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Hello everyone! Hope you are all embracing the blooming beauty and rejuvenating spirit of the spring season! 🌸

In this edition of our Spring Newsletter, we will be discussing the case decision of  Simmons v. BelairDirect Insurance Company, 2023 CanLII 26935 (ON LAT) [1], in which the applicant was designated catastrophically impaired in criterion 8 of the Statutory Accident Benefits Schedule (SABS).

Ms. Simmons, the applicant, was involved in an automobile accident on February 15, 2018. She sustained a concussion and fracture of her tibia that required surgery. After the accident, she was diagnosed with several mental disorders, including depression with anxiety and PTSD.

When her medical-rehabilitation funding was exhausted, she applied for CAT designation.

The applicant assessor submitted that the applicant suffered from Class 4 (marked) impairments in activities of daily living, social functioning, and adaptation, while the IE submitted that the applicant suffered from a Class 4 (marked) impairment in activities of daily living, and a Class 3 (moderate) impairment in the other three areas of function.

One important difference between the two teams of assessors is that the applicant assessor is a psychiatrist, whereas the IE assessor is a psychologist.

The applicant assessor, being a psychiatrist, considered the applicant’s physical and medical issues, stating that it is important to look at all the applicant’s psychological symptoms and their interaction with her pain and concussion to understand the full scope of her impairment.

The IE assessor, being a psychologist, rather than a medical doctor, primarily focused on the client’s impairments resulting from depression and anxiety, overlooking the influence of her physical and medical conditions on her overall impairment.

In addition, there were variations in the assessor’s interpretation of what makes for a Class 4 (marked) impairment in social functioning.

The respondent rated the applicant with a Class 3 (moderate) impairment in social functioning because “she does not decompensate in all stressful situations.”

They point to surveillance videos showing her taking her dog for a short walk, taking her son to the pool, and engaging in a lengthy conversation at a busy playground and in a restaurant.

The adjudicator did not accept this submission, stating that:

 “It would be unduly onerous to require that the applicant decompensate in any situation involving any amount of stress to establish class 4 (marked) impairment. That would arguably be closer to a class 5 (extreme) impairment…”

The judge added that the applicant’s medical records and testimonies from witnesses corroborated that she suffered from impairments in social functioning.

The applicant had dramatic changes in social functioning after the accident. She became emotionally volatile, short-tempered, aggressive, profane, easily overwhelmed in stressful situations, and prone to panic attacks and emotional breakdowns.

The applicant’s mother testified that the applicant often loses her temper and becomes abusive and profane, describing an episode where she was humiliated by the applicant’s behaviour when they had friends over for dinner.

The applicant’s medical records documented her yelling at her mother during an assessment with a psychiatrist, and a distinct tone of exasperation was present in many of her treatment providers’ notes.

Other examples of altercations and inappropriate behaviour were also documented, such as a physical fight with her neighbor in July and August 2022, and an incident at the airport where she panicked after being separated from her mother for 15 minutes and “lost it at a couple of people.”

The judge observed during the LAT that the applicant frequently broke into tears and needed multiple breaks to compose herself. Additionally, she displayed hostility and combative behaviour during cross-examination, including yelling and swearing at counsel. The judge remarked that her conduct exceeded that of a challenging witness.

According to the judge, these instances of verbal and sometimes physical altercations serve as evidence of the applicant’s Class 4 (marked) impairment in social functioning; they indicate that she is significantly impeded in her ability to interact appropriately and get along with others, including her family, treatment providers, and members of the public.

The most dramatic illustration of decompensation comes from the Occupational Therapy (OT) report. The OT assessment began at the applicant’s home, and consisted of interviewing the applicant and her mother.

During the situational component of the OT assessment, the occupational therapist suggested they go to the grocery store and provided the applicant with a list of items.

The OT provided a vivid description of what followed in his report, which the adjudicator produced verbatim in the case decision:

“Upon being told that she is required to leave her residence to go shopping, Ms. Simmons demonstrated significant distress. She was observed to rub her hands and cry profusely, like she did much throughout the entire assessment. She was observed to stutter, scream and uttered ‘I cannot be rushed at all, this is not happening, I don’t want to go shopping, I just don’t feel like today is a good day to go out’. She was observed to franticly run out of the door, into her own apartment which was located across the hall’. She was provided 20 minutes, in which time her mother attempted to desensitize and calm her down’. Ms. Simmons was retrieved into the apartment by her mother, after which she again reported; ‘I have to get my son at five, and he depends on me, I have to make sure that I’m ready for him, If I try this shopping, this will kill me for the rest of the day, I’m already sick, I can’t…’ she was observed to cry profusely once again which rubbing her hands. She reported ‘I usually save my energy for the whole day; sometime I have friends to motivate me to leave the house. They sometimes take me to the dog park in the morning. I feel like having a schedule is key, and without one I’m struggling so hard to have it, I have no time management’.

Her mother attempted to comfort her as she was crying however, she pushed her mother away and screamed ‘I have to get their mommy, you don’t have to do s***, you just have to watch me… I’m tired… I’m so tired… don’t touch me, don’t touch me… I can’t handle any more stress and bull**** in my life, it’s all stress and bull****… I can’t do this, I didn’t brush my teeth, I am wearing the same clothing as I did yesterday, I don’t look presentable, I don’t want to do this’
She then left the apartment once again, pushing her mother’s hands away and forgot about the kettle which was running as she turned it on to make tea.
The occupational therapist attempted to retrieve the client once again; however, the client was adamant she is not leaving her residence today, even to attempt.

The test was subsequently terminated.”

The adjudicator determined that this was compelling evidence that the applicant is Class 4 (marked) impaired in adaptation, noting:

 “[the applicant] has not worked since the accident, and I cannot envision her succeeding in any workplace. She can decompensate dramatically when she encounters stress in activities of daily living or social interactions, and she tends to avoid stressful situations…”

Healthcare providers should document the client’s behaviour and examples of decompensation during treatment sessions to provide additional information about their daily function and behaviour as evidence in court.

An OT report and situational assessment play a pivotal role in determining whether the client’s impairment level falls into the catastrophic category, as they reveal the client’s ability to function and cope in stressful situations and demonstrate their overall capabilities. They also act as supporting evidence to testimonies and self-reports.

At GLA Rehab, our OTs are skilled in professional report writing and situational assessments, guiding clients through the CAT impairment application process and making appropriate referrals.

We stay up to date with recent case decisions and improve our recommendations accordingly.

Please contact us for assistance. We are here to help.

Best wishes for a refreshing spring season!

From all of us at GLA Rehab.

[1]Simmons v BelairDirect Insurance Company, 2023 CanLII 26935 (ON LAT), <https://canlii.ca/t/jwjzk>, retrieved on 2023-05-15