17-001627 v. Certas Direct Insurance Company, 2017 CanLII 99139

Date: 2017-12-20

Tribunal File No: 17-001627/AABS

Case Name: 17-001627 v Certas Direct Insurance Company

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Applicant

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Susan Sapin

APPEARANCES:

For the Applicant: Joseph Felice, Counsel

For the Respondent: David Raposo, Counsel

HEARING IN WRITING ON: September 13, 2017

OVERVIEW

1The Applicant [applicant] was seriously injured in an automobile accident on January 15, 2015, when the vehicle in which she was an unbelted rear seat passenger lost control and slammed into a tree at 80 kilometers an hour, as the occupants were on their way to work. At the time of the accident, [the applicant] was 17 years old and attending Grade 12 classes one day a week at an alternative high school while working part time as an airplane cleaner.

2The applicant was taken by ambulance to Brampton Civic Hospital, and then transferred that same day to Sunnybrook Hospital.

3There is no dispute she sustained objective physical injuries in the accident, including compression fractures to the thoracic and lumbar vertebrae (T7-8 and L2 – L3; transverse fractures to L1 – L2; a right sacral ala fracture¹; fractures to the first and ninth ribs; an “extensive” bruise to the right scalp² and in front of her ear; a fractured nose; cuts to her lip, wrist and knees; lacerated liver; a collapsed lung, and bruising to the shoulder and pubic bone. There is also no dispute that she suffered a concussion and mild cognitive impairment, and that she developed psychological symptoms after the accident.

4The applicant spent two weeks in hospital, and wore a Jewitt brace for six weeks to support her spine while it healed, and periodically after that³.She received physiotherapy in her home two – three times a week for several months, progressing from using a walker to walking without assistance.

5Certas paid medical benefits, attendant care benefits up to the statutory two- year limit, and weekly non-earner benefits (NEB) of $185 for two years under the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). It eventually terminated these benefits on the basis of insurer examinations (IEs) that found there was no objective medical evidence of ongoing impairment as a result of the accident and that the applicant had healed “remarkably well;” that she had reached maximum medical improvement; and that her complaints of pain and functional impairment were not credible. The applicant disagrees and appealed to this Tribunal to resolve these disputes.

6The applicant’s position is that as a result of the accident, she continues to suffer from pain and psychological difficulties severe enough that she continues to meet the statutory test of complete inability to qualify for an NEB, and that the medical and rehabilitation treatment denied by Certas is necessary and reasonable to treat her ongoing impairments. She has also applied to Certas for a determination that she meets the statutory threshold for catastrophic impairment, which would entitle her to an enhanced level of medical, rehabilitation and attendant care benefits.

ISSUES TO BE DECIDED

7At the case conference, the parties agreed to a hearing in writing and identified the following as the issues to be determined:

a) Entitlement to a non-earner benefit (NEB) of $185.00 per week from December 31, 2016 to date and ongoing;⁴

b) Entitlement to attendant care benefits (ACBs) of $6,000 per month from January 29, 2015 to date and ongoing. At paragraph 21 of her written submissions, the applicant further claimed entitlement to ACBs of $3,000 per month from January 29, 2015 to June 22, 2016 and 2,978.12 from June 23, 2016 to January 15, 2017, less amounts already paid by Certas;

Entitlement to medical and rehabilitation benefits and the costs of examinations as follows:

c) $2,342.76 for assistive devices, recommended by Elite Specialist Group Inc. in a treatment plan dated February 5, 2015;

d) $2,459.40 for assistive devices, recommended by Elite Specialist Group Inc. in a treatment plan dated February 19, 2015;

e) $4,316.26 for psychological services, recommended by Elite Specialist Group Inc. in a treatment plan dated August 12, 2015;

f) $5,335.06 for chiropractic services, recommended by 2121587 Ontario Inc. in an undated treatment plan,

g) $5,536.66 for psychological services, recommended by Elite Specialist Group Inc. in a treatment plan dated July 5, 2016;

h) $2,907.44 for chiropractic services, recommended by 2121587 Ontario Inc. in a treatment plan dated October 5, 2016;

i) $5,586.66 for psychological services, recommended by Elite Specialist Group Inc. in a treatment plan dated November 28, 2016;

j) $16,837.00 for a catastrophic assessment, recommended by Omega Medical Associates in a treatment plan dated October 31, 2016;

k) $2,683.75 for an orthopaedic assessment, recommended by Elite Specialist Group Inc. in a treatment plan dated June 26, 2015;

l) $2,486.00 for an in-home follow up assessment Form 1, recommended by Elite Specialist Group Inc. in a treatment plan dated September 9, 2015;

m) $2,486.00 for an in-home follow up assessment Form 1, recommended by Elite Specialist Group Inc. in a treatment plan dated March 31, 2016;

n) $1,976.76 for an in-home follow up assessment Form 1, recommended by Elite Specialist Group Inc. in a treatment plan dated February 5, 2015;

o) $2,655.50 for a psychological assessment, recommended by Elite Specialist Group Inc. in a treatment plan dated June 30, 2015;

p) $263.72 for completion of a disability certificate by Elite Specialist Group Inc., denied by the respondent on March 16, 2016;

q) $2,948.29 for transportation expenses, submitted by Elite Specialist Group Inc., denied by the respondent on May 10, 2016;

The applicant further claims:

r) An award under Regulation 664⁵ because the respondent unreasonably withheld or delayed payments to the applicant;

s) Interest on any benefits overdue.

RESULT

8Having reviewed the submissions and the evidence before me, I find that:

c) The applicant is entitled to an NEB of $185 per week from December 31, 2016 and ongoing;

(i) Regarding the claim for ACBs the applicant is entitled to the $503.02 per month Certas has already paid. The applicant is not entitled to the higher amounts because she has not established that her attendant care provider (her mother) sustained an economic loss equal to those amounts, as required by s.19(3)4 of the Schedule. Accordingly, this claim is dismissed.

(ii) The claim for attendant care at the catastrophic level of $6,000 per month is not premature. If the applicant is determined to be catastrophically impaired she would be entitled to ACBs of $1,273.92 per month from 104 weeks after the accident, or January 15, 2017, subject to the requirement to prove economic loss.

Claims for medical/rehabilitation benefits and the costs of examinations are no longer in dispute:

d) – q) In its Respondent’s Written Submissions, Certas advised that it has reconsidered its position on these claims and has paid them in full, except for portions that exceed maximums payable under the Schedule or the Professional Services and Fee Guideline mandated by the Financial Services Commission of Ontario (FSCO). In her Reply Submissions, the applicant identifies the amount paid by Certas for items c) – q) as $19,378.46. Claims in excess of statutory and Guideline maximums are not payable. Consequently, I find items c) – q) are no longer in dispute, subject to the applicant’s related claim for an award and interest, below.⁶

r) The applicant is entitled to an award of 5 percent under Regulation 664 because Certas’ delay in paying the claims itemized above in c) – q) was unreasonable.

s) The applicant is entitled to interest on overdue payments regarding the claims identified in a) and c) – q) above, to be calculated by the parties.

DISCUSSION

Entitlement to Non-Earner Benefits:

9To be entitled to an NEB, the applicant must establish on a balance of probabilities that she meets the NEB test in s. 12 of the Schedule The test is further defined in s. 3(7)(a) of the Schedule, which states “ a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

10In Heath v Economical Mutual Insurance Company⁷, the leading decision on point, the Court of Appeal set out the proper analytical approach for determining entitlement to NEBs. The general principles articulated in Heath have been adopted by LAT adjudicators and can be summarized as follows:

• The starting point for the analysis is to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.

• The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration of which will depend on the facts of the case.

• All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life.

• The applicant must prove that his/her accident related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.

“Engaging in” should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can physically perform those activities.

11In this case, the last two principles above are particularly important to my conclusion that the applicant qualifies for an NEB.

Pre-and post-accident activities and life circumstances:

12The written submissions and documentary evidence filed by the parties do not include a first-hand account from the applicant of her activities and life circumstances before and after the accident. I have therefore looked at the next best evidence - what the applicant told the numerous health professionals who took detailed medical histories from her during treatment and assessment sessions. I compared her statements with medical and other evidence before me and evaluated them for consistency and plausibility. Where contemporaneous reported statements differ from assertions in the written submissions prepared by counsel, I accept the former as likely to be more accurate.

13I reject Certas’ submission that the applicant has failed to meet the “very stringent” test of complete inability to carry on a normal life because she has not provided corroborating evidence of her pre- and post-accident activities and how her alleged impairments continuously prevent her from engaging in substantially all of her pre-accident activities. I find the documentary evidence before contains sufficient detail for me to apply the principles in Heath and make those determinations.

Pre-accident activities:

14Considering the evidence in light of the first three principles in Heath, I find the activities most important to the applicant before the accident centered on school, family, social life and part-time work. Although there is limited detail, I find there is nothing contentious or unusual in the reported descriptions of her pre-accident life and circumstances. Excepting the undisputed facts that she was attending high school only one day a week, and changed schools several times in her teen years because of turmoil due to her parents’ divorce, I find her activities and preoccupations before the accident to be fairly typical for a teen- aged girl.

15Regarding work, the applicant had a seasonal job as a Food Services Associate at Canada’s Wonderland from March to July 2014, with daily shifts of 3 – 8 hours. Employment records indicate she was a good employee with a “positive attitude and ready to work.” There is no dispute that at the time of the accident the applicant had been working for several months part time as an airplane cleaner at the airport for the same company as her mother. Although the written submissions prepared by her counsel state this was full time work, most of the reports by assessors quote her as saying it was part time, and that is what I find⁸. A September 28, 2015 report by Dr. Pradeep J. Alexander, the orthopaedic surgeon who attended to the applicant at Brampton Civic Hospital and who prepared her discharge report, described the work as requiring heavy lifting, climbing up and down stairs, and carrying heavy cleaning equipment.

16On the home front, the applicant reported that she lived in a two-story home with her mother, a 13-year old sister, and two brothers aged 4 and 19. The applicant cleaned her own room and washroom and shared the usual household chores, including meal preparation with family members. In particular, the applicant was responsible for watching her 4 year old brother when he was home from school and when her mother was working. She would cook for him, play with him and get him ready for bed.⁹ As evidence indicates the applicant was raised in a strict traditional family with a mother who worked outside the home, I find her description consistent with duties that would typically be expected of the eldest girl.

17Socially and recreationally, the applicant described normal activities for a person her age – she enjoyed visiting nearby cities (she lives in Brampton); going to restaurants, coffee shops and lounges with her friends; shopping, watching movies and spending time with her siblings. Although her claim that she frequently exercised at the gym including lifting weights, running on the treadmill and using other equipment was not corroborated by any other evidence, there is no indication anywhere in the pre-accident medical records to contradict this or to indicate that she would not in fact have been able to engage in such activities before the accident.¹⁰ The applicant, five feet two inches tall, told a number of assessors that she weighed 125 pounds before the accident and put on 35 – 40 pounds afterwards due to inactivity, which she found distressing. I find it reasonable and likely that she did attend a gym as she says before the accident to stay in shape. I find these to be common activities for teens, and I dismiss Certas’ submission that I should I reject the applicant’s claim that she engaged in these activities before the accident, simply because they are uncorroborated.

18Regarding school, the applicant’s Ontario Student Transcript for grades 9 – 11 (2012 – 2015) reveals that she was steadily, if slowly, pursuing her goal of finishing high school despite a family life that was significantly disrupted by her parent’s separation, divorce and remarriages to different spouses when she was in Grades 8 and 9. She obtained average marks in grades 9 and 10, with a high of 77 in grade 9 geography; a 70 in Grade 10 Canadian history and a 74 in Grade 10 Career Studies. Things took a turn for the worse in Grade 11 when she took fewer courses and failed Foundations for College Level Mathematics. However, she repeated the course and obtained a 74 percent average in that class. I reject Certas’ submission that the applicant’s claims to its neuropsychological assessor that she received “all A’s”¹¹ indicate any serious attempt to mislead or that they undermine her credibility in any significant way. I find that before the accident, the applicant demonstrated the cognitive ability, intention and perseverance to complete high school courses that would lead to college level studies with a view to a career in policing, which was her stated goal.

19In the years before the accident, because of the divorce, the applicant’s mother struggled as a single mother. She and the children moved several times and the applicant frequently had to change schools. They eventually lost their home after the applicant’s father abandoned the family for six months; at one point the family was homeless and the children were sent to live with grandparents. Despite these considerable obstacles, I accept that the applicant was able to cope emotionally, maintain social relationships, contribute to household chores, look after her younger siblings, work part time and persevere with her plan to graduate high school and apply to a college-level Police Foundations programme which would hopefully lead to a career in law enforcement.

Post-Accident Activities:

20Applying the principles in Heath, I find the medical evidence supports the applicant’s claim that her experience of persistent pain, fatigue, reduced activity tolerance, perceived cognitive impairment, depression and high levels of anxiety due to the accident significantly, continuously and practically prevent her from engaging, from a qualitative perspective, in substantially all of her pre-accident work, social, educational, family and household activities.

21I find Certas’ position, that the applicant is “a young woman who has made a remarkable recovery” and that she has reached maximum medical recovery, is not well founded. I disagree with its submission that the medical documentation the applicant relies on is unreliable because it is based “almost exclusively” on her subjective reports, whereas Certas’ evidence is more reliable because it is based on “objective indicia of assessments.” And I disagree with Certas’ interpretation that the applicant’s symptom amplification, pain behaviours and poor effort measured by its assessors can only mean that her pain and psychological distress are not genuine, and therefore she has not met her onus to prove that she meets the test for NEBs.

22In light of the evidence as a whole, for the reasons set out below, I find the applicant’s subjective reports to be believable and prefer the medical evidence tendered on behalf of the applicant over that of Certas’ assessors. I find that the applicant continues to meet the test for an NEB at this time.

Medical Evidence:

23As mentioned, there is no first-hand account from the applicant before me, and my findings about her ability to carry on a normal life after and as a result of the accident are taken from the ample medical evidence before me including the notes, assessments and reports of medical health practitioners.

24From a physical point of view, all of the medical evidence indicates that the applicant has complained consistently of daily right-sided headaches, and pain to her neck, back, shoulder, knees and right hip (radiating into her legs), despite demonstrating functional active range of motion for these joints, except for her trunk, where all assessors found restricted range of motion due to pain.

Ms. Robbins

25Ms. M. Robbins, an occupational therapist (OT) who assessed the applicant five times between October 2015 and December 2016 for Certas, reported in November 2015 that the applicant presented with reduced trunk flexion and lateral flexion due to stiffness, pelvic pain and back pain with movements. ¹²Ms. Robbins also acknowledged that although functional range of motion was adequate, the applicant experienced pain on movement in all of her joints. In particular, due to neck and shoulder pain when reaching overhead, the applicant could not wash her own hair. Ms. Robbins noted reduced physical tolerances for bending/low level postures and lifting/carrying; mental and physical fatigue; persistent right side headaches with swelling and tenderness; and sensations of heaviness and weakness in the applicant’s legs and head. She noted the applicant was distressed and overwhelmed with changes in her body, including a weight gain of 35 – 40 pounds due to inactivity, and noted the applicant’s complaint that she spent a lot of time sleeping.¹³

26Ms. Robbins’ subsequent reports note a gradual worsening of the applicant’s pain complaints, that she was distressed about sleeping 14 hours per day. By May 2016 the applicant had stopped driving due to increased stress and nervousness since the family moved to Brampton, near the scene of the accident, and Ms. Robbins recommended driver training to facilitate improved coping strategies when driving. She noted the applicant took painkillers daily, including Naproxen, Extra-Strength Advil, Ketoralac, and Statex (a morphine- based painkiller), as well as an antidepressant. She recommended a physiatry assessment due to the applicant’s persistent physical symptoms, and assistance with personal care due to reduced physical tolerances for bending/low level postures, lifting/carrying due to symptom aggravation of the back and right-sided pelvis, as well as both mental and physical fatigue, and ongoing post-concussion symptoms.¹⁴

27In her final report dated December 22, 2016, Ms. Robbins noted that the applicant continued to demonstrate functional range of motion but still with pain in her neck, back, shoulder, hips and both knees. Ms. Robbins recognized the applicant’s increased feelings of depression and anxiety but deferred to a qualified mental health assessor. She expressed a genuine concern as an OT with the lack of education and the components of the assessment that appeared to be somewhat self-limited by the presence of pain.¹⁵She felt the applicant would benefit from education and encouragement within her home environment as outlined in her previous reports. Ms. Robbins reviewed the insurer examinations (IE’s) of Drs. O. Gharsaa and J. Muhlstock, Certas’ orthopaedic and physiatry assessors, respectively, concluding they provided no objective support for impairment and stating she, as an OT, was not qualified to comment on diagnoses, prognoses or even whether the applicant suffered an impairment.

28I find the reports of Ms. Robbins support a finding that the applicant has complained consistently of pain on activity, psychological distress and cognitive dysfunction, that her symptoms have worsened over time, and that they are likely to be genuine. I did not find the opinions of Drs. Gharsaa and Muhlstock, discussed below, to be persuasive, and find the fact that Ms. Robbins deferred to them on professional grounds does not detract from the value of her observations of the applicant.

Dr. Alexander

29Dr. Pradeep J. Alexander, an orthopaedic surgeon who admitted the applicant to hospital after the accident and prepared her discharge summary, examined the applicant in September 2015, nine months after the accident, and prepared a report on her behalf.¹⁶Dr. Alexander is an experienced practising orthopaedic surgeon who is head of Orthopaedic Surgery for both the Etobicoke General and Brampton Civic hospitals who also lectures at the University of Toronto and McMaster University. In addition, he does both plaintiff and defense medical/legal work. Given his qualifications, experience, and first-hand knowledge of the applicant’s injuries, I find his report persuasive.

30Dr. Alexander’s examination of the applicant was consistent with that of Certas’ orthopaedic assessor, Dr. Osama Gharsaa, in that it revealed that the applicant’s objective injuries – the spinal fractures themselves, which Dr. Alexander described as serious – were healed. However, Dr. Alexander noted the applicant’s reports of ongoing pain in her neck that radiated to her rhomboid muscles, right-sided low back pain that was worse with sitting, standing or stooping for even short periods of time; mid-thoracic pain made worse with any bending or stooping-type posture; headaches; and bilateral shoulder pain with any overhead lifting or reaching. Dr. Alexander reported limitations in the applicant’s neck, back and both shoulders which he felt would lead to permanent restriction and impairment that would affect the applicant for the rest of her life, even though continued therapy might decrease her pain. He opined that this would translate to permanent difficulty lifting, carrying or bending/stooping and that would affect her ability to stand, walk and do heavy lifting and reaching. She would be unable to either return to her pre-accident employment at the airport or pursue a career in Police Foundations as both those jobs are highly physical and involve lifting, running, and walking up and down stairs. These impairments would restrict her household and home maintenance tasks as well as her social, recreational and athletic activities.

31Dr. Alexander opined that the applicant would require ongoing pain medications, and may be a candidate for referral to a pain clinic for optimal management of her pain. I find it significant that Dr. Alexander reported that there were no signs of functional overlay during his assessment. This means the applicant did not display any inappropriate emotional overreaction to her physical condition. In addition, Dr. Alexander performed validity tests which did not reveal any attempts by the applicant to misrepresent her symptoms or restrictions. I find these factors, as well as Dr. Alexander’s opinion that she would still have permanent and serious restrictions even though her original objective injuries had healed, indicate that the applicant’s pain complaints are not only genuine, but significantly restricting. All of the medical evidence before me indicates the applicant’s unresolved pain complaints are ongoing to this day and her psychological condition has deteriorated as a result of her inability to cope with her pain. Dr. Alexander was not asked specifically whether the applicant met the test for an NEB – this is the question I, as trier of fact, must answer. For the reasons stated above, I find Dr. Alexander’s assessment and the conclusions he makes about the effect of pain in restricting the applicant’s activities are relevant and persuasive in evaluating and determining that the applicant, on a balance of probabilities, is entitled to NEBs.

Dr. Gharsaa and Dr. Muhlstock

32Dr. Gharsaa examined the applicant over a year after Dr. Alexander, in November 2016. He concluded the applicant had no objective signs of any ongoing musculoskeletal or trauma-related impairment “apart from some self- limiting pain-focussed decreased range of motion of her back and her shoulders,” and overall she demonstrated a functional range of movement. Dr. Gharsaa did not describe any specific orthopaedic tests. He felt the applicant was deconditioned, and feared causing herself pain. He noted that he discussed with her briefly “the pain that hurts versus pain than harms concept.”¹⁷

33Dr. Gharsaa concluded that despite the applicant’s residual pain, she should continue home-based exercises to help with her conditioning and “Most importantly, she should be reassured and encouraged to resume all her pre- accident activities to prevent any further deconditioning; in fact, avoiding such activity would be more detrimental to her outcome. She should also be educated about pain that hurts versus pain that harms.”¹⁸This well-meaning advice might have been helpful in the months after the accident. Unfortunately, the evidence indicates that by the time Dr. Gharsaa saw the applicant, almost two years later, she still experienced pain despite functional range of motion, was still unable to cope with her pain, her psychological condition deteriorated, and her resulting depression and anxiety had worsened.

34In response to Certas’ question about whether the applicant sustained an impairment that would continuously prevent her from engaging in substantially all of the activities in which she ordinarily engaged before the accident (the NEB test), Dr. Gharsaa stated that she did not, from an orthopaedic point of view.

35Certas’ physiatrist, Dr. Joshua Muhlstock, made similar findings and reached the same conclusion as Dr. Gharsaa, from a physiatric point of view, that the applicant had recovered quite well from an objective neuromuscularskeletal perspective. He could find no objective clinical findings of physical impairment when he examined the applicant, commenting that although she sustained significant injuries in the accident, any soft tissue injuries and fractures would have healed. He reported evidence of symptom amplification, with some pain behaviours and poor effort, and noted particularly that the applicant was self- limited upon formal range-of-motion testing, but that he observed discrepancy/inconsistency informally. He too felt that she should be encouraged and reassured that she was capable of reengaging in all of her pre-accident activities, and that she could do so without any physical restriction.

36I find the opinions of Drs. Gharsaa and Muhlstock, confined as they are solely within the perspective of their own medical specialties, to be too narrow. I find it unreasonable that the applicant should be encouraged to return to all of her pre- accident activities, most of which cause her pain, and some of which involve heavy lifting, without any restrictions and when it is acknowledged that she is deconditioned. I also find their opinion and advice to her to just get on with her life, to be unrealistic, given her psychological impairments, discussed below. By the time these assessors examined her, the applicant had developed significant psychological difficulties and maladaptive pain-coping strategies, and had been prescribed morphine-based medication to deal with her pain. I find Drs. Gharsaa and Muhlstock should have been aware of these factors, as their reports list a number of medical records and reports that document these developments. Although they presumably would have reviewed these documents, they do not address them in their reports.

37The opinions of Drs. Gharsaa and Muhlstock are not helpful in determining whether the applicant meets the NEB test because they ignore the applicant’s experience of pain in regard to activity. Two of the factors to consider when determining entitlement to an NEB set out in Heath, referred to in paragraph [10] above, are 1) if the applicant experiences significant restrictions when performing an activity, it may not count, qualitatively, as “engaging” in that activity; and 2) if pain is the primary reason the applicant cannot engage in former activities, the focus is not on whether the applicant can physically perform those activities, but whether the degree of pain practically prevents the applicant from performing them. Neither physician considered these factors. I find the conclusions of Drs. Gharsaa and Muhlstock, based as they are solely on the applicant’s functional range of motion without considering her physical tolerances or experience of pain, to be unpersuasive.

Dr. Pilowsky, Dr. D. Jovanovski, and Ms. Keightley

38I find the two assessment reports (August 2015 and July 2016) prepared by Dr. J. Pilowsky, the applicant’s treating psychologist, more helpful in determining the effect of pain and emotional distress on the applicant’s ability to engage in her normal pre-accident activity. These reports reveal that the applicant’s life changed drastically after the accident, and despite physiotherapy, massage therapy, chiropractic treatment sessions 2–4 times per week, pain medication (including morphine-based medication), muscle relaxers and antidepressants, she became increasingly depressed and anxious due to the pain, changes in her body and physical restrictions in her life after the accident, and became unable to cope.

39Although there are some factual errors in Dr. Pilowsky’s reports, I did not find them to be significant or to detract from the value of her assessments. In August 2015 she diagnosed the applicant with Post-Traumatic Stress Disorder (PTSD), Major Depressive Disorder, severe, and Somatic Symptom Disorder, Persistent, Severe, with Predominant Pain. The applicant scored high on a test that reflected three aspects of catastrophizing with respect to pain: ruminating, pain magnification, and helplessness. Dr. Pilowsky explained, “Individuals who score in the elevated range of this measure are thought to be responding in a psychologically dysfunctional manner to their pain, which in turn, serves to impair their level of overall functioning.”¹⁹Dr. Pilowsky opined that the applicant’s experience of injury following the accident had left her hyperaware of her vulnerability to harm, while her anxiety, depressed mood, cognitive changes, and diminished energy significantly interfered with her activity level in all spheres and she was “deeply concerned about her ability to improve, which collectively skews her once optimistic view of the future.²⁰

40As noted by Dr. Pilowsky, the applicant reported the following changes in her life:

• social withdrawal, isolation and loneliness, in part because her parents became overprotective after the accident and refused to allow her to see her friends, whom they saw as a bad influence, and forced her to shut down her social media accounts;

• inability to socialize, attend school, look after siblings, help around the house or work due to physical pain and reduced tolerance for sitting, standing, walking, bending and lifting;

• feelings of uselessness, guilt and inadequacy because of her inability to provide leadership role to her younger siblings or look after them; to help around the house; to return to work;

• being distraught at her inability to finish high school, despite trying to do so on three occasions since the accident, due to pain, headaches and inability to concentrate or multi-task;

• crying bouts when alone, when overwhelmed with loss of important interpersonal relationships, pain, fatigue and psychological distress, frustration and irritability;

• difficulty focusing, concentrating, multitasking, impaired short-term memory, inability to make decisions;

• strained deteriorated relationships within her immediate family due to her changed disposition, frequent arguments, increased irritability over trivial matters, depressed mood, and constant fatigue;

• unwillingness to attend family gatherings with extended family or go out with friends: “I feel too sick to go out, and when I do, my back starts aching or something starts to hurt and then I just want to go home . . .it feels like work;”²¹

• Disrupted sleep and excessive fatigue;

• Vehicular anxiety as a driver and passenger, both for herself and her family

41These descriptions are consistent with the applicant’s reports to all of her assessors. I note that at about this time, the applicant’s family doctor, Dr. C. Stircu, diagnosed the applicant with depression and prescribed an antidepressant and supportive counselling.

42I am satisfied that from a qualitative point of view, these descriptions indicate the applicant cannot engage in substantially all of her pre-accident activities as she did before the accident.

43Certas based its position that the applicant’s psychological symptoms and subjective experience of pain were not genuine or credible largely on the assessment and report of Dr. D. Jovanovski, neuropsychologist, who conducted an insurer’s examination of the applicant in December 2016. Dr. Jovanovski administered thirteen tests. Eleven were designed to assess neurocognitive impairment due to the mild traumatic brain injury sustained in the accident; two tests were to evaluate psychological symptomatology.

44Regarding the neurocognitive tests, Dr. Jovanovski reported that the applicant failed three stand-alone cognitive symptom validity measures, with scores well beyond the generally accepted cut-off scores for valid performance, indicative of a “very high degree of symptom exaggeration,” and rendering invalid the results of cognitive testing. Citing a 2003 research article entitled “Detection of malingering using atypical performance patterns on standard neuropsychological tests,” Dr. Jovanovski further stated that according to the research literature, the use of a criterion of failure on two symptom validity indicators best discriminates between credible and non-credible individuals.

45Despite citing the above article, Dr. Jovanovski stopped short of stating the applicant was malingering; instead, she concluded only that, due to invalid test results, she was unable to determine if the applicant’s symptoms of cognitive impairment were due to brain injury. Furthermore, she conceded that “Secondary factors such as reported physical pain and headaches/migraines, dizziness/nausea, emotional/psychological issues (including reported low mood, anxiety/panic attack symptoms, post-traumatic stress symptoms, and somatic preoccupation), and reported sleep disruption and fatigue may be negatively impacting upon her cognition [emphasis added] . . .”²²Regardless, Dr. Jovanovski stated that the presence and/or extent of the applicant’s reported cognitive and psychological problems could not be determined “. . .as the current neuropsychological test results are uninterpretable given the noted validity issues.”

46Regarding the applicant’s psychological symptoms, Dr. Jovanovski reported that the applicant failed two self-report measures of symptom validity, the Personality Assessment Inventory (PAI), a 344-item self-report questionnaire, and the Structured Inventory of Malingered Symptomatology (SIMS), a 75-item true or false screening instrument used to detect probable malingering. The applicant’s scores on the SIMS test showed “a very significant degree of symptom exaggeration with elevations across three subscales of atypical symptoms (i.e. Neurologic Impairment, Affective Disorders, and Amnesiac Disorders.) I note that only one subscale, Affective Disorders, refers to emotional as opposed to cognitive factors.

47Regarding the PAI, Dr. Jovanovski concluded the profile was invalid. She explained that this meant that, “with respect to negative impression management, the pattern of results obtained is often associated with a deliberate distortion of the clinical picture, or possibly a “cry for help” or extreme or exaggerated negative evaluation of oneself and one’s life. Regardless of the cause the test results are unlikely to be an accurate reflection of [the applicant’s] objective clinical status and reflect her self-description.”

48Dr. Jovanovski then went on to describe the applicant’s self-description, which involved “. . . significant elevations across several scales, including depressive symptomatology, preoccupation with physical functioning and health matters and severe impairment arising from somatic symptoms, anxiety symptoms and worry that compromise her ability to concentrate and attend, specific fears or anxiety surrounding some situations and maladaptive behaviour patterns aimed at controlling anxiety, suspiciousness and mistrust in her relations with others, with a pattern often associated with prominent hostility and paranoia. She reports being socially isolated with few interpersonal relationships that could be described as close and warm and is very uncomfortable in social situations. She further reports being emotionally labile, with fairly rapid and extreme mood swings. Her self-concept was described as generally harsh and negative.”

49These are exactly the factors reported by Dr. Pilowsky and others. Unlike Dr. Pilowsky, however, Dr. Jovanovski concluded there was no valid objective evidence of psychological impairment due to the invalid test results obtained, and so she could not verify the presence or extent of the applicant’s reported cognitive or psychological complaints, nor could she provide a diagnosis.²³

50In this particular case, I prefer the evidence of Dr. Pilowsky over that of Dr. Jovanovski. Dr. Jovanovski concluded that the applicant did not meet the NEB test because the applicant did not have a cognitive or psychological impairment, no diagnosis could be formed, and the applicant was not credible. However, I find Dr. Jovanovski arrived at her conclusions without taking into account anything the applicant actually said to her, or any of the many reports noting her complaints of pain and psychological distress which, at the time she examined the applicant, had been consistent for the two years since the accident. I am not satisfied that simply relying on the results of a battery of tests tells the whole story in cases where persistent pain is an issue. Dr. Pilowsky saw the applicant for over a year on a regular basis, listening to what she had to say about her life; as such, I find she was in a better position to understand the larger context of the applicant’s life than was Dr. Jovanovski. As a practising psychologist, I find it was well within Dr. Pilowsky’s professional competency and clinical judgment, as well as reasonable in this case, for her to provide particular diagnoses for the applicant’s psychological condition and to understand its impact on her life without necessarily relying on the same number of tests as Dr. Jovanovski.

51I note that Dr. Michelle Keightley, a psychologist who assessed the applicant as part of a multidisciplinary assessment to determine catastrophic impairment in June, 2017 also administered the PAI and found that the test results indicated the applicant responded appropriately and consistently. Although there was evidence the applicant attempted to portray herself in an especially negative manner, Dr. Keightley opined that this can reflect a “cry for help” or desire for the extent of her suffering to be sufficiently communicated to the assessor.”²⁴I find this interpretation is reasonable in the applicant’s circumstances. Dr. Keightley also administered tests that showed that the applicant reported “kinesiophobia, or fear of movement related to feeling vulnerable to sustaining a painful injury or further harm,” and maladaptive pain coping.²⁵These results are consistent with the findings of Dr. Pilowsky.

52Although Dr. Jovanovski conceded that the test results showed the applicant had an exaggerated negative and harsh self-concept and that one way to interpret the test results was that they could indicate a “cry for help,” she appears to have rejected that particular interpretation. However, I find that interpretation accords with the applicant’s self-report to most assessors, and is the most accurate. The applicant has gone from a slim, 125 pound active, outgoing teenager with a well-rounded life despite real obstacles, to, as a result of the accident, an anxious, depressed, isolated, overweight 165 pound young woman with a very poor self-image who avoids most activity, including social activity, because it is painful. She is unmotivated to care for her appearance, has tried and failed to return to school, is at odds with her family due to a changed disposition, and is cut off from her friends by overprotective parents. I agree with Dr. Pilowsky, that the applicant is simply unable to cope emotionally with the drastic changes pain has made to her life. I find it reasonable in these circumstances that her test responses would be more likely to indicate a “cry for help” than outright malingering.

Surveillance:

53Certas submitted a surveillance report dated August 5, 2016 and a 19 minutes of video footage. I have reviewed the report and the videotape, which shows the applicant, casually dressed in sweat pants, a plaid shirt and flip-flops riding in a vehicle driven by her mother, getting in and out of the car, yawning, standing briefly while leaning on another vehicle at their destination, shifting position, walking a few feet, and slowly walking three steps up to her house, beginning by putting one foot then the other on the first step before taking the next step. I find nothing in the report or the video footage that contradicts or is inconsistent with any of the applicant’s evidence; rather, that it tends to show the applicant does not move quite as easily one would expect of a young woman her age. I note that this evidence does not appear to have been reviewed by any of Certas’ assessors. I see nothing in this surveillance evidence that would lead me to question the applicant’s credibility.

Conclusion: the applicant is entitled to an NEB:

54I find that, on a balance of probabilities, the whole of the evidence before me supports that the applicant is practically prevented from engaging in almost all daily pre-accident activities due to a combination of persistent pain and the inability to cope with it, as well as resulting psychological distress in the form of depression, anxiety and elements of PTSD. I do not find Certas’ strict reliance on “objective indicia” obtained from psychological testing to the exclusion of the applicant’s subjective reports to be convincing in this case, and the fact that Certas never had the applicant assessed by a psychologist or psychiatrist,²⁶ in the face of evidence of psychological distress and despite paying for psychological treatment, considerably weakens its position. Accordingly, the applicant is entitled to an NEB of $185 per week from December 31, 2016 and ongoing.

Entitlement to Attendant Care Benefits (ACBs) within the first two years after the accident:

55Under the Schedule, an insured person may be entitled to ACBs up to a maximum rate of $3,000 per month for the first 104 weeks after an accident if they can establish that the attendant care services are reasonable and necessary because of the accident.²⁷If the person who provided attendant care services is a family member, as opposed to a professional service provider, the benefit payable is limited to the economic loss incurred by the family member.²⁸This is regardless of the amount or level of care determined to be necessary by a health care provider and outlined in an Assessment of Attendant Care Needs “Form 1.”

56Form 1’s prepared on behalf of the parties differ dramatically as to the attendant care services determined to be reasonable and necessary, as illustrated in the following chart:

Date	Prepared by	Monthly Amount	Assessor
January 23, 2015	Applicant	$8,182.20	L. Okell, OT
February 5, 2015	Applicant	$7,499.30	M. Elma, OT
October 21, 2015	Respondent	$815.32	M. Robbins, OT
October 29, 2015	Applicant	$3,103.55	M. Elma, OT
May 4, 2016	Respondent	$ 628.70	M. Robbins, OT
June 21, 2016	Applicant	$2,978.12	M. Elma, OT
December 23, 2016	Respondent	$0.00	M. Robbins, OT
July 18, 2017	Applicant	$6,200.30	J. Kang, OT

57The applicant submits that attendant care was provided by her mother, SDS, and that SDS lost her job as a result. SDS’ Record of Employment confirms SDS was dismissed during her probationary period due to her absence from work. Certas submits it calculated SDS’ incurred losses at $503.02 per month based on information about her 2014 income provided by the applicant,²⁹and paid ACBs at that rate. The applicant did not provide any additional evidence in this proceeding to prove economic loss that exceeds the amounts calculated and paid by Certas, as required under s.19(3)4 of the Schedule. Nor did she submit any argument to support her claim or refute Certas’ calculations. Accordingly I find ACB’s claimed up to 104 weeks of the accident are limited to $503.02 per month as per s. 3(7)(e)(iii)(B) of the Schedule.

Entitlement to Attendant Care Benefits (ACBs) after 104 weeks:

58After 104 weeks, an insured person may be entitled to reasonable and necessary attendant care up to a maximum of $6,000 per month if the person is found to have suffered a catastrophic impairment because of the accident,³⁰subject to the incurred losses requirement under s.3(7)(e)(iii)(B).

59Certas submits the applicant’s claim for ACB’s at the catastrophic level is premature because the applicant has not been deemed to be catastrophic. However, the applicant has applied to Certas for a determination that she is catastrophically impaired, and this is pending. Recent LAT case law holds that applicants must dispute an insurer’s refusal to pay ACB’s within the statutory two-year time limit or risk foregoing their right to claim ACB’s at the higher level if they are later deemed to have suffered a catastrophic impairment.³¹It is the insurer’s denial of the specific benefit that triggers the time limit. In this case, Certas denied ACBs in an Explanation of Benefits dated December 24, 2016.³²I find the applicant must dispute the denial of ACBs within the two-year time limit pending a determination of whether her impairments meet the catastrophic threshold, or risk losing the right to claim ongoing ACBs at the higher level should she later meet the catastrophic impairment threshold. Although the two- year time limit to dispute Certas’ denial of the benefit does not expire until December 2018, the applicant has chosen to dispute the denial in this proceeding. Both parties tendered evidence and submissions on this issue.

60Accordingly, I must determine the amount of attendant care the applicant requires as at December 24, 2016, based on the Form 1’s prepared by the parties and the evidence before me.

Amount of attendant care required as at December 24, 2016:

61I have concluded that if the applicant is determined to have suffered a catastrophic impairment, she will be entitled to attendant care of $1,273.92 per month from December 24, 2016.

62Form 1’s outline three different types of personal care that qualify for attendant care benefits, referred to as levels. The levels are differentiated by the skill required to perform the care and each has a different hourly rate. The care activities are measured in minutes per day. Basically, Level 1 describes routine personal care such as help with dressing, grooming and feeding. Level 2 is for basic supervisory functions such as hygiene and self-sufficiency in emergency situations. Level 3 is for complex hygiene/health care functions and assisting with prescribed exercise programmes.

63To understand how and why the parties’ Form 1’s differ so dramatically and to determine which more accurately describe the applicant’s need for attendant care, I compared competing Form 1’s that were prepared close to each other in time to see where the specific differences lay:

• Applicant, October 29, 2015 ($3,103.55) vs. Respondent October 21, 2015 ($815.32).

• Applicant, June 21, 2016 ($2,978.12) vs. Respondent, May 4, 2016 ($628.70);

• I then considered the applicant’s July 18, 2017 Form 1 claiming monthly ACBs of $6,200.30, and compared it to Certas’ December 2016 Form 1 stating no further attendant care was required. I also reviewed the assessment reports supporting the Form 1’s.

Based on this evidence, I make the following findings:

The October 2015 Form 1’s: $815.32 (Ms. Robbins, for the applicant) vs. $3,103.55 (Ms. Elma, for the respondent): The correct amount is $1,252.40.

64Ms. Robbins, the applicant’s OT, and Ms. Elma, the Respondent’s OT, mostly agreed on the amount of Level 1 care required for food preparation. However, Ms. Robbins did not include any help with grooming (hair and toenails), or dressing and undressing the upper and lower body, whereas Ms. Elma allotted time for daily dressing and hair care, and weekly shaving and toenail care. Given the documented evidence of the applicant’s limited shoulder, back and reaching to ground mobility, and that she has long hair, I find the amount of Level 1 care allotted by Ms. Elma to be necessary, and more reasonable.

65Regarding Level 2 care, the Form 1’s are similar except that Ms. Elma allotted 2,520 minutes, or 6 hours a day, 7 days a week, for basic supervisory care on the basis that the applicant lacked the ability to be self-sufficient in an emergency (exit/enter house in a timely manner) due to her limited shoulder and back movements, reduced strength/tolerance, pain and discomfort.³³ Ms. Robbins allotted 0 minutes. Ms. Elma described the applicant as able to get in and out of bed and the bathtub independently, able to walk and manage stairs, and slept poorly at night. Furthermore, in her July 2017 Form 1 report, Ms. Kang, OT, noted she used a stopwatch to determine that the applicant could go from lying in bed to out the door of her home in 2 minutes and 15 seconds. For these reasons, I find the applicant is well able to react and leave the house in an emergency, she is not unsafe in her own home, and 6 hours a day of supervisory care is neither necessary nor reasonable.

66Regarding Level 3 care (complex hygiene), Ms. Elma included time for daily bathing and drying the applicant, whereas Ms. Robbins only allowed for transfers to tub and shower, three times a week. I find the applicant required help showering and drying off. Bathing and grooming are highly personal activities. As the applicant expressed a preference for daily bathing/showering and hair washing as opposed to just three days a week, I find those are legitimate, necessary and reasonable care activities, and I prefer Ms. Elma’s assessment.

672,520 minutes for basic supervisory care equates to $1,851.15 per month. As I do not find this amount of care necessary or reasonable for the reasons above, I have subtracted it from the from the $3,103.55 total assessed by Ms. Elma. This leaves $1,252.40 per month, which is the amount of care I find was reasonable and necessary in October 2015.

The May and June 2016 Form 1’s: $628.70 (Ms. Robbins, for the respondent) vs. $2,978.12 (Ms. Elma, for the applicant): The correct amount is $1,126.97.

68The differences between Ms. Robbins Form 1 at $628.70 and Ms. Elma’s at $2,978.12 are similar to the differences between their October 2015 Form 1’s. Ms. Elma again included 2520 minutes a month, or 6 hours a day, for supervisory care, but this time not just for supervision in an emergency, but to ensure comfort, safety and emotional support when the applicant was in pain. What time of day or night this care should take place was not specified. I disagree that it is necessary or reasonable for the same reasons as above. Furthermore, the applicant is already under the care of a psychologist and receives treatment, and there is no opinion or report from a psychologist or psychiatrist recommending additional in-home emotional support six hours a day, seven days a week. Accordingly, I find it unnecessary and unreasonable.

69I find $1,126.97 per month ($2,978.12 less $1,851.15 for 2520 for supervisory care) was a necessary and reasonable amount of attendant care as of June 2016.

Attendant care required as of December 24, 2016: The December 2016 Form 1: $0 (Ms. Robbins for the respondent) and the July 2017 Form 1: $6,200.30 (Ms. Kang for the applicant): The correct amount is $1,273.92.

70Ms. Robbins based her opinion that the applicant no longer required attendant care as of December 2016 on her assessment of the applicant’s functional capabilities and the opinions of Certas’ IE assessors, Drs. Gharsaa, Muhlstock and Jovanovski, that there were no restrictions to light activity. I find that the applicant’s worsening depression and lack of motivation impacted her ability for self-care to a certain extent, and Ms. Robbins did not take this into account. Another factor is that, as remarked by Ms. Robbins and Ms. Elma, the applicant had not had the benefit of OT intervention to educate her about practical strategies for managing painful activities. For these reasons, I prefer the opinion of Ms. Kang, the OT who completed the July 2017 Form 1, that some attendant care was still necessary and reasonable as of December 2016.

71The amounts for Level 1 care - help to prepare meals, dress and undress and wash and style hair - are necessary and reasonable given the applicant’s physical condition, fatigue levels, and emotional well-being, and are consistent with past recommendations.

72Much of the remaining $6,200.30 per month Ms. Kang recommends is excessive, unnecessary and unreasonable.

73840 minutes a week (2 hours a day, 7 days a week) of Level 1 care listed under “Mobility (location change)” to provide motivation and assistance with outdoor mobility is not a necessary or reasonable attendant care expense. Ms. Kang reports that the applicant drives herself to physiotherapy, pain clinic or psychology appointments 3 – 4 times a week, but does not like to go alone and needs someone to help her walk from where she parks to the offices, due to pain and anxiety symptoms.³⁴ This is based on Ms. Kang’s observations that the applicant “moves cautiously about the house.” I note, however, that the applicant does not require any mobility aids and has never reported any falls. Ms. Kang further explains that the applicant’s younger sister took the applicant to a hair salon for a haircut and eyelash extensions, and notes that ³⁵ this type of outing improved the applicant’s pain, mood and anxiety and she should receive support to go outside on a daily basis for those reasons. I find Ms. Kang’s recommendations well outside the scope of the “Mobility – location change” category under Level 1 and not necessary or reasonable based on the evidence.

74Regarding Level 2 attendant care (basic supervisory functions), Ms. Kang has included 70 minutes a week for cleaning the applicant’s bedroom and changing the bed. These activities were never included in any previous Form 1’s. In any event, I find they are more properly housekeeping tasks. Housekeeping and home maintenance expenses are a separate benefit covered under s. 23 of the Schedule.

75Ms. Kang has also included 1260 minutes a week (3 hours a day, 7 days a week) under the Level 2 heading “ensures comfort, safety and security in this [i.e. the bedroom] environment,” for emotional support to be provided by a Personal Support Worker, without which the applicant “would be at even greater risk for emotional decompensation. For example, her suicidal ideation could worsen, and intent could become active.” There is no psychological or psychiatric evaluation, recommendation or report to support this opinion. Furthermore, “comfort, safety and security” in the bedroom falls under the Level 2 category “hygiene,” and is paid at the lowest hourly wage of the three levels. I find this incompatible with the risk suggested by Ms. Kang – a risk that is not only speculative, but unsupported by expert opinion. In any event, Ms. Kang’s reference to Ontario Society of Occupational Therapists’ guidelines³⁶ reveals that supervisory assistance under this heading applies in a hospital environment. I was provided with no evidence or argument to support the proposition that it applies in a home environment. I do not find this recommendation either necessary or reasonable in the applicant’s circumstances.

76I reject Ms. Kang’s recommendation of 3780 minutes a week (9 hours every night, 7 days a week) under the Level 2 heading “applicant lacks ability to respond to an emergency or needs custodial care due to changes in behaviour” for the same reasons as for Ms. Elma’s June 2016 Form 1, above. Ms. Kang’s report supporting this Form 1 indicates the applicant is capable of independent transfers from bed and bath to standing, and it is in this report that she documented the applicant’s ability to arise from bed and leave the home in 2 minutes and 15 seconds, less that the 3 minute safe escape time recommended by the National Research Council of Canada.³⁷ This level of care is not necessary or reasonable.

77For the reasons above, Ms. Kang’s Form 1 for $6,200.30 should be reduced by $898 for Level 1 care and $4,028.38 for Level 2 care. The remaining amount, $1,273.92, represents attendant care that is necessary and reasonable as a result of the accident.

Conclusion: the applicant is entitled to ACBs

78For the first 104 weeks after the accident, the applicant’s ACB is limited to $503.02 per month, or the economic loss incurred by her mother, regardless of the amounts I have actually determined to be necessary and reasonable.

79As of 104 weeks after the accident, i.e. from January 15, 2017, the applicant would be entitled to ACBs of $1,273.92 if she were determined to be catastrophically impaired as a result of the accident.

Interest:

80The applicant is entitled to interest in accordance with the Schedule on the $19,378.46 Certas has agreed to pay for medical benefits up until the amount was paid, as well as interest on the NEBs owing.

Award under Regulation 664:

81The applicant claims an award under Section 10 of Regulation 664 (O. Reg. 43/16, s. 4), which reads as follows:

10. If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

82I find the applicant is entitled to an award because Certas delayed until the eve of the hearing to pay treatment and assessment expenses, but not for its denial of an NEB. It was not unreasonable for Certas to refuse to pay NEBs based on its interpretation of its IEs, even though I have determined that decision was wrong, and to have that dispute adjudicated by this Tribunal.

83Regarding the applicant’s fifteen claims for medical and rehabilitation benefits listed as items c) – q), the fact that Certas advised in its August 23, 2017 Respondent’s Written Submissions that it had reconsidered its position and paid almost all of the amounts claimed does not in this case permit it to avoid an award under s. 10. Half of these claims date from 2015, the year of the accident, and include claims for assistive devices and psychological treatment and assessments. I note that Certas’ own OT, M. Robbins, herself repeatedly recommended assistive devices, as well as OT assistance, and noted that they had not been provided. Given the applicant’s youth, the severity of her accident injuries, her unsettled family situation and the evidence of ongoing pain complaints and psychological symptoms, all of which Certas was or should have been aware of at the time, I find it was unreasonable for Certas not to pay for these items in the first place. That Certas has reconsidered its position and agreed to pay for these items suggests it sees the wisdom of this.

84The amount of the award must be reasonable taking into account all of the circumstances. The award is a sanction for a range of unreasonable behaviour, with the highest 50% award reserved for intransigent or egregious conduct on the part of an insurer. There is no evidence of that in this case. I find a modest award at the lower end of the scale, or 5 per cent, is appropriate.

85Regarding the amount to be paid, s.10 specifies a “lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable . .” I was not provided with information, such as interest owing on unpaid benefits that would permit me to calculate the amount of an award in accordance with the Schedule. This information is within the knowledge of the parties and I leave it to them to calculate the amount of the award, on the basis that the lump sum will be 5%; and “the amount to which the person was entitled at the time of the award” means $19,378.46 including interest up until that amount was paid.

Order:

1. Certas shall pay to the applicant an NEB of $185 per week from December 31, 2016 and ongoing, together with interest;

2. The applicant’s claims for ACBs in excess of amounts already paid from January 29, 2015 to January 15, 2017 are dismissed;

3. The amount of attendant care that is necessary and reasonable 104 weeks after the accident is $1,273.92 per month;

4. Certas shall pay to the applicant, if not already paid, interest on the $19,378.46 it has agreed to pay for medical, rehabilitation and assessment costs, together with interest from the time the amounts were payable;

5. Certas shall pay an award of 5% of the amount in item 2 under s.10 of Regulation 664, to be calculated by the parties in accordance with the Schedule.

Footnotes

1. 1The sacral ala is the top or wide part of the sacrum, the triangular bone that sits at the base of the spine, of which the coccyx or tailbone is the tip.
2. 2Further described as “lifting scalp off skull” in the January 16, Trauma Team Leader Consultation Note of Dr. D. A. Yee (Sunnybrook Hospital Records)
3. 3Report of Pradeep Alexander, orthopaedic surgeon, September 28, 2015, Applicant’s Submissions, Tab 10, p. 4.
4. 4In her Written Submissions for this hearing, the applicant claimed NEBs of $320 per week from 104 weeks after the accident under s. 12(3) of the Schedule, on the basis that she is entitled to this higher amount because she qualified for an NEB under s. 12(1) 2. As the respondent correctly points out in its Responding Submissions, however, to qualify for the $320 amount, the applicant must have either been enrolled on a full-time basis in secondary school, or have completed her education less than one year before the accident and been unemployed. As the applicant did not meet either requirement at the time of the accident, she does not qualify for an NEB of $320.
5. 5R.R.O. 1990, Regulation 664: Automobile Insurance, under Insurance Act, R.S.O. 1990, C.I.8
6. 6Regarding item j) $16,837.00 for a catastrophic assessment, I accept Certas’ submission that it partially approved $14,012; that the balance is not payable under s. 25 of the Schedule; and that $14,012 is a reasonable amount for a catastrophic assessment. There were no Reply submissions from the applicant on this item.
7. 7Heath v Economical Mutual Insurance Company 2009 ONCA 391, 2009 95 OR (3d) 785 (Heath).
8. 8Feb 25, 2015 OT in-home report
9. 9Clinical interview, Occupational Therapy Attendant Care Assessment, February 17, 2015, Applicant’s Submissions, Tab 6.
10. 10Report of the applicant’s treating psychologist, Dr. J. Pilowsky, August 31, 2015, p. 2. Applicant’s Submissions, Tab 9.
11. 11Report of Dr. D. Jovanovski, December 22, 2016, Insurer’s Responding Submissions, Tab 3.
12. 12Report of M. Robbins, November 2, 2015, Respondent’s Submissions, Tab 1.
13. 13Report of M. Robbins, at p. 25.
14. 14Report of M. Robbins, at p. 27.
15. 15Report of M. Robbins, December 22, 2016, Respondent’s Submissions, Tab 7, at pp. 25 and 26.
16. 16Report dated September 28, 2015, Applicant’s Submissions, Tab A10.
17. 17Insurer’s Orthopaedic Assessment Report of Dr. O. Gharsaa, December 22, 2016, Respondent’s Written Submissions, Tab 5.
18. 18At p. 8.
19. 19August 31, 2015 report at p. 10, Applicant’s Submissions Tab 9.
20. 20Ibid, p. 11.
21. 21July 19, 2016 report of Dr. Pilowsky, Applicant’s submissions, Tab 15.
22. 22p.16.
23. 23Pp 16 and 17.
24. 24Catastrophic Impairment Evaluation by OMEGA Medical Associates, Mental/Behavioural Evaluation Report, April 24, 2017, pp 16 & 17.
25. 25Tampa Scale for Kinesiophobia (TSK) and Pain Catastrophizing Scale (PCS), Dr. Keightley’s report at p. 10.
26. 26As opposed to a neuropsychologist.
27. 27S. 19(3) 1 ii.
28. 28S. 3(7)(e)(iii)(B).
29. 29Record of Employment, Menzies Aviation; 2014 T-4 slips, Alliance Employment; and Aerocare pay stubs, as set out in Certas’ June 6, 2015 letter to the applicant, Respondent’s Submissions, Tab 10.
30. 30S. 19(3) 1 ii.
31. 31S.T. and Economical Insurance Company, 16-003034/AABS, September 7, 2017, under reconsideration.
32. 32Applicant’s Written Submissions, Tab D1.
33. 33Occupational Therapy Reassessment of In-Home/Attendant Care Needs- Form 1, October 29, 2015, Applicant’s Submissions, Tab 12.
34. 34Occupational Therapy Initial Report: In-Home Functional Assessment, J. Kang, OT, July 18, 2017, p.21, Applicant’s Written Submissions, Tab 17.
35. 35Occupational Therapy Initial Report: In-Home Functional Assessment, J. Kang, OT, July 18, 2017. Applicant’s Written Submissions, Tab 17.
36. 36At p. 22 of her report tab 17.
37. 37As quoted by Ms. Kang in her report at p. 23.