APPLICANT FOUND CATASTROPHICALLY IMPAIRED DESPITE COMPLEX PRIOR MEDICAL HISTORY – COLLISION NECESSARY CAUSE OF EXTREME IMPAIRMENT
This LAT hearing arose from a motor vehicle collision (MVC) that took place in July 2018. It involved a preliminary issue on whether the applicant was barred from seeking catastrophic (CAT) impairment due to failure to attend a s. 44 insurer examination (IE) as required under s. 55 of the Statutory Accident Benefits Schedule (SABS).
The applicant had been diagnosed with autism spectrum but did not speak to either IE or s. 25 assessors regarding it. She did not communicate with the IE assessors due to remaining in bed – which was contradictory to her speaking to medical professionals while in hospital from 2019 to 2020. Nonetheless, the applicant argued that she should not be discriminated against because of her disability.
Preliminary issues:
Vice-Chair Roberts found the applicant was not precluded from seeking CAT impairment since the applicant’s non-communication with both s. 44 and s. 25 assessors was more related to her disability (autism) and was not a deliberate attempt to thwart assessors. Section 55(2) of the SABS permits a tribunal to allow an insured person to proceed with their appeal despite not complying with an insurer’s request for a s. 44 assessment.
The main issues in dispute at the LAT hearing included whether the applicant sustained a CAT impairment, entitlement to attendant care benefits from August 2019 to date, and treatment plans for occupational therapy (OT) services, social rehabilitation counseling and s. 25 CAT assessments. Special award and interest were also issues.
The Vice-Chair determined that the applicant was deemed to have been catastrophically impaired and entitled to $1,920.67/month in attendant care benefits from August 2019 to present. OT services were deemed partially approved. Social rehab counseling, CAT funding assessments beyond the partial approval and special award were not awarded.
The tribunal permitted the applicant to testify at her hearing despite the respondent’s protests since she did not participate in the IE assessments. However, once given the opportunity, she did not speak at her own testimony. Because the applicant’s mother and brother were added late to the witness list, well after the case conference report and order, they were not permitted to testify. Of note, the applicant’s father and family friend were already testifying as lay witnesses.
Other orders made included:
- The psychiatry report by Dr. Shamalack not be admitted as evidence at the hearing (due to the report being submitted after the production deadline);
- The two insurance adjusters listed on the applicant’s witness list were not required to testify (due to particulars of a special award claim not being provided by the deadline);
- The s. 44 IE report by psychologist, Dr. Joseph was allowed to be admitted (which was produced within production deadlines);
- The applicant was not permitted to question the OT in cross-examination about her hourly rates (as that was not relevant to the issues in dispute);
- The OT’s cross-examination was shortened and ordered to be completed within 90 minutes; and
- Dr. Shamalack’s second report was ordered to be admitted into evidence (even though the doctor was not asked questions during his testimony about the second report, as it had formed part of the applicant’s own brief).
The LAT hearing:
By way of substantive issues at the hearing, the applicant presented with a complex prior medical history. She had been diagnosed in 2014 with autism and began receiving Ontario Disability Support Program (ODSP) benefits in 2018, prior to the MVC. In July 2018, she was involved in the subject bicycle-MVC. In 2019, she was hospitalized and diagnosed with bipolar disorder and the following year, hospitalized twice with autoimmune hepatitis.
Causation was an issue at the hearing. Ultimately, the tribunal found the applicant sustained a CAT impairment under criterion 8 based on an extreme impairment in the area of adaptation (deterioration or decompensation in work or work-like settings). On the issue of causation, the tribunal relied on the Divisional Court’s decision in Sabadash v. State Farm, 2019 ONSC 1121 (Divisional Court) which requires the applicant to establish that “but-for” the accident, the existence of a pre-existing medical issue does not negate an insurer’s liability and further, that the accident need not be the only cause of the impairment, just a necessary cause.
Relying on the evidence of the applicant’s father (as primary caregiver) and the s. 25 psychiatric assessor, Dr. Shamalack, the Vice-Chair found the MVC was a necessary cause of the applicant’s psychological impairments with respect to her functioning post-collision. Prior to the collision, the applicant was able to function with assistance despite her autism, such as being able to dress and undress herself with cueing and supervision, she ate independently, and she could ride her bike with some supervision. Post collision, she could not function in these areas consistently, and was often left mute and isolated in her room for prolonged periods of time.
Despite the respondent’s objections that the applicant’s father was biased and heavily vested in securing aid for his daughter and reliance on ODSP records which listed severe or complete limitations on most occasions as to function, the LAT relied on the father’s testimony as all the assessors also relied heavily on the collateral interviews with the father since the applicant was nonresponsive during assessments. Vice-Chair Roberts noted at para. 48:
“While it is undoubtedly true that parents can be biased towards supporting their children’s cases, this does not necessarily mean that a parent’s evidence is unreliable and I cannot wholly disregard collateral testimony where doing so would leave the applicant with no way to advocate for herself. I am satisfied that the applicant did not willfully thwart assessments through her non-communication and believe that this is more likely due to her autism. This leaves us with the father’s evidence as the primary source of her case.”
In addition, certain pre-collision records argued by the respondent to have suggested a level of functional impairment more severe than suggested by the father’s testimony, were in fact not found by Vice-Chair Roberts to have damaged the father’s credibility. He was found to be an honest advocate for his daughter’s well-being.
On the issue of whether the bipolar disorder diagnoses were properly diagnosed as collision-related, the LAT found that, but-for the MVC, the applicant’s depressed state post-collision worsened her symptoms of autism which alone could satisfy the test for causation.
Prior to the collision, the applicant was functioning on a moderate to marked impairment level according to Dr. Shamalack. Following the collision and supported by an OT reporting that she could not even persist in transferring out of bed, the applicant was determined to have been left with a marked impairment in adaptation.
It is important to note Vice-Chair Roberts’ comments regarding pre-existing conditions at para. 58:
“I find the respondent’s argument in this regard to be unconvincing. By its logic, any individual with a pre-existing functional impairment (such as autism) could never be designated as catastrophically impairment as a result of a MVA if they had severe functional impairments before the accident. This is an absurd conclusion which would rule out vulnerable populations from accessing statutory accident benefits.”
Considering the applicant’s functioning post-collision, she moved from a marked impairment to an extreme impairment under adaptation, unable to adapt to new situations and often left isolated in her room.
The applicant was found entitled to attendant care benefits in the amount of $1,920.67/month. However, she was not entitled to any amounts from August 2019 based the benefits were not incurred and she received a valid s. 33 request for information. Further, while the applicant argued that she should be entitled to a higher amount of attendant care benefits, based on a more recent Form 1 submitted on June 16. 2021 and which proposed benefits valued at over $10,000/month, Vice-Chair Roberts found that the earlier assessment, valuing attendant care benefits at $1,920.67/month, to be more reliable and determined that to be the appropriate quantum of attendant care benefits, as the Occupational Therapist who prepared that in his opinion did a better job of separating what was required as a result of accident-related impairments.
The OT treatment plan for assistive devices was found partially reasonable and necessary but not those for social rehabilitation counseling because the applicant had not met her onus establishing such counselling was reasonable and necessary. Finally, the applicant was found not to be entitled to the remaining outstanding amounts claimed in relation to her s. 25 CAT assessments due to insufficient information on whether those assessments were reasonable and necessary, or a duplication of assessments already approved. Additionally, since neither party made submissions on special award, none was found payable.
