K.S. v. TD Home and Auto Insurance Company, 2019 CanLII 22189

Licence Appeal Tribunal

Tribunal File Number: 18-000169/AABS

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

Between:

K.S.

Appellant

and

TD Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce

APPEARANCES

Counsel for the Applicant: Doug Wright Tricia McAvoy

Counsel for the Respondent: John Dean

In-Person Hearing: January 14-18 and 21-25, 2019

OVERVIEW

1The applicant, K.S., was injured on October 28, 2014 while riding his bicycle. He was struck by a passing motorcyclist and flung from his bike, landing on the pavement and splitting his head open. As a result of the accident, K.S. sustained physical injuries to his head, upper body, knees and a fractured neck. He also claims he sustained psychological injuries as a result of the accident which have resulted in concentration issues, irritability, anxiety, stress and depression, as well as uncontrollable and sometimes violent outbursts. Over time, his impairments have compounded and he argues that he is now catastrophically impaired (“CAT”) as a result of the accident. K.S. sought benefits from the respondent, TD Home and Auto Insurance (“TD”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”).

2TD paid numerous medical and rehabilitation benefits to K.S. up to the $50,000 limit for non-catastrophic impairments. After a series of multi-disciplinary Insurer’s Examinations (“IEs”), TD determined that K.S.’s impairments were not CAT and denied any treatment beyond the limits prescribed in the Schedule. TD also denied K.S.’s claim for Income Replacement Benefits (“IRBs”) on the basis that he did not have a substantial or complete inability to work in his pre-accident occupation. TD further denied K.S.’s claim for attendant care benefits (“ACBs”) and housekeeping on the basis that his service provider, his father W.S., did not suffer an economic loss and that neither benefit was available to K.S. 104 weeks after the accident unless he was deemed CAT. Lastly, TD denied 11 treatment plans covering various medical and rehabilitation strategies, on the basis that these benefits were not reasonable and necessary and that the limit for treatment had been exhausted.

3K.S. disagreed with TD’s CAT determination and its other denials and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution. A case conference was held but the parties were unable to come to a resolution and proceeded to an in-person hearing on the following issues.

ISSUES IN DISPUTE

4The following are the issues to be decided, as per the Case Conference Order dated September 6, 2018:

I. Did the applicant sustain a catastrophic impairment pursuant to the Schedule?

II. Is the applicant entitled to an income replacement benefit in the amount of $185.00 per week for the time period from October 28, 2014 to date and ongoing?

III. Is the applicant entitled to an attendant care benefit in the amount of $6,000.00 per month for the time period of October 28, 2014 to date and ongoing?

IV. Is the applicant entitled to a housekeeping and home maintenance benefit in the amount of $100.00 per week for the time period from October 28, 2014 to present and ongoing?

V. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,070.00 for occupational therapy services recommended in a treatment plan submitted on October 13, 2016, denied by the respondent on October 20, 2016?

VI. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $24,212.20 for assistive devices recommended in a treatment plan submitted on December 12, 2014, denied by the respondent on March 3, 2015?

VII. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,345.11 for physiotherapy services recommended in a treatment plan submitted on March 17, 2015, denied by the respondent on March 20, 2015?

VIII. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,902.48 for chiropractic services recommended in a treatment plan submitted on March 17, 2015, denied by the respondent on March 20, 2015?

IX. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,397.00 for occupational therapy services recommended in a treatment plan submitted on May 7, 2015, denied by the respondent on May 20, 2015?

X. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,541.60 for other goods and services of a medical nature recommended in a treatment plan submitted on February 24, 2015, denied by the respondent on May 25, 2015?

XI. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,215.29 for chiropractic services recommended in a treatment plan submitted on May 19, 2015, denied by the respondent on May 27, 2015?

XII. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,200.00 for other goods and services of a medical nature recommended in a treatment plan submitted on May 20, 2017, denied by the respondent on June 12, 2017?

XIII. Is the applicant entitled to payment in the amount of $617.46 for an orthopaedic mattress submitted on January 21, 2015, denied by the respondent on June 16, 2015?

XIV. Is the applicant entitled to interest on any overdue payments of benefits?

XV. Is the applicant entitled to an award under Ontario Regulation 664, R.R.O. 1990?

XVI. Is the applicant entitled to a medical benefit in the amount of $2,090.00 for medical marijuana submitted on April 9, 2018 denied by the respondent on April 13, 2018?

XVII. Is the applicant entitled to a medical benefit of $1,717.50 for personal training and gym membership, submitted on July 26, 2018 denied by the respondent on July 27, 2018?

SETTLEMENT

5At the close of the in-person hearing, the parties agreed to undertake settlement discussions pertaining to the medical and rehabilitation benefits in dispute, being issues (v) through (xiii) and issues (xvi) and (xvii), with the goal of narrowing the issues to be decided by the Tribunal. The parties notified the Tribunal that they were successful in their settlement discussions. Accordingly, while the Tribunal heard evidence on all of the issues, for the purposes of this hearing, the Tribunal was only left to determine issues (i) through (iv) and issues (xiv) and (xv).

RESULT

6I find that K.S. sustained a catastrophic impairment as a result of the accident.

7I find that K.S. is not entitled to a post-104 IRB as he does not suffer a complete inability to work in his pre-accident employment. While I find K.S. is entitled to an IRB for the post-accident period, no amount is payable. TD’s claim for repayment is denied.

8I find that K.S. is not entitled to ACBs or housekeeping for the period in dispute as he has not demonstrated that his service provider suffered an economic loss.

9I find that an award in this matter is not appropriate as TD did not unreasonably withhold or delay payment of benefits. Accordingly, as no benefits are overdue, no interest is payable.

ANALYSIS

Catastrophic Impairment

10In order to be determined CAT² under the Schedule, K.S. must prove, on a balance of probabilities, that the impairments he suffered as a result of the accident have resulted in at least one Class 4 (Marked) Impairment in any of the four domains outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment³ (the “Guides”) due to a mental or behavioural disorder. I find, on a balance of probabilities, that K.S. has sustained at least one Marked Impairment due to mental or behavioural disorders he sustained as a result of the accident. Accordingly, I find that he has sustained a catastrophic impairment as defined by the Schedule and is therefore entitled to the extended policy limits.

11The test for CAT impairment is a legal test, not a medical test.⁴ The five classes of impairment are identified on a continuum in Chapter 14 of the Guides, in ascending order of severity from Class 1 to Class 5, with language identifying the level of functioning at each class. For the purposes of this proceeding, the relevant classes—and the resulting disagreement between the parties—concern whether K.S.’s impairments fall within the Class 3 (Moderate Impairment) or Class 4 (Marked Impairment) designations. The difference between the classes is subtle, but critical: in Class 3, impairment levels are compatible with some, but not all, useful functioning. Meanwhile, Class 4 impairment levels significantly impede useful functioning. In order to determine which class K.S.’s impairments fall within, assessors assign a level of impairment to all four areas or aspects of functioning, which are called domains: activities of daily living (ADL), social functioning (SF), concentration, persistence and pain (CCP) and adaptation (AD).⁵ If K.S. is determined to have four Class 3 (Moderate) impairments, he does not receive a CAT designation. Under the Schedule, if it is determined that K.S. has one or more Class 4 (Marked) impairments in any domain, he receives a CAT designation⁶, and his limits for medical and rehabilitative treatment expand significantly.

12While the pain and physical impairments experienced by K.S. as a result of the accident were a focus of the hearing, I do not find that pain and, to a larger extent, K.S.’s physical impairments, are a significant contribution to his CAT designation. At the hearing, K.S. was able to sit for extended periods of time and move about freely. By most accounts, K.S. is capable of completing most, if not all, of his activities of daily living on his own accord. Surveillance evidence submitted during the hearing revealed a young man capable of going out into the community on his own, driving safely, looking over both shoulders with uninhibited range of motion, squatting and bending to fix his car door, using both hands to wield tools and grasp items, etc. In sum, on the evidence, I am not prepared to make K.S.’s physical impairments and pain a substantive factor in his CAT designation; I find K.S. has the physical capability to do many things. This is echoed in many reports and by K.S. himself.

13Indeed, a more significant portion of the hearing—and rightly so—was dedicated to K.S.’s emotional and psychological impairments that have arisen as a result of the accident. I agree with K.S.’s counsel that this was not a case where the parties were describing two different people, but rather, “arguing over the shades of grey between moderate and marked impairments.” In my view, K.S. sits atop an imaginary fence between the two classes, where it was entirely reasonable to argue that he may fall to either side. However, after ten days of evidence, I find that K.S. has a Marked Impairment in the Adaptation domain, enough to tip him over the fence into CAT. I find, for added clarity, that his psychological impairments form the sole basis for my determination that K.S.’s impairments are CAT. I find that K.S.’s lack of emotional and psychological regulation, which has resulted in irregular moods and behaviour, as well as private and public outbursts, can be traced directly to the traumatic brain injury he suffered as a result of the accident and the trauma and stress that ensued.

14During the hearing, K.S. called psychologist Dr. Pillai and his two treating OT assessors, Ms. Diaz and Ms. Sinclair. I found all three witnesses credible and reasonable in their assessments of K.S. All three witnesses had the opportunity to interact with K.S. over a period of four years post-accident, which, in my view, forms an appropriate sample size to accurately gauge K.S.’s complaints, progress and prognosis over time. All three witnesses reported substantively similar symptoms in K.S. that are confirmed throughout the other documentation filed in this matter: anxiety, irritability, agitation, mood swings, anhedonia, depression, a lack of interest, feelings of worthlessness and, specific to Dr. Pillai’s case: a no suicide pact.⁷ On review of all the reports in evidence, these symptoms appear consistently across both time and medical specialization. Further, the reports of these symptoms begin to appear following the subject accident and increase thereafter, which provides further support, in my view, that K.S.’s psychological issues arose post-accident.

15The most telling example of K.S.’s irregular emotional and social behaviour came from the reporting of Ms. Munir, the OT who completed a s.44 IE on behalf of TD. The assessment took place over two days, the first day involving a community assessment and the second featuring an in-home component. On day one, K.S. was able to take direction and complete tasks at a local shopping mall without issue. While he struggled to complete some of the tasks on the list, the assessment was completed validly and without issue. On day two, the report and testimony of Ms. Munir revealed that K.S. acted inappropriately without reasonable explanation. The Report indicates K.S. showed “verbal and physical aggression (He endorsed actions of ‘shouting, swearing, breaking, throwing, and slashing.’ He reported, ‘I’m a pretty f***** up guy because I feel left out and I tell doctors’).”⁸ At the close of the interview, Ms. Munir testified that K.S. was pleasant and cordial, as if nothing had happened. The takeaway supported by the rest of the file is that K.S.’s behaviour is unpredictable; he cannot seem to help himself when he has an outburst, but then he feels remorse. By all accounts, it is apparent that K.S. is not trying to put on this behaviour, he just simply cannot control himself. In many ways, I find this type of behaviours begs the question Dr. Levitt⁹ posed in his testimony and report, at least as it pertains to the difference between outbursts in private and in public: K.S. exhibits some evidence of functioning, but is it the type of useful function contemplated by the Guides? From a psychological perspective, I find that the evidence suggests that it is not.

16The testimony at the hearing revealed several more instances that provide illuminating examples of the type of unpredictability K.S.’s outbursts cause and, in my view, underscore how this unpredictability impedes his useful function. For example, W.S. described an incident where K.S. ordered a pizza that was not cut into slices on delivery. Instead of acting reasonably—and the reasonable man standard is the standard prescribed in the Guides—and cutting the pizza himself, K.S. proceeded to return to the restaurant to berate the employees for not slicing his pizza. On the day of Ms. Munir’s assessment, she reports K.S. “flipping out” when the smoke detector goes off. On a separate occasion, W.S. reports physically fighting on the front lawn with K.S. after one of K.S.’s things went missing. On another occasion, K.S. punches a hole in the kitchen wall. On yet another, K.S. follows a vehicle into a parking lot to confront the driver after being cut off. On another, K.S. admits to the verbal and physical abuse of his girlfriend. On their own, each of this instances may not constitute evidence of a psychological impairment necessitating a CAT designation. However, cumulatively, I find it difficult to reconcile how reporting these embarrassing, disproportionate—and in some cases, criminal—outbursts, would be beneficial to K.S. in any way. In my view, they represent cries for help and a need for continuing treatment in order to protect K.S. from himself, from his family and, potentially, the community.

17The Guides make it clear that a diagnosis of a specific psychological impairment is not required for CAT but that the focus is on function. Indeed, the doctors who testified during the hearing identified similar symptoms in K.S. but arrived at different diagnoses: Dr. Levitt believed it was quite obvious that K.S. has post-traumatic stress disorder; Dr. Wiseman, psychologist for TD, believed that K.S. had a relatively mild traumatic brain injury but was adamant that PTSD was not an accurate diagnosis; Dr. Feinstein, neuropsychiatrist for K.S., diagnosed K.S. with somatic symptom disorder, adjustment disorder and a mild neurocognitive disorder, but not PTSD; Dr. Bhalero diagnosed a mild neurocognitive disorder and a sleep disorder consistent with PTSD; Dr. Pillai and Dr. Masanic found features of PTSD and a major depressive disorder; Dr. Sunday diagnosed a mild to moderate brain injury. From these reports, I find two things.

18First, it is clear that brain injuries are difficult, if not impossible, to accurately diagnose, even with three thousand pages of medical evidence available. The adversarial nature of a hearing also clouds the objectivity of these diagnoses. It would be imprudent—and beyond the scope of my expertise—to identify a single diagnoses from the laundry list in this matter.

19Second, regardless of the diagnosis, I find it is clear that a psychological impairment is leading K.S. to act out and that this impedes his useful function. Further, I find that his post-outburst remorse is an indication that he cannot control his behaviours or underlying issues. I also believe K.S. has the capacity to understand and appreciate how inappropriate and problematic his outbursts are and that he genuinely wants to change. I note that during the in-person hearing, K.S. left the room during portions of testimony that were controversial or critical of his behaviour. At other times, his own admissions and the testimony of his father moved him to tears. In my view, and for the reasons above, I find this is evidence of a marked impairment in the adaptation domain. A single marked impairment in any domain necessitates a catastrophic determination, regardless of the diagnosis.

20While I need not make definitive findings for every domain, I also find it likely that K.S.’s marked impairment in the adaptation domain can affect his functioning in the social domain. On one hand, K.S. was pleasant and cooperative during most of the hearing and the reports of his ability to approach and interact with strangers during the community assessment were very positive. On the other, K.S.’s outbursts are irregular and unpredictable when he is forced to adapt to changing circumstances and stress. In social or group situations, this unpredictability would likely impede his ability to socialize and maintain positive relationships. And yet, I do not find that K.S. is hostile or uncooperative to the point where the “overall degree of interference,” as contemplated by the Guides, significantly impedes his work or social functioning.

21For completion, I found the evidence provided was not supportive of a marked impairment in the ADL and CPP domains. For instance, with regards to his ADL, I find that K.S. can complete his daily tasks by himself. By all accounts, he can shower, change his clothes, make light meals, drive himself around, play video games, etc. As indicated, I found the surveillance evidence to be a compelling indication that K.S. is functional in his daily activities and, while the daily activities observed were not particularly onerous, I find he can perform them with a quality of independence and effectiveness.

22With regards to the CPP domain, there was quite a bit of evidence and testimony provided by the assessors that K.S. functions well in this domain. The majority of assessors seemed to go out of their way to remark on how focused K.S. was in completing the self-testing during various IEs and how engaging he was during the interview stages. Objectively, I found K.S. to be quite attentive and focused during the hearing days he was in attendance. Further, while understandably emotional, he was able to remain focused during his lengthy testimony and, in my view, answered all of the questions posed to him without difficulty. In any event, K.S. conceded during the hearing that he likely does not suffer a marked impairment in this domain.

23Finally, I have no doubt that getting hit by a motorcycle while riding his bike constituted a traumatic event for K.S. and for his father, W.S., who arrived at the scene to find his son unconscious and covered in blood. I found their testimony to be credible and consistent. While I found the reports of K.S.’s outbursts and propensity for anger to be troubling, I am very encouraged by the evidence that the psychological treatment undertaken by K.S. with Dr. Pillai and others has helped to regulate and reduce K.S.’s outbursts and irregular behaviours. The designation of CAT will open up K.S.’s treatment limits to ensure that he receives regular psychological treatment in order to assist him in his recovery. I hope that, over time, it will also help him repair the relationships that his accident has strained.

24For these reasons and on a balance of probabilities, I find that K.S. suffered a catastrophic impairment as a result of the accident.

Income Replacement Benefits and Repayment Claim

25As a result of the accident, K.S. claims entitlement to an IRB for two periods of time: post-accident and up to 104 weeks, as well as post-104 weeks and ongoing. In order to receive an IRB, K.S. must meet two separate tests, outlined below. On the evidence, I find that K.S. is entitled to an IRB for the initial period up to 104 weeks, however payment is not due as a result of the IRB already being paid by TD. I find that K.S. is not entitled to an IRB for the post-104 week period.

Post-Accident and up to 104 weeks

26In order to receive payment under s. 5(1) of the Schedule for the initial period of time post-accident and up to 104 weeks, K.S. must prove that he was employed and that, as a result of the accident, he suffered a substantial inability to perform the essential tasks of his pre-accident employment. On the evidence, I find that K.S. would have had a substantial inability to perform the essential tasks of his pre-accident employment during this period.

27K.S. was 19 years old at the time of his accident and the lack of clarity in his employment history reflects his youth and inexperience. At the time of the accident and, as I understand it, K.S. earned income by selling scrap metal and parts, fixing bikes and volunteering as an apprentice mechanic. While the details surrounding his random occupations and income are rather vague, there was a general acceptance at the hearing that these activities comprised K.S.’s “employment” at the time of the accident. I note that there was enough information to satisfy TD to remit payment to K.S. for an IRB for this period.

28By all accounts, K.S. was confined to an Aspen collar and in considerable pain in the weeks and months post-accident. As a result, he had no range of motion in his neck and head and had a significant blind spot radius. He could not drive during this period of time. He could not lift or move heavy objects. He struggled to see anything below a certain point in his field of vision. Post-accident, he was struggling emotionally and psychologically. He was living in a hotel and being assisted by his father. These impairments, in my view, would clearly cause K.S. to have a substantial inability to perform the essential tasks of his employment, namely driving around digging for scrap metal or lying and kneeling to fix vehicles; his hampered field of vision and range of motion alone would constitute a significant danger to himself and others.

29However, while I find that K.S. is entitled to the IRB for this period, I also find that no payment from TD is due. K.S.’s claim for an IRB for this period is frustrated by a repayment claim from TD. As mentioned, the evidence provided indicates that TD paid K.S. an IRB in the amount of $13,142.60 up to February 10, 2017, with additional payments to February 24, 2017. TD argues that this payment was made in error and claims repayment, providing evidence of correspondence requesting same. Unfortunately, the adjuster who provided testimony at the hearing, Mr. Parikh, could not speak to the alleged error, as he was not the adjuster of record at the time the payment error was made.

30While TD argued that the IRB payment was “a simple mistake” because it has taken the position that K.S. was not entitled to the benefit, there was underwhelming evidence before the Tribunal of the internal decision-making that prompted the alleged overpayment. For example, on page 28 of the logs provided by TD, there is a note that a voicemail was left with K.S.’s counsel in March 2017 indicating overpayment of an IRB due to a s. 44 denial and demanding repayment. According to the respondent, the inference that should be drawn by this evidence is that the new adjuster on the file did not agree with the initial IRB entitlement. While that may be true, I still find that someone at TD determined during the life of the file that K.S. had a substantial inability to perform his pre-accident job duties—as I have here—and issued payment. I see no reason to accept this as error and depart from this initial decision on the evidence available.

31So, I find K.S. is entitled to an IRB for this initial period, but since TD has already paid the IRB in full, K.S. is not entitled to further payment. As a result, I also deny TD’s request for repayment and follow respondent counsel’s submission that it be called a wash.

Post-104 Weeks to date

32In order to receive payment under s. 6(2) for the post-104 week period, K.S. must prove that he has a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

33I find that K.S. does not meet the test for eligibility for an IRB post-104 weeks. As mentioned, I find that K.S. is now physically capable of doing many things and has been capable for some time. The surveillance evidence provided that he can drive safely, that he can look over both shoulders with uninhibited range of motion, he can squat and retrieve things, bend at his knees and waist and use both hands to wield tools. While his adaptation and social domain impairments may affect his ability to work in a group, as part of a team or with the public on a psychological basis, I find that his pre-accident employment consisted largely of solitary, independent physical activities: driving around looking for scrap metal, selling it, fixing bikes and cars on his own, etc. and I therefore see no reason why he could not successfully return to these pursuits on a part-time or graduated basis, as he did prior to the accident. While the parties focused on the absurd “ticket-taker” job suggestion in the vocational assessment, I still follow Ms. Billet’s opinion that there are no physical issues identified in the physiatry reports that would prevent K.S. from part-time work and none that would constitute a complete inability to engage in employment for which he is clearly suitable by training and experience. In fact, I find that a return to his pre-accident self-employment may even be beneficial to K.S., as he clearly enjoyed it and was good at it. To return to Dr. Levitt’s remarks: I find that K.S.’s physical function as it pertains to this type of employment is useful function.

34For these reasons, I find that K.S. is not entitled to an IRB for the post-104 week period to date.

Attendant Care Benefits

35In order to receive ACBs post-104 weeks after his accident, K.S. must be CAT and establish that the services provided by his father, W.S., were reasonable and necessary. Further, K.S. must establish that the expenses were incurred, pursuant to s. 19(1)(a) of the Schedule. Section 3(7)(e) identifies three components to prove that a service is incurred: 1) K.S. needs to have received the goods or services related to the expense; 2) K.S. has to have paid the expense or promised to pay the expense; and, 3) K.S.’s father, W.S., must have provided the services in the course of his employment, occupation, or profession or sustained an economic loss as a result of providing the services. While I have determined that K.S. is CAT, I find on the evidence that K.S. has failed to prove that the services were incurred and that W.S. sustained an economic loss. Further, on these facts, I do not find that the deemed incurred provision under s. 3(8) of the Schedule applies.

36On both K.S. and W.S.’s testimony, I find, on a balance of probabilities, that W.S. provided K.S. with attendant care during the first few days and weeks post-accident while father and son were residing in the hotel.¹⁰ Given K.S.’s injuries, I find that it would have been reasonable and necessary for W.S. to care for his son during this initial period of recovery while K.S. was in an Aspen collar and in considerable pain. By all accounts, I am prepared to accept that K.S. would have received attendant care from his father during this time in the form of emotional support and physical assistance, helping to allot his medication and providing meals. However, on the evidence provided, the attendant care provided by W.S. to K.S. after this period and to date—identified as cuing and prompting, scheduling and taking K.S. to medical appointments, while also being present to “calm K.S. down”—cannot be justified as reasonable or necessary in the years post-accident. As mentioned, I find K.S. has the physical capability to do many things and that keeping K.S. calm or on schedule is not the type of post-104 attendant care contemplated by the Schedule.

37In any event, I find the third component of the incurred definition fatal to K.S.’s entitlement anyways, as I find that W.S. did not suffer an economic loss while caring for his son during the period that followed their stay in the hotel and to date. On both K.S. and W.S.’s testimony, it was revealed that at the time of the accident and during the attendant care period, W.S. was not employed but was recovering from a knee injury suffered at work in August 2014. Further testimony revealed that W.S. intended to return to work in December 2014 but was unable to as a result of K.S.’s accident. As of the date of the in-person hearing, W.S. had yet to return to work in any capacity and revealed on cross-examination that he is receiving CPP disability and an IRB from TD, owing to his own psychological and emotional difficulties stemming from K.S.’s accident.

38With respect, I find K.S.’s claim that his father was unable to return to work because he was forced to provide K.S. with attendant care to be somewhat tenuous. W.S. did provide a letter from his employer indicating that he had taken a three week, unpaid leave in December 2014 following K.S.’s accident, which prompted TD to approve ACBs up to $3,000.00 per month—the non-CAT limit—subject to ongoing proof of economic loss. TD paid ACBs to K.S. based on this letter, which encompassed the three week period of leave by W.S. immediately following K.S.’s accident. TD did not receive any further claims for ACBs until one year later, and these claims were not accompanied by proof of economic loss.

39Instead, as was revealed during testimony, W.S. acknowledged that he had not returned to work as a result of his own psychological impairment from K.S.’s accident and that at the time of the accident, W.S. was not working due to his own knee injury. On this basis, I find that W.S.’s loss is not because of his role as service provider but because of his own impairments and that his disability does not equate to an economic loss for purposes of attendant care under the Schedule. I note that the onus to prove entitlement lies with K.S. and, without further evidence, I find that W.S. has not proven that he sustained an economic loss as a service provider for his son, with the exception of the first two months post-accident which have already been paid by TD. Therefore, I find that the attendant care is not incurred.

40In closing submissions, K.S. argued that the deemed incurred provision under s. 3(8) of the Schedule applies. I disagree. I find no evidence that TD unreasonably withheld or delayed the payment of an ACB to K.S. that prevented the benefit from being incurred. Accordingly, I decline to deem the expense incurred. As a result, I find that K.S. is not entitled to payment for ACBs.

Housekeeping and Home Maintenance

41While I have determined that K.S. is CAT impaired, I find on the evidence that K.S. is not entitled to payment in the amount of $100.00 per week for housekeeping and home maintenance, as it is not reasonable and necessary.

42Section 23 of the Schedule limits payment of housekeeping and home maintenance to persons who are determined to be CAT impaired. In order for K.S. to receive payment for housekeeping and home maintenance, he must be CAT and also prove that the benefit is reasonable and necessary, pursuant to ss. 14-17 of the Schedule.

43I make largely similar findings for housekeeping and home maintenance that I have for ACBs, above. K.S. makes only one claim for this benefit for the period May 28, 2017 to Nov 28, 2018, on the basis that his father, W.S., was completing the housework during this time. While I have found K.S.’s impairments are CAT on the basis of his psychological impairments, the period of time contemplated by the OCF-6 is nearly four years removed from the accident, when K.S. no longer had the same physical restrictions he did post-accident. By all accounts, K.S. was mobile and helping with household chores by this time. In the OT Report of Ms. Munir, K.S. self-reports that he had resumed much of the housekeeping he did pre-accident. The surveillance evidence from 2018 revealed an agile young man capable of vehicle repairs. I do not find that the evidence suggests that W.S. was forced into extra housework as a result of K.S.’s inability to contribute. In addition, I find that W.S. has not provided proof of an economic loss during this period of time to support the reasonable payment of this benefit.

44On this basis, I find K.S. is not entitled to the housekeeping and home maintenance benefit as it is not reasonable and necessary, despite his CAT designation.

Award

45K.S. argues that an award under s. 10 of O. Reg. 664 is justified as a result of TD’s failure to exchange or request all pertinent data and documentation, its unreasonable withholding of benefits and a failure to provide a representative at the hearing who could speak to its adjusting practices during relevant periods. Under s. 10, the Tribunal may issue an award of up to 50 per cent of the amount to which K.S. is entitled if the Tribunal finds that TD has unreasonably withheld or delayed payments as a result of its conduct. On the facts and evidence before me, I find that an award is not appropriate.

46First, K.S. argues that TD’s IE assessors did not make proper findings on CAT entitlement as a result of not having all of the raw data or reports available and not providing same. I disagree and find that there is no evidence before the Tribunal that the omission of the extra documents or raw test data in any way affected the opinions rendered in this matter, on either side.

47Second, TD was ordered to produce the complete accident benefits file and all of its adjuster’s log notes related to K.S.’s claim. In addition, it agreed to provide an adjuster who could speak to the handling of K.S.’s claim over the life of the file. For the in-person hearing and on consent, TD produced Mr. Parikh, who was the adjuster for the majority of the life of the file, although not the most recent adjuster. While Mr. Parikh was able to provide context for many of the decisions made on the file, there were certain blind spots he could not speak to that, according to K.S.’s counsel, frustrated K.S.’s presentation of his case and resulted in benefits unreasonably withheld. I disagree. Other than this assertion, I find that there is no evidence before the Tribunal that TD’s choice of adjuster was made in bad faith or that a different adjuster would provide evidence that it unreasonably withheld or delayed payments of benefits.

48Accordingly, I find K.S. is not entitled to an award under s. 10 of O. Reg. 664.

Interest

49As indicated, the parties were able to arrive at a settlement regarding the medical and rehabilitation benefits in dispute. As no benefits are payable as a result of this decision, it follows that no interest is payable under s. 51.

CONCLUSION

50For these reasons, I find K.S. sustained a catastrophic impairment as a result of the accident and is entitled to the expanded policy limits that accompany such a designation.

51I find that K.S. is not entitled to payment for his claims for attendant care, housekeeping, the income replacement benefit or an award. As no benefits are overdue, no interest is payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2Defined in s. 3(2)(f) of the Schedule as a marked (Class 4), or extreme (Class 5) psychological impairment that affects useful function in any one of the four functional domains. “Impairment” is defined in s. 3 of the Schedule as “a loss or abnormality of a psychological or anatomical structure or function.”
3. 3Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993, at Ch. 14. [“Criterion 8”]
4. 4Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571, at para 30.
5. 5Guides, at s. 14.3, pg. 294. The full domain name for “Adaptation” is actually: “Deterioration or decompensation in work or work like settings.”
6. 6Pastore v. Aviva Canada Inc., 2012 ONCA 642, at para. 43.
7. 7K.S. also provided reports from Dr. Masanic (St. Michael’s Hospital Brain Injury Clinic), Dr. Bhalero (St. Michael’s Hospital Brain Injury Clinic) and Dr. Sunday (Neuropsychiatric). These reports echoed many of the symptoms outlined by the three witnesses who testified at the hearing.
8. 8Report of Ms. Munir, at 62; Respondent’s Hearing Brief, at 259.
9. 9Dr. Levitt, psychologist, completed the CAT assessment and report and also testified during the hearing.
10. 10Evidence indicated that K.S. and W.S. went straight to a hotel following K.S.’s three-day hospitalization from the accident due to the fact that the bathroom at the family home next to K.S.’s bedroom was under renovation. Further, at the time K.S. was released from hospital, the family home was not yet fitted with the railings and assistive devices approved by TD. Accordingly, K.S. and W.S. resided in a Mississauga hotel for several weeks following the accident. Payment for the hotel stay was approved and paid for by TD and is not at issue in this proceeding.