Licence Appeal Tribunal File Number: 22-012418/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:
Bijal Rajani
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Adrian Lomaga, Counsel
For the Respondent:
Nassim Rahimi, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Bijal Rajani, (“applicant”) was involved in an automobile accident on December 15, 2020, and sought benefits from TD General Insurance Company (“respondent”) pursuant to the Statutory Accident Benefits Schedule –Effective September 1, 2010 (“Schedule”). In January 2023, the applicant applied to the respondent for a determination that her accident-related impairments met the definition of catastrophic (“CAT”) impairment under the Schedule. The respondent conducted insurer examinations (“IEs”) and determined that the applicant’s accident-related impairments did not meet the definition of CAT. The respondent also denied the applicant’s entitlement to various medical benefits and cost of examination expenses on the basis that the non-CAT limits had been exhausted.
ISSUES
2The issues in dispute are:
Has the applicant sustained a catastrophic impairment as defined by the Schedule?
Is the applicant entitled to $5,907.68 for physiotherapy services, proposed by Taunton Garden Physiotherapy in a treatment plan (“OCF-18”) dated August 10, 2021?
Is the applicant entitled to $4,746.00 for a psychovocational assessment, proposed by Read Clinic in an OCF-18 dated April 5, 2022?
Is the applicant entitled $6,910.00 for physiotherapy services, proposed by Taunton Garden Physiotherapy in an OCF-18 dated December 4, 2021?
Is the applicant entitled to $4,077.00 for physiotherapy services, proposed by Rehab Centre in an OCF-18 dated January 19, 2022?
Is the applicant entitled to $3,888.53 for physiotherapy services, proposed by North Whitby Physio in an OCF-18 dated September 8, 2022?
Is the applicant entitled to $5,287.26 for occupational therapy services, proposed by Functionability in an OCF-18 dated August 9, 2022?
Is the applicant entitled to $5,287.26 for occupational therapy services, proposed by Functionability in an OCF-18 dated April 8, 2022?
Is the applicant entitled to $4,425.45 for occupational therapy services, proposed by Functionability in an OCF-18 dated January 25, 2022?
Is the applicant entitled to $2,930.09 for occupational therapy services, proposed by Functionability in an OCF-18 dated November 11, 2021?
Is the applicant entitled to $2,580.36 for occupational therapy services, proposed by Functionability in an OCF-18 dated July 29, 2021?
Is the applicant entitled to $1,502.37 for occupational therapy services, proposed by Functionability in an OCF-18 dated May 27, 2022?
Is the applicant entitled to $560.48 other goods of a medical nature PSW services), proposed by Neurorehabilitation Group in an OCF-18 dated February 23, 2022?
Is the applicant entitled to $1,378.76 for occupational therapy services, proposed by Functionability in an OCF-18 dated February 10, 2022?
Is the applicant entitled to $668.96 for other goods and services of a medical nature (PSW services), proposed by an unknown provider in an OCF-18 dated April 26, 2022?
Is the applicant entitled to $542.40 for transportation services, proposed by Circle Taxi Inc. in an OCF-6 dated October 20, 2021?
Is the applicant entitled to $867.84 for other goods of a medical nature (PSW services), proposed by an unknown provider in an OCF-18 dated March 23, 2022?
Is the applicant entitled to $759.36 for other goods of a medical nature (PSW services), proposed by an unknown provider in an OCF-18 dated September 2, 2022?
Is the applicant entitled to $989.92 for nursing services, proposed by Essentially You in an OCF-18 dated October 20, 2021?
Is the applicant entitled to $1,505.50 for nursing services, proposed by Essentially You in an OCF-18 dated December 10, 2021?
Is the applicant entitled to $1,450.00 for occupational therapy services, proposed by St. Elizabeth in an OCF-18 dated December 10, 2021?
Is the applicant entitled to $4,388.80 for driver’s treatment proposed by St. Elizabeth in an OCF-18 dated December 10, 2021?
Is the applicant entitled to $343.52 for other goods of a medical nature
PSW services), proposed by an unknown provider in an OCF-18 dated January 5, 2022?
Is the applicant entitled to $325.44 for other goods of a medical nature PSW services) by an unknown provider in an OCF-18 dated October 14, 2022?
Is the applicant to $759.36 for other goods of a medical nature PSW services), proposed by an unknown provider in an OCF-18 dated June 23, 2022?
Is the applicant entitled to $5,287.96 for occupational therapy services, proposed by Functionability in an OCF-18 dated February 16, 2023?
Is the applicant entitled to $7,302.50 for physiotherapy services proposed by North Whitby Physiotherapy in an OCF-18 dated May 31, 2023?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3After reviewing both parties’ submissions and all of the evidence I find:
i. The applicant did not sustain a CAT impairment pursuant to the Schedule.
ii. The applicant is not entitled to any of the benefits in dispute or interest because the non-CAT medical and rehabilitation benefits have been exhausted.
iii. The respondent is not liable to pay an award.
BACKGROUND
4On December 15, 2020, the applicant was a pedestrian who was hit by a vehicle which jumped a curb propelling her three meters into a mailbox. She was transported by ambulance to hospital where she was diagnosed with various soft tissue injuries and a fractured tibia and fibula of her right leg. She underwent surgery and was discharged from the hospital two days later. The applicant went on to develop chronic pain and a psychological impairment. She has been diagnosed with a mild traumatic brain injury, Somatic Symptom Disorder, Specific Phobia (Vehicular), and Persistent Depressive Disorder, Moderate, as a result of the accident. The $65,000 non-CAT medical and rehabilitation limits have been exhausted.
ANALYSIS
Has the applicant sustained a CAT impairment as defined by the Schedule?
5The applicant did not sustain a CAT impairment pursuant to s. 3.1 (“Criterion 8”) of the Schedule.
6To qualify as CAT under Criterion 8, an individual must sustain a Class 4 (“marked impairment”) as a result of the accident in three out of the four spheres of functioning or a class 5 impairment (extreme impairment) in one or more areas of function, outlined in Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”), due to a mental or behavioural disorder.
7The Guides set out that mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The below chart sets out the four spheres of functioning and the levels of impairment.
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 (Deterioration in a work-like setting)
8In support of her position that she meets CAT status under Criterion 8 the applicant relies on the s. 25 CAT assessment reports of Dr. Shahmalak, psychiatrist, and Fiana Kalp, occupational therapist (“OT Kalp”), undertaken in August and September 2022. Dr. Shahmalak opined that the applicant has marked impairments in Activities of Daily Living, Concentration, Persistence and Pace and Adaptation.
9The respondent relies on the CAT IEs of Dr. Aladetoyinbo, psychiatrist, and Curtis Wong, occupational therapist (“OT Wong”), dated January 25, 2024, who diagnosed the applicant with a moderate impairment in all four spheres of functioning.
10I find the CAT reports of both parties’ psychiatrists unhelpful as far as determining whether the applicant has a CAT impairment. For example, I find Dr. Shahmalak’s marked impairment ratings were inconsistent with the doctor’s description of the applicant’s function and at odds with the assessment of OT Kalp. However, I also find Dr. Aladetoyinbo’s report brief and lacking in detail and analysis when it came to applying the impairment ratings. For example, the doctor copied and pasted long excerpts from OT Wong’s report and rendered an opinion without any discussion.
11Another challenge with the evidence before me is that the respondent’s CAT assessment was completed one-year after the applicant’s assessments, so it is possible that the applicant made improvements by the time of the respondent’s CAT assessment. I will now address my findings regarding the applicant’s impairments under the disputed spheres of function based on the totality of the evidence.
ACTIVITIES OF DAILY LIVING
12I find that the applicant has a marked impairment in the sphere of activities of daily living as a result of her accident-related psychological impairment.
13The Guides specify that activities of daily living include: self-care, personal
hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitation in these activities should be related to the person’s mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual’s overall situation. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
Self-Care & Personal Hygiene
14Prior to the accident, the applicant was independent with self-care and personal hygiene. While the applicant struggled with self-care and hygiene tasks in the first year and a half post-accident because of her physical impairments, I find that she has consistently reported that she is now independent with these tasks. However, I note that the collateral interviews conducted by OT Kalp with the applicant’s husband and rehabilitation support worker (“RSW”) note that the applicant has good days and bad days and on bad days she requires regular prompting by her husband and children to get out of bed to start her day and carry out her self-care activities. The respondent has given me no reason to question the reliability of these collateral interviews and OT Wong did not conduct any in their assessment.
Communication
15Prior to the accident, the applicant did not have any issues with communication.
16Post-accident, the applicant reported struggling to express herself effectively. She has problems with word finding and following a conversation. Further, she becomes frustrated when interrupted because she will lose her train of thought. Overall, I find the evidence inconsistent regarding any changes to the applicant’s ability to communicate. For example, all of the CAT assessors note that the applicant was able to answer questions and was pleasant and cooperative with the assessors, her family, and the people she interacted with while out in the community.
17In discussing the applicant’s limitations with communication, Dr. Shahmalak states that the applicant does not use her phone or computer often due to light sensitivity. I find the doctor’s finding inconsistent with OT Kalp’s report which notes that the applicant has used her phone more in the past year to make notes and lists to assist her with appointments and memory. Further, she maintains contact with her parents in Kenya on a daily basis and calls them every day.
Ambulation & Travel
18Prior to the accident, the applicant did not have any limitations with mobility or travel. She accessed the community by driving and would go for an hour and a half walk each day. She would make two trips per year back to Kenya to visit her elderly parents.
19Post-accident, the applicant has experienced driving, passenger and pedestrian anxiety which have limited her ability to independently access the community. To date, she has resumed driving, however, she avoids driving on highways and busy streets and still has anxiety as a passenger. Further, she has reduced mobility when walking outside because of her right leg fracture and she now walks with a cane because she is afraid of falling. In addition, the applicant has consistently reported being fearful of walking outside on her own and prefers to be accompanied by someone due to her anxiety. I find that the applicant has consistently reported these limitations to assessors throughout the claim. As of the date of this hearing, the applicant has not returned to Kenya.
Sexual Function
20Prior to the accident, the applicant did not report any issues with her libido. Post-accident, she reports having no sexual desire because of psycho-emotional and physical challenges.
Sleep
21Prior to the accident, the applicant reported to assessors that she would get approximately 8 hours of sleep per night and would wake up feeling rested. Following the accident, her sleep is broken due to pain and nightmares. She now obtains 4 to 5 hours of non-restorative sleep per night and wakes up feeling fatigued.
Social & Recreational Activities
22Prior to the accident the applicant had a best friend who she would socialize with regularly and had a group of close friends. She enjoyed reading, going to temple, entertaining, gardening and socializing with friends.
23Post-accident she still maintains contact with friends, however, she avoids social functions because of ongoing fatigue and anxiety about talking about her problems. Now the applicant carries out more sedentary activities such as reading, watching tv and has modified her gardening activities. The applicant reported that, post-accident, she has maintained a good relationship with her husband and children. However, I note that in OT Karp’s collateral interview with the applicant’s husband, he describes the family relationship as being strained. He stated that he and the applicant’s children walk around on eggshells from fear of upsetting her. Further, the applicant’s husband reported that they no longer go camping because she cannot sit in the car for long periods and can no longer hike.
Household Tasks
24Prior to the accident, the applicant was independent with household tasks and was primarily responsible for all indoor housekeeping, grocery shopping and laundry. She also did the bulk of the cooking and would make complex cultural dishes from scratch.
25Post accident, the applicant struggles to complete tasks in a timely and efficient manner. Now she can cook light meals but not the complex cultural dishes that she did pre-accident. In consultation with her daughter, she now plans, coordinates and delegates meal preparation to her family members. The applicant is no longer able to carry out most of her housekeeping and home maintenance tasks, however she is able to do some light housekeeping chores.
Managing Finances
26Prior to the accident, the applicant was responsible for completing the household banking and finances.
27Post-accident, she still completes finances independently. However, the collateral interview with the applicant’s husband establishes that he has to double check everything because she makes mistakes and has missed bill payments.
28When I compare the overall degree of functional limitations the applicant has in carrying out her activities of daily living, I find that her impairment levels significantly impede useful functioning. Although the applicant can still carry out some of her activities of daily living, I find that there has been a significant reduction in almost all domains of function because of her somatic symptom disorder. For example, she has no sexual libido, feels anxious to walk past the end of her driveway by herself, has become socially isolated and is only able to carry out a fraction of the household activities she was able to do pre-accident. Her social and recreational activities have also been significantly curtailed. I find the number of restrictions in the applicant’s activities of daily living more compatible with a marked impairment. Further, I find OT Kalp’s description of the applicant’s function consistent with the psychovocational report of Dr. Scherer which was completed around the same time period.
CONCENTRATION, PERSISTENCE AND PACE
29I find that the applicant has a moderate impairment in the sphere of Concentration, Persistence and Pace as a result of her accident-related psychological impairment.
30The Guides define this sphere as having the ability to sustain focused attention long enough for the timely completion of tasks commonly found in work settings. Deficiencies in concentration, persistence and pace are best noted from previous work attempts or from observations in work-like settings. The Guides specify that psychological tests are useful in assessing intelligence, memory, and concentration. Frequency of errors, the time it takes to complete a task and the extent of which assistance is required to complete a task are factors to consider in assessing this sphere.
31From 2012 until December 15, 2020, the applicant worked as a senior tax professional for H&R Block. She worked 40-60 hours a week from January to April, then part-time hours in the off-season. Following the accident, she attempted to return to work on modified duties, working up to 10-12 hours a week from January to April in both 2022 and 2023. She was given administrative office manager duties to complete from home and had flexibility over her hours of work and schedule. The applicant experienced significant pain and fatigue while working, which impacted her ability to carry out her other activities. The applicant relies on a note from her family doctor from January 2024, who recommended that she discontinue work. The respondent submits that the note of the applicant’s family doctor is not helpful because no information is provided by the doctor in the note to explain why the applicant cannot work or that it is because of the accident. Of relevance, the note from the applicant’s family doctor post-dates both parties’ CAT assessments and the applicant had returned to work at the time of these assessments.
32The applicant submitted an updated letter from her family doctor for the first time in reply submissions to address the respondent’s argument, which supports that she cannot work because of her accident-related impairments. Further, long after the deadline had passed for the written hearing, she submitted confirmation that she has recently been approved for Canada Pension Plan benefits. I have given this evidence little weight because the applicant failed to articulate the relevance of the approval of CPP benefits and because of the late service on the respondent and its inability to respond. I also note that the evidence significantly post-dates both parties’ CAT assessments and is not relevant to the time period being assessed. However, I do note that the income tax returns from 2021 to 2024 demonstrate that the applicant received minimal income between 2021 to 2023 and no income in 2024.
33I find the applicant’s performance during both parties’ OT CAT assessments inconsistent. The following are some examples:
a) In OT Karp’s assessment she displayed decreased planning and organization skills when managing a simple calendar task because she did not indicate times or descriptions of the tasks in her answers, and she missed a task. By contrast, she completed the calendar task in OT Wong’s assessment in half the time allotted with one error. I also find the applicant’s performance during OT Karp’s assessment inconsistent with the fact that she was working part-time as an office manager and was responsible for coordinating staff schedules.
b) In OT Karp’s assessment she made several errors in the grocery outing task, yet she could plan three meals per day for three days and compile a grocery list for OT Wong’s assessment in 10 minutes.
c) In OT Karp’s assessment she could not complete her passport or health card renewal forms, yet in OT Wong’s assessment she was able to complete 43/45 questions correctly in an invoice task and did well on a multi-tasking test which required her to compare and contrast various data.
34Although I acknowledge that the assessments of OT Karp and OT Wong were completed one year apart, I find it difficult to reconcile the above inconsistencies because no clinical notes and records from the applicant’s treating practitioners were submitted to support the applicant’s functional limitations. Both parties relied on my decision in Russell v Dumfries Mutual Insurance Company, 2023 CanLII 1439 (“Russel”) in support of their position that the Tribunal has preferred one parties CAT assessments over another where it was more consistent with the totality of the medical evidence. I find Russell distinguishable from this case because in that case I had a high volume of medical records before me which assisted in determining which expert’s opinion was more consistent with the medical record. Further, I find Russell does not assist the applicant’s position because in that decision I preferred the applicant’s assessments over the respondents’ CAT assessors because I found them to be wholly inconsistent.
35In this case, I find Dr. Shahmalak’s discussion of the spheres of function wholly inconsistent. For example, the doctor indicates that the applicant’s poor emotional regulation would likely result in workplace conflict (with coworkers and customers), amotivation and/or avoidance or withdrawal. The doctor did not indicate where this information was coming from when the applicant interacted pleasantly and appropriately with the CAT assessors and people in the community. The doctor also states that her subjective reports of cognitive difficulties (impaired memory, concentration, and attention) would likely lead to poor decision-making, increased errors, and decreased task efficiency. However, the doctor acknowledged that no cognitive testing was done for this assessment.
36I also find Dr. Shahmalak’s comments in analyzing the sphere of adaptation added to the confusion because the doctor states that the applicant “was able to respond to questioning within normal time-frames. She demonstrated the capacity to maintain work-appropriate engagement and emotional demeanor during the CAT impairment evaluations, and there was no evidence of impairment in social functioning that would interfere with her capacity to maintain work-like relationships with peers and supervisors.” Dr. Shahmalak then states that the applicant did not require a break. Her recollection of dates and details and memory were good. She exhibited intact concentration. She was able to alternate her concentration when required. She responded appropriately to questions and commands, indicating she is able to process, comprehend, interpret, and respond to information within the context of the assessment. The doctor then rendered the opinion that the applicant has a marked impairment in this sphere.
37I find Dr. Shahmalak failed to discuss the fact that the applicant had returned to work on modified hours and duties and did not discuss the functional limitations outlined in OT Kalp’s report at all. Further, no psychological testing was conducted to assist the doctor in coming up with an impairment rating. Moreover, the applicant scored in the average (and above average in a few) range on the majority of the tests administered by Dr. Scherer in the psychovocational assessment (who was assessing the applicant’s inability to work), which was completed around the same time, with the exception that she had weakness in short-term auditory contextual memory recall. For these reasons, I give Dr. Shahmalak’s opinion little weight.
38By contrast, Dr. Aladetoyinbo completed a Mini Mental Status Examination in which the applicant’s score was 28/30, which is above the cut off (24/30) to support cognitive decline. Further, while I agree that Dr. Aladetoyinbo’s assessment was brief and lacking in detail and analysis, I agree with the doctor that Dr. Shahmalak’s analysis under the spheres of function do not align with the doctor’s impairment ratings.
39Finally, OT Wong’s report notes that the applicant asked and answered questions appropriately and in a timely manner. She was a good historian as she was able to recall past dates and events. She was able to follow simple and multi-step instructions. She provided clear and detailed responses to questions. She appeared to grasp instructions quickly. She completed two pen and paper tasks at a good pace and without any breaks, with few errors. Other than not being able to finish the community outing task to the grocery store, which will be discussed further below, I find OT Wong’s assessment supports that the applicant has a moderate impairment in the sphere of Concentration, Persistence and Pace. Since I have determined that the applicant has a moderate impairment in this sphere, she does not meet CAT status because neither parties’ assessor determined that she has a marked impairment in Social Functioning. However, for added clarity, I will address my finding regarding the sphere of adaptation.
Adaptation
40I find the applicant has a moderate impairment in the sphere of Adaptation.
41The Guides define impairment in adaptation as the repeated failure to adapt to stressful circumstances, in the face of which “the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate or having difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.” An impairment in adaptation affects the ability to function across all activity areas. Regarding activities of daily living, their quality is judged by their independence, appropriateness, effectiveness, and sustainability.
42As already highlighted above, I find the applicant has a marked impairment in activities of daily living because of her somatic symptom disorder in that she struggles to carry out her activities of daily living when compared to her pre-accident function. However, while both parties’ assessor’s note that she is socially withdrawn, neither concluded that she has a marked impairment in social functioning. Although I find that the applicant’s performance during both parties’ CAT OT assessments showed evidence of a failure to adapt when faced with stressful situations, I find that these two examples are insufficient medical evidence for me to conclude that she has a “repeated failure to adapt to stressful situations” compatible with a marked impairment, as required by the Guides.
43As highlighted above, the applicant’s performance during both parties’ OT assessments was inconsistent. During OT Kalp’s assessment she emotionally decompensated as the assessment progressed to the point where she could not fill out passport and health renewal forms. I find the applicant’s performance during this task inconsistent with her performance during OT Wong’s assessment, her ability to carry out the tests administered by Dr. Scherer and her part-time work as an office manager.
44Although the collateral interviews with the RSW and the applicant’s husband support that they have witnessed the applicant become irritable or that she is unable to deal with stressful situations, this is not medical evidence of a failure to adapt because of a mental or behavioural impairment documented by a medical professional. Further, I give Dr. Shahmalak’s opinion little weight because, as noted above, his report was inconsistent.
45Much was made by the applicant about her performance during OT Wong’s assessment where she drove to a grocery store to complete the community assessment and while stopped at a four-way stop, another vehicle drove through out of turn. The applicant proceeded to drive to the grocery store where she broke down crying and she could not continue with completing the grocery store task. She was so upset that she had to call her son to come pick her up to drive her home. The respondent submits that this was an isolated incident and the applicant’s reaction is common and that most people would be upset if this happened to them. While I agree with the applicant that this is an example of her emotionally decompensating after being faced with a stressful situation, I find this one example is not evidence of a “repeated failure” to adapt to stressful situations as highlighted by the Guides.
46For the above-noted reasons, I find the applicant has a moderate impairment in adaptation.
47Although I acknowledge that the applicant sustained very serious injuries as a result of the accident that have had a profound impact on her life, I find the medical evidence relied upon does not support that she meets CAT status under Criterion 8, as I have only determined that she has one marked impairment. As a result, she is not entitled to the remaining benefits in dispute because the non-CAT limits have been exhausted.
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because I have not determined that any benefits are overdue.
Award
49The 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. In light of my decision in this matter I find the respondent is not liable to pay an award because I do not find that the respondent unreasonably withheld or delayed the payment of benefits. Nor do I find that the applicant met her onus in proving that an award is payable because her submissions failed to address the issue.
ORDER
50For the above-noted reasons, I order as follows:
i. The applicant did not sustain a CAT impairment pursuant to the Schedule.
ii. The applicant not entitled to any of the benefits in dispute or interest because the non-CAT medical and rehabilitation benefits have been exhausted.
iii. The respondent is not liable to pay an award.
Released: June 4, 2025
Rebecca Hines
Adjudicator