DSM - Diagnostic Tools (Autism)

Howe v The Commonwell Mutual Insurance Group, 2021 CanLII 120970 (ON LAT)

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[49]  Dr. Ali, psychiatrist, in her report dated September 17, 2019, did diagnose the applicant with Asperger’s Disorder which is now coded as Autism Spectrum Disorder using DSM-5 with accompanying intellectual impairment. However, with respect to the causation, she concluded that based on the applicant’s extensive pre-accident notes and medical history, she cannot say that “but for” the subject accident the applicant would not have had the same educational and employment prospects that she has at the current time, and she did not find any evidence of a persisting accident-related psychiatric diagnosis.

[50]  Dr. Ali explained during her testimony that under the DSM-4, there were a variety of diagnoses that have been re-grouped in the DSM-5 as Autism Spectrum Disorder (ASD). Dr. Ali also explained that the standard for diagnosis of ASD under the DSM-5 is a clinical assessment, using a clinical interview and the DSM-5. She explained that each of Autism and Asperger’s had a number of criteria that had to be met to confirm a diagnosis. She also explained that ASD includes difficulties with social interactions and transitions, and these are symptoms that the applicant has been dealing with her entire life.

[51]  During her testimony, Dr. Ali explained that before the accident the applicant had this diagnosis of what would now be called autism spectrum disorder and she had difficulty fitting in, making friends, and being socially engaged. This was a neurodevelopmental disorder and a big category in DSM-5, under which there are different types, one of which is autism spectrum disorder that features mainly social deficits and learning disorders which the applicant was documented to have.

[52]  The applicant submits that the applicant’s records contain no diagnosis of Asperger’s or Pervasive Developmental Disorder. On the medical evidence, which I find to be conclusive despite applicant’s submissions otherwise, I find this argument to be unpersuasive for a number of reasons. First, Dr. Ali in her September 17, 2019 did make a diagnosis of Autism Spectrum Disorder, with accompanying intellectual impairment and chronic depression. Second, as described above, autism spectrum disorder and Asperger’s syndrome have been mentioned in several pre-and post-accident medical reports. As a result, I do not find that there has been no diagnosis of Asperger’s or Pervasive Developmental Disorder.

[53]  For completion, while I recognize that there are other medical opinions from other assessors that diagnose psychological impairments stemming from the accident and I have no doubt that the accident likely had some effect initially, which accounts for the possible accident-related diagnoses of exacerbation of pre-existing depression, anxiety, and PTSD. She has received treatment which has been mostly helpful. However, I accept Dr. Ali’s opinion that those accident-related diagnoses, now almost ten years post-accident, have mostly resolved.[30]

[54]  Therefore, as far as causation is concerned (putting aside the parties’ disagreement about the appropriate rating in Adaption), the respondent’s IE assessor concluded that the applicant did suffer an impairment as result of the accident. I also note that the respondent admitted that the applicant suffered some form of impairment as a result of the accident because they paid her benefits up to the maximum allowable amount on non-catastrophic limits.[31] However, any payment of benefits in a previous period by the respondent are irrelevant to my determination of catastrophic impairment, as an insurer can be wrong about an approval (just as they can be wrong about a denial).

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[70]  The evidence demonstrates that following the accident, the applicant’s accommodations at school remained essentially the same. She completed high school, continued to play competitive hockey, attended a work placement, and completed college. Although the applicant switched from academic to applied streams in school after the accident, expert evidence establish that this change was consistent with her prior path.

[71]  From the fall of 2015 through the spring of 2017, the applicant attended Algonquin College in Ottawa. She graduated from the General Arts and Science one-year program (GPA 3.16), then did Performing Arts for one semester (GPA 3.32) before switching to a one-year Event Management program that she also graduated (GPA 2.88). She worked as a volunteer for around a year and a half at a company called Ottawa Special Events where she gathered information from sports teams, wedding venues, and other places where they held events.

[72]  In 2015, she completed a driver reintegration program and did a “terrific job.” The email dated September 17, 2015 from R. Brown, driver rehabilitation specialist indicates that he saw her last on May 19 and she was comfortable and confident driver and completed all approved sessions, save one. Mr. Brown also indicated that the applicant “is a terrific driver…and demonstrated good decision making in busy/complex traffic…”[40]

[73]  In 2019, the undisputed evidence was that the applicant was living alone in Ottawa and doing a work placement on commission with her professor. She was also taking classes, doing homework, and making her own meals. She had her own car and was driving herself to school. She was doing assignments and presentations on her own. At the hearing, the applicant testified that she is now 24 and lives in Kingston by herself and is able to drive and do her groceries. She agreed that she was able to finish high school after the accident, that she went to concerts in the 14 months post-accident, and that she resumed playing hockey in the very first season post-accident. She also got her driver’s license between college years which shows an ability to concentrate and complete tasks. There was information that she had resumed riding an ATV at the parent’s cottage. In July 2013, when the applicant’s mother was asked by Dr. Cancelliere about her daughter’s independence, she reported that there had been no change in her daughter’s level of independence.[41]

[74]  This level of function and activities are simply not compatible with finding that she has a “marked” impairment. Although the applicant switched from academic to applied streams in school after the accident, expert evidence and common sense establish that this change was consistent with her prior trajectory.

[75]  I have no doubt that the accident likely had some effect initially, which accounts for the possible accident-related diagnoses of exacerbation of pre-existing depression, anxiety, and PTSD. However, those accident-related diagnoses had mostly resolved.

[76]  Overall, I also prefer Dr. Ali’s evidence over that of Dr. Keightley because Dr. Ali utilized the DSM-5 diagnostic criteria to diagnose Autism Spectrum Disorder (or Asperger’s as it was prior). The DSM-5 is the handbook created by a consensus of expert psychiatrist and used widely by psychiatrists to diagnose all psychiatric disorders (prior to 2013 it was the DSM-4). In contrast, Dr. Keightley utilized the Autism Diagnostic Observation Schedule (ADOS), a test designed for use by psychologists. In her evidence, Dr. Keightley emphasized what she considered the “gold standard” in autism spectrum disorder (ASD) diagnosis and criticized Dr. Ali for failing to use that test.

[77]  However, based on the expert evidence before me, I accept that the standard for diagnosing all psychiatric disorders by medical professionals is a clinical assessment using a clinical interview and the DSM-5 which is the newest edition which Dr. Ali did use. In cross examination, Dr. Ali explained that the question that are asked in any psychiatry clinical assessment are standardized which she completed as part of the assessment of the applicant.

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Online Dispute Resolution and Autism Spectrum Disorder: Levelling the Playing Field in Disputes Involving Autistic Parties, 2016 CanLIIDocs 312

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Defining and Identifying ASD

There is no single definition of ASD. 3 The disorder itself varies highly among autistic persons. As a result, most legal definitions of ASD tend to be written broadly. 4 Clinical definitions of ASD generally include, but are not limited to, the following: (1) compulsive behaviour; (2) self-isolation; (3) communication difficulties; (4) disturbances in social and language skills; (5) compulsive engagement in repetitive activities and stereotyped movements; (6) unusual responses to sensory experiences; and (7) resistance to changes in environment or routine. 5

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