptoms. He or she may decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stressors common to the environment include attendance, making decisions, scheduling, completing tasks and interacting with others.
26For the reasons that follow, I find that, on a balance of probabilities, the applicant has shown she suffers from a Class 4 Marked Impairment of her adaptation function.
27I agree with Dr. Gnam’s assessment that the applicant has a Marked Impairment of her adaptation sphere, because he draws on his own observations, an extensive file review, the report of Ms. Hisey, and the collateral interviews of Ms. Shuster to draw a fulsome picture of an applicant who is markedly impaired in her adaptation function. Dr. Gnam also does not shy away from facts that are inconsistent with his opinion, and he reviews those instances to provide context to his analysis of countervailing facts. Dr. Gnam points to the applicant’s performance during Ms. Hisey’s in-home occupational therapy assessment, wherein the applicant demonstrated significant attentional, working memory, and executive functioning impairments denoted by the repetition of instructions for simpler tasks, as well as her lack of meaningful engagement in the weekly calendar planning activity and multi-step task tests. Dr. Gnam highlights that the applicant is not independent in the completion of complex tasks assigned by the OT during in-home testing, even with special support and assistance, such as cueing and encouragement from the OT. Dr. Gnam also draws on his observation that the applicant’s mental status and performance deteriorated during his psychiatric assessment, and he opines that “deterioration in the applicant’s mental state can be provoked by objectively minor stresses over a short period of time.”
28Members of the applicant’s immediate family consistently report conflict with the applicant over minor interpersonal stresses. The applicant’s grandmother, mother, father, and sister report a change in the applicant such that they now must ‘walk on eggshells’ around her due to volatile outbursts against minor interpersonal stresses. Dr. Gnam opines that these outbursts are demonstrative of a decreased ability to interact with others and evidence of the applicant’s Marked Impairment in adaptation.
29I am not persuaded by Dr. Eisen’s assessment report with regard to his assessment of the applicant’s adaptation functional sphere. Dr. Eisen highlights information which supports his opinion, that the applicant performed well, with accommodations, in her second year of university, detailing the functional requirements to obtain grades in an academic setting. In contrast, Dr. Eisen is abrupt with information that is counter to his opinion, stating simply with regard to university performance, “her performance this year is less successful”, which leaves me concluding that Dr. Eisen did not properly account for all of the facts before him. Dr. Eisen also makes inconclusive statements which suggest a dismissiveness to his assessment of the applicant’s self-reports; in particular his statement: “It is noteworthy that there are numerous psychosocial stressors that are unrelated to the subject accident that have likely impacted Ms. Cattermole’s functioning in this domain.” The use of the word “likely” in this context, without further analysis, concerns me for the casual suggestion of alternate causes of the applicant’s presentation without conducting the analysis or outlining why the psychosocial stressors are, in fact, the cause of the applicant’s presentation, as opposed to the subject accident.
30It is an agreed fact that the applicant is not working and has not meaningfully worked since the accident. Prior to the accident, the applicant was working two part-time jobs while attending high school; the applicant testified that she was successful and competent at the part-time roles, emphasizing her memory and prioritization in a demanding environment as skills that supported her efforts. There was a brief attempt to return to work, with modifications, in October 2022, which was not successful, and the family physician instructed the applicant to stop attempting to return to work as her symptoms were worsening. The applicant felt unable to perform at work due to short term memory issues and issues with the environment and stress. On a balance of probabilities, when this attempted return is contrasted with the applicant’s strengths identified prior to the accident, I find it is a demonstration that the applicant was failing to adapt in stressful circumstances.
31Dr. Kate Peplinskie, C. Psych. assessed the applicant on August 19, 2024, and opined that the applicant suffers a complete inability to engage in employment due to poor motivation, fatigue, cognitive deficits, panic attacks and severe difficulty managing chronic pain. While the ability to work is not the test for adaptation, this report and the follow-up actions of the respondent are taken as further evidence that the applicant is fragile within this domain.
32For the reasons above, I find that the applicant has met the legal test and has been determined to have suffered a catastrophic impairment as a direct result of the December 20, 2019, subject accident.
Award
32The 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.
33The applicant submits that the respondent was stubborn and unreasonable in their adjusting of her claim. The applicant points to the log notes of March 2022 when, in consideration of the denial of the IRB, an adjuster noted the previous denial of the IRB as “weak”; that subsequently the IRB was paid retro-actively but still not approved. And finally, that when the applicant was hospitalized, they did nothing in support of the applicant and instead hired surveillance.
34The respondent submits that they have continually adjusted the claim, approving benefits as supportive medical records are submitted. In addition, the respondent submits that they relied in good faith on the multiple insurer’s examinations of the applicant that reported only soft-tissue injuries.
35In examining whether an insurer’s conduct in withholding or denying a benefit warrants an award, the case law is well established that, the insurer’s behaviour must be seen as “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.” It is also well-settled that an insurer is not held to a standard of perfection in adjusting decisions and that a s. 10 award is meant to act as a deterrent against bad faith conduct by an insurer and not as punishment for arriving at an incorrect conclusion.
36While I have found that the respondent’s position on catastrophic impairment was incorrect, I find that the respondent did not act unreasonably, excessively, imprudently nor in an inflexible manner. The applicant has not submitted evidence sufficient to meet her onus in demonstrating that the respondent acted unreasonably.
ORDER
37For the above reasons, I find:
i. The applicant, on a balance of probabilities, has sustained a catastrophic impairment as a result of the subject accident.
ii. The respondent is not liable to pay an award under s. 10 Reg. 664.
Released: April 28, 2025
Timothy Porter
Adjudicator