Licence Appeal Tribunal File Number: 22-008096/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:
Bryanna Fleming-Dorie
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Teresa Walsh
APPEARANCES:
For the Applicant:
Liane J. Brown, Counsel
For the Respondent:
Jonathan B. Schrieder, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Bryanna Fleming-Dorie, the applicant, was injured in an automobile accident on January 8, 2017, and sought benefits from the respondent, Certas Home and Auto Insurance Company, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The respondent denied the applicant’s entitlement to an income replacement benefit (“IRB”), a medical benefit and the cost of assessment expenses. The respondent also denied that the applicant’s accident-related injuries met the definition of a catastrophic (“CAT”) impairment.
3The applicant disagreed with the respondent’s decision and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
4A videoconference hearing of this matter was originally scheduled for October 3 to 12, 2023. On September 28, 2023, the applicant filed a motion seeking an adjournment, submitting that she was experiencing significant health issues due to stress associated with the hearing. On September 29, 2023, the Tribunal granted the applicant’s motion on consent, adjourning the videoconference hearing to take place between February 5 and 13, 2024.
5On November 28, 2023, the applicant filed a motion requesting that the Tribunal convert the videoconference hearing to a written hearing. The applicant submitted that a written hearing was required as her health had not improved and a videoconference hearing continued to pose a risk to her health and well-being. The respondent objected to the motion, submitting that it would be procedurally unfair to prevent it from testing the applicant’s credibility by way of cross-examination as the applicant claimed to have sustained a CAT impairment on psychological rather than physical criteria. The respondent further submitted that the applicant’s alleged health issues did not excuse her from cross-examination.
6In its order dated December 22, 2023, the Tribunal granted the applicant’s motion for a written hearing.
ISSUES
7The issues in dispute are:
i. Has the applicant sustained a CAT impairment as defined by the Schedule?
ii. Is the applicant entitled to an IRB in the amount of $194.73 per week from February 24, 2023 to present and ongoing?
iii. Is the applicant entitled to $3,595.11 ($3,970.00 less $374.89 approved) for social rehabilitation counselling, proposed by Ingrid Kuran in a treatment plan/OCF-18 (“plan”) submitted October 28, 2020 and denied November 24, 2020?
iv. Is the applicant entitled to $2,260.00 ($14,012.00 less $11,752.00 approved) for CAT impairment assessment expenses, proposed by Dr. Lisa Becker in a plan submitted July 15, 2020 and denied July 22, 2020?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
8After considering the parties’ written submissions and evidence, I find:
i. The applicant has sustained a CAT impairment as defined by the Schedule;
ii. The applicant is entitled to an IRB in the amount of $194.73 per week from February 24, 2023 to present and ongoing;
iii. The applicant is not entitled to $3,595.11 for a social rehabilitation counselling benefit;
iv. The applicant is not entitled to $2,260.00 for CAT impairment assessment expenses; and
v. The applicant is entitled to interest in accordance with section 51 of the Schedule on the overdue payment of an IRB.
ANALYSIS
9I will start by discussing the applicant’s claim that she meets the definition of a CAT impairment. Specifically, the applicant seeks a determination of CAT impairment under section 3.1(1)8 of the Schedule (Criterion 8) based on a mental or behavioural impairment.
10I will then discuss whether the applicant is entitled to a post-104-week IRB, whether the medical and rehabilitation benefits claimed are reasonable and necessary, and if any interest is payable.
CAT impairment definition
11A CAT impairment is a legal definition and not a medical test, although the legal test involves consideration of medical evidence. The criteria to establish a CAT impairment are found under section 3.1(1) of the Schedule. The applicant has the onus of proving on a balance of probabilities that she has suffered a CAT impairment as a result of the accident.
The applicant has sustained a CAT impairment under Criterion 8
12I find that the applicant has satisfied her onus in demonstrating a CAT impairment under Criterion 8 because she has sustained marked impairments in three areas/spheres of functioning as a result of the accident: activities of daily living; concentration, persistence and pace; and adaptation.
13In order to meet the threshold for a CAT impairment under Criterion 8, an applicant must have sustained class 4 (marked) impairments in three or more areas of function that preclude useful functioning, or a class 5 (extreme) impairment in one or more areas of function that preclude(s) useful functioning, due to mental or behavioural disorder. These impairments are assessed under Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”). Mental and behavioural impairments are rated according to how seriously they affect the applicant’s useful daily functioning. The Guides set out the four areas/spheres of functioning and the levels of impairment as outlined 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 (Deterioration in a work-like setting)
14The parties agree that as a result of the accident, the applicant did not sustain any extreme impairments, nor did she sustain a marked impairment in social functioning.
15Accordingly, the applicant can only meet the threshold of a CAT impairment under Criterion 8 if she is found to have sustained a marked impairment in the remaining three spheres of functioning in dispute as a result of the accident.
16The parties’ respective CAT assessors provide the following Criterion 8 ratings on the remaining three spheres:
Sphere
Dr. Kanagaratnam Applicant Assessor
Dr. Sivasubramanian Respondent Assessor
Activities of Daily Living
Class 4 (marked)
Class 2 (mild)
Concentration, Persistence, and Pace
Class 4 (marked)
Class 1 (none)
Adaptation
Class 4 (marked)
Class 2 (mild)
17Medical records indicate that the applicant had pre-accident mental health and behavioural issues which included depression, anxiety, post-traumatic stress disorder (“PTSD”) symptoms and substance abuse. As will be discussed further below, differences in the Criterion 8 ratings provided by the parties’ respective CAT assessors are in part based on their divergent opinions as to whether the applicant’s psychological impairments are related to the accident (Dr. Kanagaratnam’s view) or unrelated to the accident (Dr. Sivasubramanian’s view).
18I find, based on the medical records, assessment reports and information from the applicant, her family members and friends, that as a result of the accident, the applicant’s pre-accident psychological issues have worsened significantly and that she has limitations and restrictions sufficient to meet the Schedule’s CAT impairment test under Criterion 8.
Marked impairment finding in activities of daily living
19I find the applicant has demonstrated that she has a marked impairment in the sphere of activities of daily living as the result of her accident-related psychological impairments.
20The Guides define activities of daily living as including 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 individual’s 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. As noted in the Guides, 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. Further, the Guides underline that what is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
21The applicant primarily relies on the CAT assessment reports of Dr. Pushpa Kanagaratnam, clinical psychologist (two reports dated June 30, 2021 and March 16, 2023) and Ms. Pooja Joshi, occupational therapist (report dated April 9, 2021). Based on an interview/assessment of the applicant, a review of pre- and post-accident medical records, psychometric testing she conducted and reference to functionality testing conducted by Ms. Joshi, Dr. Kanagaratnam diagnoses the applicant with major depressive disorder single episode, moderate to severe [differential diagnosis: bipolar disorder]; somatic symptom disorder with predominant pain, moderate to severe; post-traumatic stress disorder (“PTSD”) including travel fear; and generalized anxiety disorder. Dr. Kanagaratnam concludes that post-accident psychological issues, including sadness, diminished motivation, sleep issues, poor pain coping, cognitive difficulties and travel fear “are all factors that compromise the applicant’s ability to initiate/participate in self-care, household, school/work and social and recreational activities.” Considering the overall degree of the applicant’s restrictions, Dr. Kanagaratnam finds a class 4 or marked impairment under the activities of daily living sphere.
22The respondent relies on the CAT insurer examination (“IE”) reports of Dr. Sivasubramanian, psychiatrist, and Mr. Dan Gauthier, occupational therapist, both dated November 14, 2022. Like the applicant’s CAT assessors, Dr. Sivasubramanian and Mr. Gauthier interviewed the applicant, reviewed pre- and post-accident medical records and carried out testing and assessments. Unlike Dr. Kanagaratnam, Dr. Sivasubramanian did not do any psychometric testing. In Dr. Sivasubramanian’s view, the applicant is not excessively preoccupied by physical pain, and thus he disagrees with Dr. Kanagaratnam’s diagnosis of somatic symptom disorder. Further, Dr. Sivasubramanian does not find that the applicant meets the criteria of PTSD or generalized anxiety disorder. In his opinion, the applicant shows “no more than a class 2 or mild impairment in activities of daily living secondary to mental and behavioural disorders directly attributable” to the accident.
23I find the reports of the applicant’s CAT assessors regarding this sphere to be more persuasive than the respondent’s corresponding CAT IE reports, and particularly the report of Dr. Sivasubramanian. My finding is based on a consideration of the length of time each party’s assessors spent with the applicant, the nature and content of their observations, the number and type of assessments/testing conducted, and the depth of their analyses in relation to available subjective and objective information and the Guides.
24For example, during the six hours over two days that Ms. Joshi spent with the applicant, she conducted a range of functional testing related to home management, time management, attention to detail, running multiple errands (including in the community), and completing work/school tasks. The work/school task testing was specifically tailored to the applicant’s pre-accident retail job and sociology studies. The various tests produce consistent results in terms of the applicant having difficulty processing information, a diminished ability to recall and pay attention to details, a tendency to get overwhelmed easily and poor activity tolerance. The applicant could not complete most tests, and performed poorly, complaining of nervousness, lack of motivation, pain and fatigue.
25Mr. Gauthier, on behalf of the respondent, spent approximately three hours on one day with the applicant and conducted fewer and simpler functionality tests than Ms. Joshi. He notes that the applicant could correctly sort five pill colours in accordance with daily/weekly needs but could not accurately complete a more complex weekly calendar assignment. Unlike Ms. Joshi, Mr. Gauthier did not assess the applicant’s ability to complete any task directly related to her pre-accident work experiences or university studies. Yet, despite the limitations in his overall assessment design and duration, Mr. Gauthier’s assessment summary is similar to Ms. Joshi’s. Mr. Gauthier observes:
Ms. Fleming-Dorie presented as an individual who continues to suffer with ongoing physical and mental health limitations as a result of the subject accident, resulting in reduced participation in her daily activities, including personal care, meal preparation, housekeeping tasks, and occupational endeavours.
26Dr. Sivasubramanian notes that the applicant is physically capable of performing activities of daily living such as bathing, grooming, independently sorting and picking up her medication from a pharmacy and some household tasks.
27Further, Dr. Sivasubramanian attributes the applicant’s mental and behavioural limitations in this sphere to her bipolar disorder type 2 and borderline personality disorder which he finds to be unrelated to the accident. Missing from Dr. Sivasubramanian’s report is any analysis regarding differences between the applicant’s mental health, functionality and medical treatment pre- and post-accident. Put another way, he offers no opinion on whether, absent the accident, the applicant’s psychiatric conditions alone would likely have resulted in her: not resuming school in any capacity; ceasing any gainful employment; being admitted to hospital on multiple occasions for psychiatric treatment; and taking half a dozen prescription medications for her mental health symptoms. I find that Dr. Sivasubramanian’s failure to provide this necessary causation analysis significantly weakens his report.
28In its written submissions, the respondent appears to acknowledge the causation analysis missing from Dr. Sivasubramanian’s report. The respondent references online information from the Mayo Clinic to support assertions about the purported “typical diagnosis and development” of both bipolar disorder and borderline personality disorder. The respondent further asserts that, “but for the accident” the applicant “would have faced the same challenges with her diagnoses of bipolar disorder and borderline personality disorder, which are the primary causes of her ongoing impairments.”
29The respondent did not provide any authority, nor am I aware of any authority or other basis, upon which the Tribunal may accept Internet information on its own as expert medical evidence. I accordingly assign no weight to the respondent’s online references in support of its submission that the accident is not the “but for” cause of the applicant’s post-accident mental and behavioural impairments.
30Both the applicant and the respondent referred me to cases confirming that the “but for” test is the correct test to use when determining causation in accident benefit cases. The applicant refers to Sabadash v. State Farm et al., 2019 ONSC 1121 (Div. Ct.) (“Sabadash”); the respondent refers to S.V. v. Wawanesa Insurance, 2022 CanLII 11156 (ON LAT), which in turn relies on Sabadash. Under the “but for” test, the accident need not be the sole cause or the primary cause; however it must have been necessary to bring about the impairments. The applicant bears the burden of proving on a balance of probabilities that the accident is a necessary cause of her impairments.
31I find Dr. Sivasubramanian’s conclusions regarding the applicant’s post-accident engagement in activities of daily living are contrary to the medical treating records, other assessors’ findings (including findings of the respondent’s IE CAT assessor Mr. Gauthier), information from the applicant’s family and friends and most self-reporting from the applicant herself.
32For example, while before the accident the applicant was treated for anxiety and reported concentration problems at school to her family physician, there is no evidence before me that she struggled in self-managing her activities of daily living, including consistently attending school and her part-time job. There is also no evidence that the applicant struggled with independently, reliably and appropriately performing any of her pre-accident job tasks or other activities of daily living. However, within months of the accident up to December 2023 (a span of nearly seven years), social work assessments and reports for the applicant paint a consistent picture of her struggling with perseverance, motivation and necessary concentration to complete tasks requiring planning, organizing and assembling (including scheduling and attending medical appointments, completing regular self-care and even recalling the details of a book passage she has just read or a movie she has just seen).
33Further, in the applicant’s self reports to assessors and in will-say statements of the applicant’s family members (included in the neuropsychological report of Dr. William Fulton dated January 20, 2022), there are similar references to the applicant taking care with her appearance and living space pre-accident. Post-accident, the applicant and family members report that the applicant spends little time on personal hygiene, grooming or housework and often has to be cued to do so. Also, the applicant reportedly no longer independently cooks, shops for groceries or runs other errands outside the home independently. The applicant states that she has rarely driven since the accident, and has let her driver’s licence expire, information that is supported by family members and is not denied by the respondent. Whereas she apparently used to enjoy reading and writing pre-accident, the applicant states that since the accident, she cannot sustain the necessary focus for these activities; again, this information is supported by family members.
34I find that the foregoing materials demonstrate stark differences in the applicant’s ability to independently, consistently and appropriately complete activities of daily living pre-accident as compared to post-accident, and that the accident is a necessary cause of these differences.
35In summary, I find that considering her overall level of limitations and restrictions in activities of daily living, the applicant has met her onus in demonstrating, on a balance of probabilities, that she has sustained a marked impairment in this sphere as a result of her accident-related psychological impairments.
Marked impairment finding in concentration, persistence and pace
36I find the applicant has demonstrated that she has a marked impairment in the sphere of concentration, persistence and pace as the result of her accident-related psychological impairments.
37The Guides define impairment in concentration, persistence and pace in relation to an individual’s ability to perform many activities of daily living, including task completion. Task completion refers to the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in activities of daily living or work settings. Strengths and weaknesses in this area of functioning 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.
38I find the CAT assessment reports of Dr. Kanagaratnam and Ms. Joshi relied on by the applicant to more persuasive regarding the applicant’s impairments in this sphere than the CAT IE reports relied on by the respondent.
39I am persuaded by the different types and design of functional testing carried out by Ms. Joshi, both within the testing facility and in the community. During this functional testing, the applicant was asked to complete a series of tasks aimed at assessing her ability to follow instructions, concentrate, problem solve, pay attention to details and maintain sustained effort. As noted above, the testing was carried out over two days, providing more opportunity to observe the applicant and compare each day’s results.
40Mr. Gauthier’s entire assessment including functional testing was restricted to a few hours and involved fewer tests that were simpler in scope to testing carried out by Ms. Joshi. As previously noted, testing conducted by Mr. Gauthier did not incorporate aspects of the applicant’s pre-accident work experience or university studies, nor did Mr. Gauthier assess the applicant’s ability to complete a series of different tasks involving both physical and cognitive components. Nonetheless, I find the test results from both parties’ functional assessors similarly demonstrate the applicant’s impairments in tasks involving multiple elements and requiring problem solving, recall and sustained focus.
41I find that the functional testing results, medical records (including nearly seven years of post-accident social work records) self-reporting of the applicant and will-say statements from family members and friends, provide compelling support for Dr. Kanagaratnam’s determination of the applicant’s class 4 or marked impairment in the sphere of concentration, persistence and pace as a result of the accident. I find that these materials provide a lengthy, consistent record of the applicant’s post-accident struggles to perform all but the most basic self-care and other activities of daily living. During assessor testing and in her actual life, she routinely exhibits panic, fatigue, limited motivation and errors in organizing a schedule or carrying out a series of errands. While the applicant describes having concentration problems with her university studies prior to the accident, she has, based on the evidence before me, engaged in no academic endeavours since the accident. Whereas she worked part-time while going to school pre-accident, she apparently was unable (due to stress/panic) to complete the one job interview she has attempted post-accident. The applicant’s stepfather describes her as doing “a complete one-eighty in terms of her cognitive abilities post-accident” and statements from other relatives and her life-long friend indicate similar views.
42I do not find compelling Dr. Sivasubramanian’s conclusion that the applicant has no impairment in concentration, persistence and pace secondary to mental or behavioural disorders directly attributable to the accident because:
i. he provides no real analysis to support his conclusion, simply indicating that the applicant’s post-accident impairments are likely due to long-standing (pre-accident) psychiatric conditions, including borderline personality disorder and bipolar disorder;
ii. to the extent he acknowledges the applicant’s difficulties with focus and concentration post-accident, he states that these impairments are frequently found in individuals with bipolar disorder; and
iii. his conclusion is inconsistent with most other evidence before me, including the will-say statements of family members and a friend, who describe notable differences in the applicant’s mood, motivation and task-related capabilities pre- and post-accident.
43For the foregoing reasons, I find that the applicant has met her onus in demonstrating, on a balance of probabilities, a marked impairment in the sphere of concentration, persistence and pace due to the accident.
Marked impairment finding in adaptation
44I find the applicant has demonstrated that she has a marked impairment in the area of adaptation as a result of the accident.
45The Guides define adaptation as the ability to adapt to stressful circumstances. Deterioration or decompensation in work or work-life settings refers to the repeated failure to adapt to work or work-life stress. In assessing an individual’s functionality in this area, the Guides provide that consideration be given to the extent to which the individual reacts to stressful circumstances by withdrawing from the situation, experiencing exacerbation of signs or symptoms or having difficulty maintaining activities of daily living, continuing social relationships and completing tasks.
46I agree with Dr. Kanagaratnam that the results of functional testing, combined with information obtained and observations of the applicant during assessment, are consistent with a post-accident marked impairment in the applicant’s ability to tolerate stress in daily living and work or school-like settings, her use of avoidance strategies and a tendency to experience an exacerbation of distress when faced with perceived stressors.
47The fact that the applicant has not returned to school, engaged in any gainful employment or driven somewhat regularly since the accident support a failure in adaptation. Pre-accident, while the applicant struggled with school, family and romantic relationships, I identified no evidence of prolonged periods of withdrawal from activities. Post-accident, the applicant has routinely withdrawn from activities. For example, the applicant’s post-accident hospital admission records reference multiple occasions where she describes feeling that “too much is going on in her life,” and there are observations by treatment providers that she manages better within a protected hospital environment providing simplified routines. Similarly, the social work updates from four months post-accident up to December 2023 show a pattern of the applicant being unable to regulate her emotions, follow through on support and treatment and handle many basic tasks of daily living.
48Will-say statements from the applicant’s family members and a long-time friend likewise describe the applicant pre-accident as “thriving”, “setting goals”, “ambitious”, “driven” and “creative”, whereas she is described post-accident as being “isolated”, “forgetful”, “not there”, “moody” and “anxious all of the time”.
49I note that in late 2020, the applicant was found to be a suitable candidate from a mental health perspective to act as a living liver donor. However, as the medical records indicate, her mental health struggles, including hospital admissions for mental health treatment, continue post-donation. I find this information is indicative of the applicant’s post-accident struggle to adapt, long-term, to life’s regular challenges and stresses.
50I do not agree with Dr. Sivasubramanian’s opinion that, in the area of adaptation, the applicant demonstrates “no more than a mild (class 2) impairment secondary to mental and behavioural disorders directly attributable” to the accident. I find that this opinion is not supported by the totality of the evidence before me, in particular, medical records, social work updates and other assessment reports, which describe the applicant post-accident as “frequently presenting in a state of heightened or severe mental health crisis” and spending weeks at a time in hospital for mental health treatment. I also find that information referenced in materials from the applicant and her family members and friends, as noted above, is compelling and at odds with Dr. Sivasubramanian’s conclusion that the applicant manages many activities of daily life adequately (including self-care, medications, finances and navigating the community independently).
51In sum, I find that the applicant has demonstrated, on a balance of probabilities, a marked impairment in adaptation secondary to mental and behavioural disorders due to the accident.
52Further, based on my finding that the applicant has met the required marked impairment ratings in three spheres of function, I find that she has met her onus in establishing a CAT impairment under Criterion 8.
Additional comments regarding Criterion 8 findings
53Dr. Sivasubramanian suggests that Dr. Kanagaratnam’s Criterion 8 ratings are inconsistent with her Psychiatric Impairment Rating Scale (PIRS) ratings under Criterion 7. I accept Dr. Kanagaratnam’s explanation that “the ratings in the four domains under Criterion 8 do not exactly correspond to the ratings on the PIRS.” As Dr. Kanagaratnam also notes, different versions of the Guides are used for each of the PIRS ratings and the Criterion 8 ratings. Further, as stated above, I find the totality of the evidence before me supports Dr. Kanagaratnam’s marked impairment findings under Criterion 8.
54Additionally, I do not agree with the respondent’s argument that as a psychiatrist, Dr. Sivasubramanian “is a more appropriate and compelling expert” than Dr. Kanagaratnam, a psychologist, regarding whether the applicant has sustained a CAT impairment under Criterion 8 due to the accident. The respondent has not provided any authority, nor have I identified any information in the hearing materials (including in the experts’ qualifications), to support this argument. I have set out above my detailed reasons for finding Dr. Kanagaratnam’s reports and findings to be more compelling than Dr. Sivasubramanian’s.
Applicant’s entitlement to a post-104-week IRB
55I find that the applicant is entitled to a post-104-week IRB in the amount of $194.73 per week from February 24, 2023 to present and ongoing.
56To receive payment for a post-104-week IRB under section 6(2)(b) of the Schedule, the applicant must demonstrate on a balance of probabilities that, as a result of the accident, she suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
57There is no evidence that the applicant has worked in any capacity since the January 2017 accident. The applicant reports participating in an interview for a receptionist position at one point post-accident; however, she states she was unable to complete it due to a panic attack/bursting into tears.
58The respondent did pay the applicant an IRB for six years post-accident, including a post-104-week IRB for four years. The applicant’s IRB was terminated on February 23, 2023, based on the respondent’s multi-disciplinary IE assessments.
59The applicant was employed part-time at a women’s retail clothing store for approximately five months prior to the accident. Prior to that, she worked part-time as a cashier at a fast food restaurant. She was enrolled in the first year of a four-year Bachelor of Social Work program at Lakehead University at the time of the accident. The applicant did not return for the second term of her first year following the accident and she failed three of the four courses she was then enrolled in.
60The applicant argues that due to accident-related physical, cognitive and psychological impairments, she is incapable of returning to her pre-accident job or any gainful employment for which she is reasonably suited by education, training or experience. To support her argument, the applicant relies on the CAT assessment reports of Dr. Kanagaratnam, and the section 25 reports of neuropsychologist Dr. Fulton, referred to above, and neuropsychiatrist Dr. Chanth Seyone, dated August 11, 2021.
61The respondent’s primary argument is that the applicant has not met her onus for a continuing post-104-week IRB as her psychiatric issues are unrelated to the accident and would have, regardless of the accident, resulted in her ceasing to work. In support of this argument, the respondent relies on the paper IRB assessment report of Dr. Sivasubramanian dated February 21, 2023 and his earlier CAT IE opinion.
62Further, the respondent argues that from a physical/functional perspective, the applicant does not suffer from an impairment that results in her complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. The paper physiatry report of Dr. Alborz Oshidari and the functional abilities evaluation report of Dr. Brent Souter, both dated February 21, 2023, are relied on by the respondent in support of this argument.
63Mr. Marcus Bachmann’s vocational evaluation and transferable skills analysis dated February 21, 2023, is also relied on by the respondent to support its argument that, based on the applicant’s pre-accident education and experience and vocational testing conducted as part of the analysis, current appropriate jobs for her include: general office support worker, receptionist, food service supervisor, retail salesperson, other customer and information services representative, food service counter attendant and food preparer.
64I find the reports relied on by the applicant prepared by Dr. Kanagaratnam, Dr. Dr. Fulton and Dr. Seyone to be persuasive regarding the applicant’s post-104-week employability. My finding is based on these reports encompassing in their analyses and conclusions the applicant’s constellation of post-accident mental health and physical challenges.
65For example, Dr. Fulton interviewed, assessed and carried out psychometric testing on the applicant over multiple sessions totalling 19.5 hours. Symptoms he identifies as arising “directly as a result of the accident including severe headache, photo and phono sensitivity, specific phobia, PTSD and cognitive impairment impacting her memory, learning attention, comprehension and sustained processing.”
66I find the applicant’s section 25 reports to be consistent with many of the treating records before me, detailing the applicant’s ongoing struggles with cognitive, psychological and physical issues, including suicidal ideation, sleep disturbance, generalized anxiety disorder, emotional deregulation, lack of motivation, fatigue, headaches and pain. The following excerpts from the applicant’s post-accident treating records describe the nature, severity and duration of these struggles:
i. A report of Dr. Eric Mulder, psychiatrist, dated December 10, 2018, who saw the applicant four days after she presented to a hospital emergency department with complaints of “too much going on” in her life, feeling completely “overwhelmed”, anxious most of the time, sad and angry. The applicant tells Dr. Mulder that she has struggled with symptoms related to the accident, including fear of leaving the house, fear of driving places and frustration “by the fact that she is unable to work because of ongoing pain.” Dr. Mulder’s impressions include that the applicant suffers from major depressive disorder, generalized anxiety disorder, and some symptoms of PTSD from the accident, impacting her ability to follow through with treatment for the accident, likely prolonging the progress.
ii. Further reports from Dr. Mulder in January 2019, February 2022 and March 2022, following the applicant’s hospital admissions for suicidal ideation. Dr. Mulder discusses treatment for the applicant’s major depressive disorder, generalized anxiety disorder and borderline personality disorder. He notes that the applicant “continues to struggle” with mental health symptoms including difficulties with sleep, low mood and feeling very stressed. Dr. Mulder references ongoing challenges to identify effective prescription medications for the applicant’s symptoms.
iii. A Social Work Update Report of Ingrid Kuran, MSW, dated October 16, 2020. Ms. Kuran summarizes the assessment and counselling support she has provided to the applicant since the accident. She notes that more than three years post-accident, the applicant continues to describe accident-related physical, cognitive and psycho-emotional challenges. Ms. Kuran adds that suicidal ideation is an “important issue […] on the agenda of every session.”
iv. A letter “To Whom it May Concern” from Samantha Cohen, MSW, dated September 15, 2023. Ms. Cohen states that she has been working with the applicant since February 2021, in part to support her with working towards returning to her pre-MVA functional status. Ms. Cohen adds that during sessions, the applicant presents as chronically suicidal and regularly reports suicidal ideations and self-harming behaviours.
67I do not find the respondent’s IRB assessments regarding the applicant’s post-104-week employability persuasive because:
i. As I indicate above, I do not accept Dr. Sivasubramanian’s opinion that the applicant’s current mental health impairments are not related to the accident but rather are the result of her borderline personality disorder and bipolar disorder. I find that the accident has exacerbated the applicant’s pre-existing mental health issues.
ii. In the case of Dr. Alborz Oshidari’s physiatry paper review report and Dr. Brent Souter’s functional abilities evaluation report, both dated February 21, 2023, the testing and findings are solely focused on the applicant’s physical abilities, with no consideration of the impact of psychological impairments on her ability to work. Dr. Oshidari acknowledges that his opinion is based on a purely physical point of view. Dr. Souter defers to “the concurrent medical assessor” the question of whether the applicant suffers from any impairment (including psychological) caused by the accident. Given my finding that the applicant sustained a CAT impairment based on mental or behavioural impairments under Criterion 8, the applicant’s employability from a mental and behavioural perspective is necessary in assessing her entitlement to an IRB under section 6(2) of the Schedule.
iii. In Mr. Marcus Bachmann’s vocational evaluation and transferable skills analysis dated February 21, 2023, he describes the applicant expressing fatigue and decreased tolerance as testing continued, her increasing frustration with more complex testing and her slow progress, exceeding the time allotted, on other tests. Mr. Bachmann does not consider the impact of the applicant’s psychiatric/psychological impairments on her test results or the proposed occupations for which the applicant may be suited based on her education, training or experience. Mr. Bachmann acknowledges that due to psychiatric and other possible confounding factors, job matches in his report “are offered provisionally” and that the applicant may benefit from a “situational assessment, work placement, job try-out or through other means.” No situational or other assessment appears to have been arranged for the applicant by the respondent based on Mr. Bachmann’s suggestion. As with the reports of Drs. Oshidari and Souter, I find Mr. Bachmann’s report to be of limited use given its missing consideration of the impact of the applicant’s mental or behavioural impairments on employability.
iv. Last, but certainly not least, it cannot be overlooked that for four years, the respondent paid the applicant a post-104-week IRB.
68In summary, taking into account the nature, severity and duration of the applicant’s post-accident mental health issues and pain complaints documented in the treating records, I find that she is incapable of engaging in any of the jobs identified by Mr. Bachmann, or any other employment or self-employment for which she is otherwise reasonably suited by education, training or experience. In particular, I find that the applicant’s ongoing instability from a psychological perspective makes it unlikely that she could sustain gainful work requiring consistency, reliability, reasonable efficiency, motivation and the ability to handle some stress. As noted above, the respondent appeared to accept that the applicant was entitled to a post-104-week IRB for four years, until IE reports, including those of Dr. Sivasubramanian, were received. For the reasons I set out above, I assign little weight to Dr. Sivasubramanian’s opinion on the applicant’s post-104-week employability.
69Accordingly, I find that the applicant has met her onus in establishing, on a balance of probabilities, entitlement to an IRB in the amount of $194.73 per week from February 24, 2023 to present and ongoing.
Plan for social rehabilitation counselling not reasonable and necessary
70I find that the applicant has not met her onus in establishing entitlement to $3,595.11 ($3,970.00 less $374.89 approved) for social rehabilitation counselling, proposed by Ingrid Kuran in a plan submitted October 28, 2020.
71As a result of my finding that the applicant has sustained a CAT impairment under Criterion 8, she is entitled to the extended tier of benefits that accompanies this designation. However, under sections 15 and 16 of the Schedule, she bears the burden of establishing on a balance of probabilities that the counselling treatment sought is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
72In her submissions, the applicant simply asserts that:
i. the respondent improperly denied the plan for the counselling on the basis that the applicant does not have a CAT impairment and her non-CAT medical and rehabilitation benefits of $65,000.00 have been exhausted; and
ii. if the applicant is found to have sustained a CAT impairment, the plan ought to be funded.
73The applicant does not refer me to the plan itself, any goals of treatment or how the goals would be met to a reasonable degree. Further, the applicant does not provide any evidence supporting or otherwise enabling me to assess whether the cost of the plan is reasonable.
74In sum, the applicant has failed to establish, on a balance of probabilities, that the balance of $3,595.11 sought for the social rehabilitation counselling proposed by Ingrid Kuran is reasonable and necessary. I accordingly deny this claim.
Plan for CAT impairment assessment expenses not reasonable and necessary
75I find the applicant has not met her onus in establishing that the amount sought for CAT impairment assessment expenses – $2,260.00 ($14,012.00 less $11,752.00 approved) – is reasonable and necessary.
76Section 25(1)5 of the Schedule requires an insurer to pay reasonable fees charged for preparing an application under section 45 for a CAT determination. As part of her application for a CAT determination, the applicant arranged for CAT impairment assessments. The only portion of the applicant’s CAT impairment assessment expenses denied by the respondent is for a “centralized comprehensive file review” plus applicable HST.
77The applicant submits that assessors must review the file in order to make a determination on CAT impairment and that accordingly, the amount sought for this expense is reasonable and necessary. In maintaining its denial, the respondent relies on other Tribunal decisions where it was found that a file review is something that could be done as part of an examination in reviewing all available medical information before assessing the applicant to make a CAT determination.
78While I am not bound by other Tribunal decisions, I agree with the respondent that a file review is part of the examination/assessment process. Further, I note that section 25(5) of the Schedule stipulates that the insurer is not obligated to pay more than a total of $2,000.00 plus applicable HST in fees and expenses for “conducting any one assessment or examination and for preparing reports in connection with it.” Accordingly in my view, charging a separate amount for a file review in addition to what is charged for an assessment is contrary to section 25(5) of the Schedule.
79Based on the foregoing, I find that the applicant has not met her onus in establishing, on a balance of probabilities, that the balance of $2,260.00 sought for CAT impairment assessment expenses (a file review) is reasonable and necessary. Accordingly, I deny this claim.
Interest
80Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule.
81Having found that the applicant is entitled to a post-104-week IRB, I further find that she is entitled to interest on that benefit in accordance with section 51 of the Schedule.
ORDER
82I find that:
i. The applicant has sustained a CAT impairment as defined by the Schedule;
ii. The applicant is entitled to an IRB in the amount of $194.73 per week from February 24, 2023 to present and ongoing;
iii. The applicant is not entitled to $3,595.11 for a social rehabilitation counselling benefit;
iv. The applicant is not entitled to $2,260.00 for CAT impairment assessment expenses; and
v. The applicant is entitled to interest in accordance with section 51 of the Schedule on the overdue payment of an IRB.
Released: January 23, 2025
__________________________
Teresa Walsh
Adjudicator