Court File and Parties
Court File No.: CV-15-00522635 Date Heard: 20170127 Endorsement Released: 20170130
Superior Court of Justice - Ontario
Re: Tie Cindy Li v. State Farm Mutual Automobile Insurance Company
Before: Master B. McAfee
Counsel: R. Paul Kiddey for the Moving Party, the Defendant A. Moras for the Responding Party, the Plaintiff
Reasons for Decision
[1] This is a motion brought by the defendant for a neuropsychological examination of the plaintiff by Dr. Mark Dowhaniuk. At the outset of the motion, the defendant confirmed that the motion is brought pursuant to ss. 40(1) and 42(1) of the Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, Ontario Regulation 403/96, as amended (SABS), and in the alternative, pursuant to Rule 33 of the Rules of Civil Procedure and s. 105 of the Courts of Justice Act, R.S.O. 1990, c.C.43. The plaintiff took no issue with the motion proceeding pursuant to the above-noted sections/Rule in the manner set out above.
[2] For the following reasons, I am satisfied that the proposed examination will assist the defendant to determine if the plaintiff is or continues to be entitled to a benefit and in particular will assist the defendant to determine whether the impairment is catastrophic. I am also satisfied that the proposed examination is reasonably necessary.
[3] The plaintiff was involved in a motor vehicle accident that occurred on December 24, 2008. The plaintiff commenced four actions, three of which seek payment of accident benefits. In the within action the plaintiff seeks, inter alia, a declaration that she sustained a catastrophic impairment as a result of the accident.
[4] The plaintiff is claiming that she is catastrophically impaired on the basis that she has a whole body impairment rating greater than 55 per cent, and has sustained an impairment that, in accordance with the American Medical Association’s Guides in the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.
[5] The plaintiff’s medical documentation and opinions in support of her application for a determination of catastrophic impairment include diagnoses of mild traumatic brain injury, cognitive impairment, chronic pain, posttraumatic stress disorder and major depressive disorder.
[6] The defendant’s experts, Dr. Henry Rosenblat, psychiatrist, Dr. Ben Meikle, physiatrist and Dr. Mark Dowhaniuk, neuropsychologist have concluded that a neuropsychological assessment is necessary to provide accurate diagnoses and opinions concerning the plaintiff’s impairment, impairment rating and whether she has sustained a catastrophic impairment.
[7] Although plaintiff’s counsel confirms that the plaintiff is no longer alleging a brain injury, the plaintiff is alleging cognitive impairment. Neuropsychological testing asseses cognitive functioning. As stated by Dr. Dowhaniuk at paragraphs 2 to 4 of his affidavit:
Generally speaking, Neuropsychology is the study of brain behaviour relationships. The field of clinical neuropsychology focuses on the assessment and management of patient suffering from a condition or conditions affecting normal brain functioning. The hallmark feature of the neuropsychological assessment is the administration of standardized psychometric measures to determine the presence, nature, and extent of deficits related to a person’s cognitive functioning. Tests are administered to evaluate particular cognitive domains including but not limited to attention (e.g. multi-tasking, dividing attention in the presence of distraction), memory (verbal memory and visual memory), “executive functioning” (generating new information, problem solving, planning), visual-perceptual abilities, language, and measures of general intelligence and academic achievement. A person’s test performance is compared to normative clinical and non-clinical populations to control for the influence of factors such as education and age on test performance.
Prior to the advent of neuroimaging techniques, clinical neuropsychology focused primarily on the administration of psychometric measures to localize brain compromise. Now with neuroimaging techniques brain compromise can be detected and localized; however, neuroimaging techniques cannot provide information about a person’s level of cognitive functioning. The focus of the neuropsychological assessment in the age of neuroimaging is more on the nature and extent of any cognitive deficits as opposed to localization. Neuropsychological testing is the gold standard for evaluating a person’s cognitive abilities by providing a detailed functional evaluation delineating areas of cognitive strength and weakness. This information guides the process of traditional cognitive rehabilitation approaches. Such information is also important as a patient attempts to return to work or attend an educational institution, as certain accommodations and adaptive devices and techniques may be required to compensate for identified areas of cognitive weakness.
Though the primary purpose of a neuropsychological assessment is to identify the presence and extent of brain injury cognitive impairment, neuropsychological assessments are also useful with other clinical patient populations such as psychiatric illness and chronic pain as such conditions are often associated with changes in cognitive functioning. The neuropsychological assessment in this context provides a functional evaluation of a person’s cognitive strengths and weakness for the purpose of treatment planning. In the context of disability determination, a neuropsychological assessment should be conducted to corroborate cognitive related complaints and/or the suggestion of cognitive related disability through an objective evaluation of a person’s cognitive functioning.
[8] Some of the plaintiff’s scores on testing suggest validity concerns which, according to Dr. Rosenblat, can be assessed by neuropsychological testing. At paragraph 9 of his affidavit Dr. Rosenblat states:
- Neuropsychological testing typically includes an assessment of the individual’s motivation, effort level, and/or whether they are trying to perform well or poorly at an assessment.
[9] Dr. Rosenblat was asked to complete his report without neuropsychological testing but was unable to reach appropriate conclusions with regards to either diagnoses or impairments without the testing.
[10] Although Dr. Gerber, psychiatrist, who was retained by the plaintiff, does not agree that a neuropsychological examination is necessary, Dr. Gerber refers to two neuropsychological reports in his report dated December 1, 2014. On the motion it was confirmed that the referenced neuropsychological reports of Dr. Vitelli and Dr. Mester were not conducted by the defendant. Dr. Gerber did not deliver an affidavit for the purpose of this motion. The only affidavit filed in response to the motion was an affidavit from a law clerk. To the extent that Dr. Gerber’s opinion on the need for a neuropsychological assessment differs from that of Dr. Rosenblat and Dr. Dowhaniuk, I prefer the opinion of Dr. Roseblat and of Dr. Dowhaniuk, both of whom delivered an affidavit in support of the motion.
[11] The unreported decision of Jones v. Ivanouski dated November 24, 2009, was relied on by the plaintiff in argument. Jones can be distinguished. The motion in Jones was for a second defence medical examination with a second psychologist pursuant to Rule 33 and s. 105 of the Courts of Justice Act. In Jones the Master found that there was meagre evidence of any cognitive impairment. The within motion seeks an examination pursuant to ss. 40 and 42 of the SABS and a neuropsychological examination has not yet been conducted by the defendant. In the within action, the plaintiff alleges cognitive impairment and seeks a declaration that her injuries are catastrophic as a result, in part, of diminished cognitive functioning.
[12] The plaintiff is seeking significant statutory accident benefits, the eligibility for which depends on the outcome of the catastrophic determination. I am satisfied that it is just that the defendant have an opportunity to conduct a neuropsychological examination of the plaintiff in all of the circumstances outlined above.
Costs
[13] The defendant was successful on the motion and is entitled to costs. In my view the amount sought is too high in all of the circumstances of this motion. No cross-examinations took place. In my view, a fair and reasonable amount that the plaintiff could expect to pay for costs is the all-inclusive sum of $4,500.00, payable by the plaintiff to the defendant within 30 days.
[14] Accordingly an order shall go as follows:
Pursuant to ss. 40(1) and 42(1) of the Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, Ontario Regulation 403/96, as amended, the plaintiff shall attend a neuropsychological examination with Dr. Dowhaniuk, 1176 Islington Avenue, Toronto ON M8Z 4S9, on a date to be agreed upon.
Costs of the motion are fixed in the all-inclusive sum of $4,500.00, payable by the plaintiff to the defendant within 30 days.
Master B. McAfee