Citation: Sinclair v. The Personal Insurance Company, 2025 ONLAT 24-006812/AABS

Licence Appeal Tribunal File Number: 24-006812/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:

Diane Sinclair

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR:

Mary Henein Thorn

APPEARANCES:

For the Applicant:

Ajay Kapur, Counsel

For the Respondent:

M. Greg Abogado, Counsel

Court Reporter:

Guido Riccioni

HEARD: by Videoconference:

April 22, 23, 24, 25, 2025

OVERVIEW

1Diane Sinclair, the applicant, was involved in an automobile accident on July 17, 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 the respondent, The Personal Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2At the start of the hearing the applicant withdrew the issue of a catastrophic impairment, massage therapy services as well as the request for an award and interest as listed in the case conference report and order dated October 16, 2024 (“CCRO”).

Procedural ISSUES

Exclusion of the Applicant’s Supplemental Document Brief and Book of Authorities

3The respondent objected to the admission of the applicant’s supplemental document briefs at the start of the hearing. The applicant filed the supplemental brief on April 15, 2025, seven days prior to the hearing and a second supplemental brief was filed on April 21, 2025 only four days prior to the hearing. The first brief contains an index and the second contains the applicant’s medical claims history from RBC, a CV from Dr. Joan Quinn and the instruction letters from the respondent to its assessors. The CCRO orders the parties to exchange any material they intend to rely on at the hearing no more than 21 days before the hearing.

4The applicant submits that all records should be made available for the Tribunal to make the appropriate decision regarding the applicant’s catastrophic impairment and the documents should not be excluded due to a technicality. She further submits and the respondent agreed to obtain the CV of Dr. Quinn and the instructions letters, however the respondent is now objecting to the medical claim history included in the applicant’s supplemental brief. The applicant advised the Tribunal the records were only made available to the applicant on April 21, 2025 and it was provided to the respondent immediately.

5The supplemental briefs are accepted into evidence. Beyond the argument that the brief was filed late, the respondent did not provide any specific submissions as to how it would be prejudiced by the inclusion of the brief. I accept the applicant’s submission that the records were not available to her until April 21, 2025 and she expeditiously provided the material to the respondent. I am also persuaded by the applicant’s submission that the brief is important to assist the Tribunal in having the relevant evidence to review in coming to a decision in this matter. I also find both parties had approximately equal time to review the documents as they were received and exchanged at the same time.

6The respondent raised a second procedural issue. It submits the applicant is looking to enter into evidence two reports that contain virtually the same content from two different assessors. Both reports, one filed by Dr. Joan Quinn, Psychiatrist on March 27, 2023 and the other by Dr. Anson Liu, Psychiatrist issued on June 26, 2024, contain verbatim, mirror image language in the reports. The respondent is requesting an order to exclude the report of Dr. Quinn on the grounds that the evidence is duplicative, it is an abuse of process, and the applicant is trying to “supersize” her evidence. It argues that the applicant does not intend to call Dr. Quinn to testify, therefore her report is not necessary.

7The applicant submits that she intended to call both Dr. Quinn and Dr. Liu to testify at the hearing, however the respondent objected to the testimony of both assessors. Therefore, the applicant chose to have Dr. Liu testify as his report is the most recent. The applicant denies both reports are the same, even though they both gave the applicant the same ratings, each assessor reviewed the medical documents and came to their own conclusions. The findings may appear closely related; however, since Dr. Liu provided more fulsome explanations in his report, they are not in fact mirror images. She also submits that the respondent’s section 44 assessor reviewed Dr. Quinn’s report when making a determination, therefore Dr. Quinn’s report is important, relevant and it should not be excluded.

8I am not persuaded by the respondent’s argument that Dr. Quinn’s report should be excluded as it is duplicative. Dr. Liu reviewed Dr. Quinn’s report and other medical documentation and came to his own conclusion. Since find Dr. Quinn’s report is relevant to the issues in dispute and I will consider it together with all of the evidence presented.

ISSUES

9The issue in dispute is:

i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

RESULT

10The applicant has not demonstrated she that she has sustained a catastrophic impairment as defined by the Schedule. .

ANALYSIS

The applicant is not catastrophically impaired under Criterion 8

11I find the applicant has not established on a balance of probabilities, that she has sustained a catastrophic impairment under Criterion 8 as a result of the accident for the following reasons.

12The applicant is seeking a catastrophic impairment designation under section 3.1(1), paragraph 8 of the Schedule (“Criterion 8”). The applicant contends that her severe impairments and functional limitations are caused by the subject accident. She submits she sustained injuries to her neck, back, foot and has psychological issues including Adjustment Disorder, Major Depressive Disorder, Post Concussive Syndrome, Social Anxiety and Driving Anxiety. She also submits as a result of the accident she also has suffered a concussion. As a result, she is now catastrophically impaired. The applicant further submits that it is well settled that leading up to the accident her life was stable, she was working, raising her children, married and she had an active lifestyle.

13In support of her position, she relies on the opinions of Occupational Therapist Varun Madan and the final reports of multidiscipline catastrophic assessors. Dr. Tajedin Getahun, Orthopaedic Surgeon dated March 17, 2023, an Executive Summary Report dated February 23, 2023 and a Rebuttal Report dated July 15, 2024.

14The applicant acknowledges that pre-accident she was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), Adjustment Disorder and has experienced bouts of situational depression in the past. In 2000 she experienced a terrible breakup for which she received counselling for approximately 6 months to a year, was given antidepressants, and that she also lost her father suddenly in 2015. She had some difficulty bouncing back from her father’s death so to assist with her depression she was prescribed the following medication; Wellbutrin, Trazodone, Vyvance, and Dexilant. The applicant maintains that at the time of the accident both the ADHD symptoms and the situational depression she was experiencing were under control.

15She also concedes that pre-accident she suffered from a number of physical impairments. Due to complications with an epidural, she had ongoing lower back pain but submits the pain was manageable, to alleviate the pain she would go for therapeutic massages and was attending treatment leading up to the time of the accident. The applicant also testified that she had an acid reflux issue since her youth, however it is her opinion that since the accident the acid reflux has exponentially gotten worse.

16Two days prior to the accident the applicant had hip surgery however, she submits that it did not impair her pre-accident level of functioning.

17The applicant testified that post accident she continued to face hardships when her mother was diagnosed with lung cancer and subsequently passed away in 2023. Further, her and her wife with whom she shares 2 children (one with special needs) dissolved their marriage after 15 years in an unamicable way. What about her physical symptoms post-accident?

18The respondent disagrees with the applicant’s opinion that her pre-accident physical and psychological impairments had resolved pre-accident and as such it raises the question of causation. It points to the applicant’s testimony and other evidence provided, it is well documented that she had prior physical and psychological impairments. She has also suffered a number of traumatic events pre and post accident that materially contributes to her psychological issues.

19The respondent submits that even if we were to consider that all of these injuries were as a result of the accident, they still do not rise to the level of class 4 marked impairments in three of the four domains. It argues that the applicant continues to have full life and is still able to function with few limitations.

20The applicant underwent Insurer’s Examination assessments for catastrophic impairment with Occupational Therapist Dan Gauthier and Psychiatrist Dr. Anil Joseph. Together they concluded the applicant suffers from mild to moderate impairment in three of the four spheres.

21The test to determine whether the applicant has sustained a catastrophic impairment is a legal one and not a medical one. See: Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras. 29-30.

22An insured person is catastrophically impaired under Criterion 8 if they prove on a balance of probabilities that an accident causes them to sustain three or more marked (class 4) impairments or one extreme (class 5) impairment in the areas of function due to mental or behavioural disorders.

23These impairments are assessed under Chapter 14 of the 4th Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”). Impairments are classified according to how seriously they affect a person’s useful daily function in four broad, overlapping, activity categories, or “domains” using word descriptions in a five category scale that range from no impairment to extreme impairment. It is not the category label that has to be assessed, but rather the language in the descriptions. Each of the four domains of functioning, classes of impairment, and rating criteria are set out in the following table from Chapter 14 of the Guides at page 301:

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)

The catastrophic assessors gave the following ratings:

Sphere	Dr. Tajedin Getahun	Dr. Anil Joseph
Activities of Daily Living	Class 3	Class 3
Social Functioning	Class 4	Class 3
Concentration, Persistence, and Pace	Class 4	Class 3
Adaptation	Class 4	Class 3

Activities of Daily Living (“ADL”)

24Both assessors agree that the applicant’s impairment in the sphere of activities of daily living, is below a level of marked impairment, being a class 3 (moderate impairment). I accept the applicant has not sustained a marked impairment in the sphere of activities of daily living. The applicant does not assert that she has a class 5 (extreme) impairment.

25Therefore, in order to be deemed catastrophically impaired, the applicant must meet the burden to establish that she has a class 4 impairment in the spheres of social functioning, concentration, persistence, and pace, as well as adaptation as a result of the accident.

Social Functioning

26I find the applicant has not sustained a class 4 or 5 level of impairment in the domain of social functioning.

27The factors to consider under the social functioning domain are an individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others such as family members, friends, neighbours, grocery clerks, lenders, etc. Impaired social functioning may be demonstrated by history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. An individual’s ability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities are seen as strengths in social functioning.

28The assessors agreed there is an impairment in the area of social functioning but disagreed on the levels. Dr. Getahun opined the applicant has a marked (class 4) impairment and Dr. Joseph finds there is a moderate (class 3) impairment.

29At the time of the accident the applicant submits she was married with two children, she was highly motivated, with a great job, socialized with her friends, had a very active social calendar, She submits she had a very happy and fulfilled life.

30Since the accident the applicant testified that she has had a substantial change in personality, and she is now an entirely different person. She has less energy and motivation; her interpersonal skills are not the same and she prefers to stay in bed on the days she does not have her children. She suffers ongoing depression, anxiety, limited coping skills and has little patience. As a result, it is her position that she has lost her marriage, she has lost friends, she does not socialize as much. She testified she is no longer close with two nieces that she had a very close relationship with pre-accident. During her testimony she attributed the breakdown in their relationship to her change in personality post accident and a disagreement pertaining to her mother’s estate.

31Assessors Dr. Quinn and Dr. Liu both conducted virtual assessments, and both agree the applicant suffers a (class 4) marked impairment. I find Dr. Liu’s report dated October 1, 2024 is extremely similar in language and format to that of Dr. Quinn. I will assign less weight to the report of Dr. Liu as in my view, it is unclear if he made the determination based on his interview with the applicant or if he simply concurred with the findings of Dr. Quin. Dr. Liu reviewed Dr. Quinn’s report as part of the medical review.

32In Dr. Liu’s report he diagnosed the applicant with Somatic Symptom Disorder, Specific Phobia, Situational Type (vehicular) Disorder, and Major Depressive Disorder “re-existing but worsened with the subject collision” [emphasis added]. He lists a number of psychological stressors taken from Psychologist Dr. Emily Gavett-Liu’s report dated June 1, 2022. The list includes the death of her father in 2015, financial strain, her mother’s terminal lung cancer, her daughter’s special needs, and a history of pre-existing depression to name a few.

33Dr. Liu opines in his report that if it were not for this accident the applicant would not have these psychological issues.

34Dr. Liu also provided a psychiatric rebuttal report. He disagrees with the findings of section 44 assessor Dr. Joseph citing internal inconsistencies which affected his findings and conclusion, and he points to the fact that Dr. Joseph did not conduct any collateral interviews. Dr. Liu further opines that the applicant suffers a marked impairment because of her inability to emotionally regulate towards family, friends and community members which adversely affects her ability to relate to people in her life.

35The respondent and the respondent’s assessors disagree. The respondent submits that the applicant had a good relationship with her mother before she passed away, she has a good relationship with her children, she is co-parenting with her ex, and she is still able to maintain friendships. She has even entered into a new romantic relationship which has been ongoing since 2021, (two years after the accident). The applicant has also testified that she has travelled post accident with her current partner and children to the Bahamas, Hawaii, Great Wolf Lodge, British Columbia (for a funeral) and Florida. The applicant says that she attended these trips because her partner enjoys travelling and for the sake of her children. Further, the applicant has also demonstrated that outside of her familial circle, she socializes with friends and participates in other social activities. For example, a friend who lives in the same area as the applicant asked the applicant to try a yoga class, the applicant attended.

36Dr. Joseph agrees with the respondent’s submissions. He conducted an in person 2-day assessment and found the applicant has a moderate (class 3) impairment in his report dated June 24, 2024. He testified at the hearing that he diagnosed the applicant with Persistent Depressive Disorder although he did not include that in his report.

37It is his opinion that she struggles with depression, but it was a pre-existing condition and although it may have been slightly exacerbated by the accident, the accident is not the total cause. He points to the same things the respondent raised at the hearing. He opines that as her mother’s cancer diagnosis, her younger daughter’s diagnosis with ODD and ADHD and her difficult with her ex are contributing factors to her psychological issues. He says parenting a child with those diagnosis is very challenging. It is his opinion that despite her psychological issues, she is able to travel, is actively involved with her children overcoming the demands of her special needs child and is able to function. She has good relationship with her family members and can maintain a new romantic relationship which all prove she does not have a (class 4) marked impairment in this sphere.

38The applicant is also heavily involved in her children’s lives when they are in her care. She drives the kids to school when she has them, takes them to the movies, bowling and takes her younger daughter to program called Run, Jump and Throw which runs every Saturday for 6 weeks. She takes her children to ringette and soccer games/practices. She testified that when she takes her children to games and practices she does not socialize with other parents, rather she waits in her car and often sleeps.

39I am not persuaded by the applicant’s submission she suffers a marked impairment (class 4) in the area of Social Functioning. I find the applicant has demonstrated in several instances that post accident that she is able to establish and maintain new and old relationships.

40I find the applicant’s testimony contradicts the finding of Dr. Quinn and Dr. Liu. I disagree with Dr. Liu’s opinion that due to the accident the applicant has a persistent preoccupation with physical symptoms which has led to depressive and anxiety symptoms to the point of which she meets the test for a (class 4) marked impairment.

41By her own testimony the applicant demonstrated she has good working relationships with the people in her life. She has shown she has he has a good relationship with her children as they have traveled together on several occasions, she is involved in their extra curricular activities, she cooks for them and assists with their homework. Post accident when her mother was diagnosed with cancer, she testified that she often drove from Metcalfe to North Bay (four hours) to take care of her mother and meet her needs. That speaks volumes to the quality of the relationship she has with her mother. She is also in a new functioning romantic relationship since 2021. Her partner also travels with the applicant and her children, and the applicant testified that her partner often drives from St. Catherines to stay with the applicant and her children.

42The respondent’s assessors found the applicant has a (class 3) moderate impairment given the decrease the applicant’s ability/desire to socialize and her perceived change in personality and bouts of depression. Given the applicant’s ability to maintain familial and outside relationships, I am persuaded by the opinion of the section 44 assessors based on the evidence I was presented with.

43I find on a balance of probability the applicant does not have a class 4 marked impairment in the sphere of Social Functioning.

44Having found that the applicant does not have a class 4 impairment in the domains of activities of daily and there is no evidence that the applicant has a class 4 impairment or higher in the domain of living social functioning, this is sufficient to find that the applicant has not sustained a catastrophic impairment under Criterion 8. However, for completeness, I will consider the last two domains.

Concentration, Persistence, and Pace (“CPP”)

45I find the applicant has not sustained a class 4 or class 5 level of impairment in the domain of concentration, persistence, and pace.

46The factors to consider under the CPP domain relate to task completion and refer to the ability to sustain focussed attention long enough to permit the timely completion of tasks commonly found in activities of daily living or work settings. Deficiencies in CPP are best noted from previous work attempts or from observations in work-like settings. 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.

47The applicant believes she has suffered a concussion that was not properly diagnosed immediately after the accident, and this is why she has difficulty in the area of concentration persistence and pace. She maintains that she was focused on her physical issues, she did not know she may have needed medical intervention for a brain injury. A representative assisting her with her long-term disability benefit suggested that was likely the case. It was then that she started to investigate the possibility.

48She reports experiencing diminished attention, concentration, and poor short-term memory. For example, she has difficulty remembering dates, appointments, and numbers, she loses things around the house, will forget things when she leaves the house, has left the stove on a few times, and is always late for appointments. When driving she often gets disoriented and looses her way. She also submits that when she parks her car she never remembers where it is parked. She has great difficulty focusing when she tries to cook, therefore meals need to be quick and easy. She attributes these issues to pain, fatigue and depressive symptoms. She also surmised medication could also be playing a role. In support of her position, she relies on the opinion of Dr. Quinn and Dr. Liu.

49Dr. Quinn gave the applicant a (class 4) marked impairment and Dr. Liu agreed with Dr. Quinn’s opinion. Based on the applicant’s subjective reporting and the opinion of Occupational Therapist Mr. Varun Madan in his assessment report dated November 22, 2022, the applicant suffers a (class 4) marked impairment.

50Dr. Liu conducted a virtual assessment, during that assessment the applicant reported to Dr. Liu that her memory function has decreased by approximately 50% post accident. Dr. Liu opines that pre-accident the applicant had no previous cognitive impairments and based on his assessment and the result of the Montreal Cognitive Assessment test he conducted; he opines the applicant has a significant change in her cognitive ability due to significant pain symptoms. It is his opinion the applicant has difficulty with delayed recall and poor attention which causes her to make mistakes. He also opines that the applicant has a moderate stress intolerance, and that stress may cause her to withdraw, or it can cause a worsening of her symptoms.

51The respondent submits the applicant is has a moderate (class 3) impairment in the area of concentration persistence and pace. She has proven she is able to organize and manage her personal affairs effectively and she has been able to make and execute big decisions in her life with attention and focus. For example, she was able to find and rent a new home after the separation with her wife, and later she was able to manage her money, research, and eventually purchase a new home after the accident.

52Not only has she been able to manage her personal affairs, but she is also able to keep track of her children’s extra curricular activities, she drives them to games within her region and she also testified she drove them from Russell to Ajax, nearly four hours away one direction. She also testified that she assists her children with their homework, and she is able to cook for herself and her children albeit simpler meals.

53The respondent also points to the fact that she has driven long distances (over 4 hours one way) to assist in the care of her mother when she was dying of cancer which requires a great deal of focus and concentration.

54The respondent also points to what it considers flaws in the information gathered in Dr. Liu’s report. First he relied on Mr. Madan’s report which was already 2 year old, the information was outdated. Also Mr. Madan only conducted a one day virtual assessment, where as the respondent’s assessor conducted an in person two day assessment. Lastly of huge concern is the fact that Dr. Liu’s report mirrors word for word much of what Dr. Quinn’s report says. It questions the validity of the report, and it questions how much of the report is in fact Dr. Liu’s opinion.

55It relies on the opinion of Dr. Joseph who assigned the applicant a moderate (class 3) impairment. He opines that there is a confluence of factors that contribute to her functioning in this sphere.

56He took into consideration a two day situational assessment conducted by Mr. Gauthier and his report dated June 24, 2024. The applicant participated in a multi-tasking activity that required her to complete a list of activities in one hour, she was able to work efficiently and was able to multitask with efficiency. Dr. Joseph also administered the MoCA test amongst other tests and found that she scored slightly higher than normal, she lost points due to a delay in her recall. He also took into consideration her ability to drive both short and long distances, her ability to manage her finances and look after her children, assist with their homework, cook, and maintain their sports schedule.

57It is Dr. Joseph’s opinion based on his assessment that she does suffer some impairment, but it does not rise to the level of (Class 4). He found pursuant to the AMA Guides, 4th Edition, the applicant’s impairment levels are compatible with some, but now all, useful functioning and assigned her a moderate (class 3).

58Dr. Liu conducted a rebuttal report, and he disagrees with the findings of Dr. Joseph. He points to the fact that the applicant had no issues with her memory pre-accident, she was able to stay focused and was able to concentrate. He also points to the fact that Dr. Joseph did not do a collateral interview with the applicant’s partner who has known her for a significant length of time.

59I find the applicant does not suffer a (class 4) marked impairment in the sphere of concentration, persistence, and pace. I prefer the report of Dr. Joseph over that of Dr. Quinn and Dr. Liu’s. I find Dr. Lui’s report contains quite a bit of mirror image language from Dr. Quinn’s report, which gives me hesitation to give full weight to his report since I am unable to determine if that is in fact his opinion based on his own assessment.

60Further to that, if I only take into consideration the applicant’s testimony, she has demonstrated that although she does suffer some impairment which both assessors agree she does, she is still has some useful functioning and can manage much of her daily activities. She is able to drive short and long distances, manage her children’s school and sports schedule, participate in a romantic relationship, and make and execute important decisions such as renting a home for her family and eventually purchasing a new home. She has not met her burden on a balance of probability she meets the test in this domain.

61I do take into consideration her testimony that when she arrives at her children’s games she is tired and sleeps in the car and that sometimes she misses things such as appointments and such. I also took into consideration that she has to cook simpler meals as it takes too much to cook more elaborate meals. I believe that the assessors took that into consideration when assessing her pre and post accident levels of concentration, persistence, and pace.

62However, I find that activities the applicant does partake in, do require a great deal of attention to detail and concentration and she is able to function more than not within this domain. I find she does not meet the test for a (Class 4) marked impairment in the sphere of Concentration, Persistence and Pace.

Adaptation

63I find the applicant has not sustained a class 4 or class 5 level of impairment in the domain of adaptation.

64The factors to consider under the adaptation include the repeated failure to adapt to stressful, work or work-like circumstances. Under stressful circumstances, an individual may withdraw from the situation or experience exacerbation signs and symptoms of a mental disorder. That is, the individual would decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks. Stressors common to the work environment include attendance, making decisions, scheduling, completing tasks and interacting with supervisors and peers.

65The applicant was recently employed in a new position at the time of the accident, she was on the third day of training. She continued working for approximately 14 months post accident then stopped.

66The applicant submits that due to COVID 19, her workload with her new employer was light, her employer told her to take it easy, train at her own pace, read the product knowledge and take her time. Given that in person visits with clients was shut down, things really ground to a halt her job became simple. It was not until approximately June of 2020 when COVID restrictions lifted that she was asked to start seeing clients in person. When she attempted to resume in that fashion, the applicant submits she became overwhelmed, she could not keep up with emails, she did not do any in-person calls and she was not able to provide the quality service she was accustomed to providing. As of September 2020, she stopped working, was diagnosed with an adjustment disorder by her Family Doctor, Dr. Alison Barnes, she went on Short Term Disability and in January of 2020 she was put on Long-Term Disability through her employer’s benefits. She later applied and was approved for Canada Pension Plan Disability benefits. She attributes her difficulty working to a brain injury caused by the accident.

67Dr Liu supports the applicant’s position that she suffers a (class 4) marked impairment in this sphere. Dr. Liu opines that the applicant clearly exhibits a marked impairment as she was a fully functioning individual pre-accident and now she is unable function in an employment like setting. He opines that her reported depression, irritability, poor emotional regulation, impaired concentration, and poor multi-tasking ability would likely result in workplace conflict. He rebuts Dr. Joseph’s opinion stating that by Dr. Joseph’s own admission, the applicant had no previous functional impairments prior to the accident in this area. She was an award winning sales representatives without any previous work difficulties. He opines that in Dr. Joseph’s report there is a list of examples of the applicant’s noticeable impairment. For example, the ability to stay focused, memory lapses, the necessity for memory aids to complete asks. Dr. Liu opines that Dr. Joseph has overlooked these issues and inappropriately gave her a (class 3) moderate impairment.

68The respondent disagrees with the applicant’s position and raises the question of causation. There are several entries in Family Doctor Barnes’ clinical notes and records which indicate the applicant was facing extreme stress due to traumatic events in her life outside of the accident which Dr. Liu did not factor in his analysis.

69Found in the applicant’s family doctor’s records dated September 14, 2020, is a note from Dr. Barnes which indicates the applicant needed a sick note for work (starting with eight weeks off then will re-assess) to assist her mom who was just diagnosed with cancer. Her notes also indicate the applicant is experiencing acute stress and reaction to both her mom’s cancer diagnosis and the separation from her wife. Dr. Barnes also indicates that the applicant has a long history of depression and together they discussed self care and available resources to assist her with coping with the stressors in her life.

70Also noted in Dr. Barnes clinical notes dated October 5, 2020, November 20, 2020, December 3, 2020 there is further mention of her mom’s cancer diagnosis, and the application needs further time off of work to assist her mom. The notes continue to reference stressors in the applicant’s life. Her mom’s cancer diagnosis, being overwhelmed because the applicant was moving and had difficulty with her landlord/real estate agent (things were not going smoothly), she was working on the separation with her wife (in mediation), her ex-partner was really struggling with her mental health. The notes also indicate she was seeing a psychologist who advised the applicant to call Family and Children’s services and police and “..feels like she’s carrying everyone’s burden” [emphasis added]. Lastly her children were struggling because of the separation, COVID and were having difficulties at school.

71Dr. Joseph agreed and testified that it is his opinion the applicant would not have continued to work even if the accident had not occurred due to the personal issues going on in her life due to the stress and trauma she was going through. He points to parenting a child with ODD, her mother’s cancer diagnosis and the traumatic separation the applicant went through with her wife. to a number of issues which are unrelated to the accident. He further opined that despite the difficulty in her life, she has been able to continue making decisions, maintaining a schedule, and completing tasks. Although she does have an impairment, and pain causes her irritability, it is his position that there is no history of the applicant having contentious disputes with people in the wider community. Dr. Joseph opines the applicant at best suffers a (class 3) moderate impairment.

72The respondent also submits less weight should be given to Dr. Liu’s opinion as he bases his opinion on the applicant’s subjective reporting in which she inaccurately points to the accident as the sole reason she stopped working.

73I find the applicant does not have a marked impairment (class 4) in the sphere of adaption. I am not persuaded by the opinion of Dr. Liu, I find he did not provide in his analysis how the stressful life situations the applicant was going through contributed to her impairment. In my opinion the stressors in her life are significant enough to make contribution to her ability to adapt to work like situations. Even if all of her symptoms were attributed solely to the accident, I agree with Dr. Joseph, she has suffered some impairment but not a (class 4) marked impairment level.

74The applicant has not persuaded me that she has difficulty with any professional relationships, she was able to purchase a house, deal with her landlord, she participates in her children’s education with educators, coaches for her children’s teams, counsellors, doctors, and other professional relationships in her life. She is able to make decisions, and complete tasks as demonstrated by a move to a new home after her separation from her wife and then subsequently the purchase of a new home. To facilitate those two moves, it would have required a great deal of planning, budgeting, timing, and dealing with a variety of different professionals in order to execute that plan. Further, she also testified that she has been able to participate in making decisions regarding the affairs of her mother’s estate. I acknowledge that she had a disagreement with her nieces and perhaps sister regarding the decisions surrounding the estate, however I find there are far more examples demonstrating the applicant is able to work with others without disputes than not.

75For those reasons I am not persuaded that on a balance of probabilities the applicant suffers a marked impairment in the sphere of adaption.

Conclusion and ORDER

76For all the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she sustained a catastrophic impairment under Criterion 8 in accordance with the Schedule as a result of the accident.

77The application is dismissed.