J.M. v. Wawanesa Mutual Insurance Company, 2019 CanLII 76963

Citation: J.M. vs. Wawanesa Mutual Insurance Company, 2019 ONLAT 18-006148/AABS

Date: July 15, 2019

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:

J.M.

Applicant

And

Wawanesa Mutual Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Chloe Lester, Vice-Chair

APPEARANCES:

Counsel for the Applicant: Jillian Carrington, Counsel

Counsel for the Respondent: Darrell March, Counsel

Court Reporters: Michelle Huong and Adam Kennedy

Hearing Dates: April 8, May 1, and May 3, 2019

OVERVIEW

1The applicant, JM, was injured as a passenger in a car accident on April 21, 2015 when their car was hit by another car trying to avoid being hit by a taxicab.¹ The car accident is considered minor and resulted in very little damage. That being said, the applicant sustained injuries from the car accident. She applied for and received medical and rehabilitation benefits from Wawanesa, the respondent, pursuant to the Schedule². Over time, the applicant’s injuries worsened, and she was deemed catastrophically impaired by the respondent in the spring of 2018.³

2The applicant submitted an Assessment for Attendant Care Needs (Form 1) to the respondent claiming entitlement to an attendant care benefit in the amount of $8,467.65 per month from July 5, 2018 to date and ongoing with interest.⁴

3The respondent conducted its own assessment and determined the applicant was only entitled to $1,583.45 per month in attendant care benefits.

4The applicant also requested payment for medical cannabis for treatment of her injuries with interest. The respondent denied the request for benefits on the basis that it was not reasonable and necessary.

5The applicant filed an application to the Tribunal⁵ for dispute resolution.

6The applicant claims that despite her pre-existing conditions, she was a fully-abled and functioning individual. She was able to work, take care of her disabled husband and complete her household responsibilities. The applicant claims her accident related injuries decreased her self-worth and her abilities to take care of herself and her family. The bulk of the attendant care funding arises from a need for 24-hour supervision for her psychological impairments. The applicant claims entitlement to medical benefits for cannabis to treat her injuries. She claims that not only was the prescription recommended by her treating practitioners, but it has relieved symptoms and eliminated ineffective medication.

7The respondent claims that documentation and consistency will be crucial in the applicant proving her case. It contends that what the applicant stated to medical assessors was not consistent. Also, her ability to work after the accident, begin a workplace grievance, human rights dispute, and her interest in going back to work, proves that she does not need attendant care. The respondent claims that just because she has a catastrophic impairment it does not entitle the applicant to the benefits. She needs to prove her onus.

8Since the applicant suffered from pre-existing injuries, the Tribunal must determine whether the request for benefits relates to the injuries sustained from the car accident and whether they are reasonable and necessary.

RESULT

9I find the applicant is entitled to the applicant’s Form 1 - attendant care benefits up to the maximum benefit of $6,000 per month, a medical benefit in the amount of $2,975.02 for medical cannabis, and interest.

Preliminary and Evidentiary Issues

10A few preliminary and evidentiary issues arose during the hearing that should be noted:

(i) Halfway through the hearing, the applicant sought to include in evidence the applicant’s Form 1 from 2016 and 2018. The respondent objected as these documents were not included in the applicant’s hearing brief. The applicant argued it was an oversight and the documents are relevant to the issues in dispute. The respondent objected stating that it was unaware the applicant was going to rely on it and was unable to question its witnesses regarding it. Further, the respondent was not prepared to ask questions for cross-examination.

(ii) After hearing the submissions of the parties, I allowed the Form 1 from 2018 into evidence. The document is relevant as it is the very document that gives rise to the claim for attendant care. The respondent had seen this document before and should have anticipated that it would be addressed during this hearing. To remedy any prejudice, I allowed the respondent an opportunity to prepare questions regarding the document for cross-examination and allowed it to re-examine any witness previously on the stand. I did not allow the applicant’s Form 1 from 2016 into evidence as the document is not relevant to the issues in dispute. The applicant’s needs were very different at that time and is not the subject of this hearing. Later in the hearing, the respondent sought to include their Form 1 as it was not included in the original hearing brief. The applicant’s counsel did not object and it was entered into evidence.

(iii) The respondent objected to allowing the applicant’s Form 1 and report in front of the occupational therapist during her in-chief testimony. The applicant argued it would be used as a memory aide. The respondent argued this is not allowed in an in-chief examination. I allowed the document to be used as a memory aide. Many of the documents relied on for the hearing were written more than 12 months ago. Therefore, it would be unreasonable to expect a witness to recall every detail of their report and there is no prejudice to the respondent. The respondent’s witnesses were also able to use the documents for a memory aide during their in-chief-examination.

(iv) The respondent also opposed the type of evidence the applicant’s witnesses could give because they were not qualified as expert witnesses. The respondent took the position that the applicant’s witnesses could not give opinion evidence because applicant’s counsel did not follow Rule 10 of the Licence Appeal Tribunal’s Rules of Practice and Procedure. The applicant’s counsel agreed the testimony would focus on the clinical notes and records (“CNRs”). That being said, the basis for my decision is largely reasoned based on medical records and not solely on the witnesses’ testimony; therefore, I do not find that the witnesses not being qualified as experts crucial in this decision.

BACKGROUND

11The applicant at the time of the car accident was a 55-year-old female who worked as a nurse at Humber River Hospital. At the time of the accident, she was on a workplace accommodation. She was the bread-winner because her husband is disabled. She was responsible for the household chores and meal preparation.⁶ She had numerous pre-existing injuries which include but are not limited to:

(i) depression,

(ii) diabetes,

(iii) fibromyalgia,

(iv) disc bulge, mild stenosis of the back, back pain, and

(v) hypercholesterolemia.⁷

12The applicant was on approximately 16 different types of medications, including Percocet, Naproxen and Oxyneo to manage her pain when she wasn’t working⁸, Cipralex for her depression, and Imovane for her sleep issues.

13The hospital records and the records from her family physician show that prior to the accident the applicant:

(i) was largely stable concerning her medications,

(ii) missed work on occasion because of her fibromyalgia,

(iii) had low back pain complaints with numbness down the leg,

(iv) had no issues with psychosis or suicide,

(v) had a lot of appointments unrelated to her conditions/injuries (example: bad cough/cold complaints)⁹,

(vi) significantly reduced range of motion in her lumbosacral spine and issues with her left shoulder, and

(vii) periodic episodes of depression causing issues with sleep, poor diet, forgetting to take medications, and diabetes.¹⁰

14Despite these pre-existing injuries and conditions, she was able to work and take care of her family responsibilities.¹¹

15After the accident and later that day the applicant attended a hospital and reported that she hit her head, and had pain in her head, right arm, right leg, and right eye. The applicant’s family doctor diagnosed her with neck strain, aggravated chronic low back pain, and contusion to the head.¹² The applicant was absent from work right after the accident. A few months later, she attempted to go back to work for a few weeks but could not continue, because as she reports, the accident caused a significant exacerbation of her pain and mood disturbance. Within 7 months after the accident, the respondent’s psychological assessor found compelling evidence that the accident caused a marked exacerbation of a pre-existing psychological condition that was previously treated and controlled. The applicant was also diagnosed with a driving related phobia. The psychological assessor described the applicant in a “fragile psychological state, suicidal thoughts, appreciably compromised functioning and deficient coping skills.¹³

16Over the following 2 years, the applicant’s psychological injuries significantly worsened, and she was assessed and met the definition of being catastrophically impaired. The applicant’s assessment for catastrophic determination found the applicant had a 71% Whole Person Impairment (“WPI”) – 5% for her cervical spine impairments and 65-69% for her psychological impairments.¹⁴ She was found to have a Class 4 marked impairment in all psychological spheres. The respondent conducted a catastrophic determination and agreed the applicant was catastrophically impaired. The respondent’s assessment found she sustained a Class 4 marked impairment in activities of daily living and adaptation.¹⁵

17By 2018, the applicant was taking upwards of 25 medications. Some medications had been trialed but discontinued after negative side effects and some of those medications were affecting her diabetes.¹⁶ The applicant has been consistently taking approximately 19 prescribed medications.¹⁷

The Applicant’s Credibility

18The respondent argues that despite its Form 1 that entitles the applicant to $1583.45 per month of attendant care, they no longer agree she should be entitled to that amount on the basis that the applicant is not credible because:

(i) She is inconsistent in her reports to the assessors and doctors,

(ii) Was able to work after the accident, begin a workplace grievance, human rights dispute, and had interest in going back to work,

(iii) The surveillance conducted by the respondent shows the applicant outside of her home,

(iv) She is inconsistent in her testimony. She was able to answer most questions in chief yet couldn’t remember details in cross-examination, and

(v) Her perceptions of her disabilities are different than reality.

19After a review of the evidence and the testimony at the hearing, I find the applicant credible.

20Although there are differences throughout the reports and assessments in what the applicant reports as her pre-existing conditions, medications she was taking, details of the accident and complaints after the accident, I find the overall evidence is consistent. The evidence shows she had pre-existing injuries/conditions, those conditions were exacerbated by the accident, and then she was deemed catastrophically impaired.

21Also, there is no expectation of perfection. It is impossible to expect that the applicant would report everything perfectly at every visit. It is expected that there would be good days and bad days regarding her symptomology. Also, what the applicant reports to a doctor or assessor may change depending on the discipline of the doctor she is seeing.

22The applicant is on significant medication that can affect her cognitive abilities. The applicant has reported on numerous occasions that she is having cognitive and memory issues.

23The respondent also argued that most of the applicant’s complaints are subjective and since she is not credible, her reports to her medical practitioners and assessors cannot be relied upon. I disagree. It is the job of a doctor to hear subjective complaints, conduct testing, if necessary, and come up with a diagnosis. The respondent’s psychological assessor was able to determine the applicant sustained accident related psychological issues despite his results that her psychological symptoms were not entirely supported by objective test findings, and that there was symptom embellishment. The same is true, in the respondent’s psychological assessment that determined the applicant was catastrophically impaired despite findings of malingering.¹⁸

24I find the applicant’s abilities to work after the accident, begin a workplace grievance, bring a human rights dispute, and the surveillance¹⁹ conducted by the respondent did not affect her credibility. From the time of the accident to the determination of being catastrophically impaired, the applicant’s accident related injuries/conditions had changed substantially.

25The respondent’s surveillance is not persuasive because the days the applicant is caught on video were before she was catastrophically impaired, and her abilities were different at that time in comparison to the time period being considered for this hearing.

26Also, there is no doubt that at times the applicant’s perceptions are different than her realities. Her current treating psychologist testified that at many visits she conveyed a willingness to return to work, yet he would not recommend it based on her psychological state.²⁰

27The applicant’s abilities were confirmed by her treating occupational therapist as being greater in the morning than in the afternoon.²¹ That explains the change in her symptomology and the perceived inconsistencies. I agree that inconsistencies may arise depending on the time of day she saw a doctor or assessor. Again, these minor inconsistencies do not affect her credibility.

28The respondent would also like me to derive an adverse inference from the fact that the applicant did not call her husband and family doctor to the stand. This did not affect her credibility. The best evidence regarding the applicant’s symptomology or the affect of her injuries comes from the applicant. Also, the applicant produced a substantial amount of records from her family doctor. If the respondent wished to cross-examine the family doctor or husband, then they could have requested to do so during the case conference. Adverse inferences are normally derived when a party has refused to comply with an order. This was not the case for this hearing.

Injuries sustained by the Applicant

29The following is not an exhaustive list of the applicant’s accident related injuries but ones that pertain to her request for medical cannabis and attendant care benefits at issue in this hearing.

30I find that the applicant has sustained the following accident related injuries:

(i) Soft tissue injuries that temporarily exacerbated her chronic back pain, neck strain and contusion to the head,²²

(ii) Perception of pain,²³

(iii) Persistent depressive disorder, with persistent major depressive disorder-severe, post traumatic stress disorder, panic disorder, relationship distress with spouse, high risk for safety as she expresses passive suicidal ideation, and compromised cognitive impairment functioning²⁴

(iv) At a minimum, a catastrophic impairment in a class 4 marked impairment in activities of daily living and adaptation,²⁵

(v) Headaches (despite reports that her dry eyes and meningioma are a possible contributing factor for her headaches, which I cannot conclude are because of the accident, the applicant immediately complained of headaches after the accident. Therefore, I find the accident is one reason for her constant headaches.)²⁶

(vi) Increased sleep issues which contributes as one of the reasons for her fatigue and lethargy.²⁷ Although there are reports of sleep issues pre-accident when her depression was uncontrolled and because of the narcotic medication, the medical records largely show she did not have sleep issues and the applicant had consistent sleep issues after the accident due to pain, PTSD, anxiety and psychological issues, most of which were accident related.

(vii) Xerostomia which may have caused dental caries in several teeth²⁸. This has also resulted in pain in her teeth and difficulty eating.²⁹

(viii) Mild traumatic brain injury³⁰

31I do not have enough evidence to conclude that her diabetes worsened after the accident. Although the case manager’s progress report summarized that her diabetes has worsened since the accident, her blood sugar levels have only marginally increased. The evidence is not clear whether that marginal increase makes a significant difference to her diabetes. Also, there is enough evidence to support that these issues existed pre-accident and the applicant had suboptimal diabetes control.³¹ That being said, her ability to control her diabetes is not a major factor in the applicant’s request for attendant care benefits.

32I do not have enough evidence to conclude that the applicant’s dizziness or history of falls are because of the accident. There is some evidence that she suffered from dizziness prior to the accident and I do not have enough information to conclude it was exacerbated. The case manager’s progress notes report that Dr. Mierzynski (optometrist) commented that her increased blurriness, dizziness and eye pain may not be because of a concussion. The significant dry eyes may be contributing to her headaches which is likely a result of diabetes and hormonal changes post menopause.³² There is evidence that the dizziness could be from taking Lyrica (a medication prescribed for an accident related illness) but the medication was prescribed after the applicant’s complaints of dizziness began and then was eventually discontinued with the use of medical cannabis.³³ Therefore, Lyrica cannot be the only factor contributing to the dizziness. The applicant claims she is constantly dizzy yet had been observed ambulating with steady/normal gait on three occasions when she was seen in a hospital. The applicant also presented to a hospital just weeks prior to the accident for a fall and had previously reported dizziness.³⁴ Even though the applicant’s physiatrist assessment diagnosed the applicant with post-accident dizziness, he did not review any pre-accident records, showing the applicant had previously suffered from dizziness and falls.³⁵ The applicant was also not prescribed any mobility aids until some time after the accident despite her alleged repeated complaints of dizziness. She was also on several pre-accident medications which are known to cause dizziness, fatigue and sleepiness.³⁶

33The applicant reports leg numbness, weakness, and burning lower back pain because of the accident. I cannot conclude the accident caused those injuries. Those existed pre-accident and did not seem to worsen post-accident. Also based on various neurological consultations doctors were not able to find evidence of neuropathy, nerve damage or a pinched nerve.³⁷

34I cannot conclude the meningioma was caused by the accident. The applicant saw a neurologist from Sunnybrook Health Science Centre in 2017 for persistent concussion symptoms. A small lesion was identified in her scans. This was later identified in 2018 as a meningioma by a neurologist from University Health Network. The 2017 consultation confirmed that this lesion was present in the 2015 scans. I cannot find when those scans were completed, nor was I directed to them during witness testimony. Even if the scans in 2015 were completed after the accident, I do not have any evidence to suggest the meningioma was caused by the accident. Even the applicant’s physiatrist assessor in his report notes that the meningioma was diagnosed post accident but does not list it as an accident related injury/diagnosis.³⁸

35I do not have enough evidence to support the applicant’s claim of cognitive issues as a result of the accident. Many of the assessor’s reports confirm that she was able to answer questions and give details regarding her history pre and post accident. She was also able to testify and recall a substantial amount of information.

Issue #1 – Is the applicant entitled to medical cannabis?

36In accordance with section 15 of the Schedule, an injured person is entitled to all reasonable and necessary medical expenses incurred as a result of the accident. The applicant requested, in a Treatment and Assessment Plan (OCF-18) dated July 30, 2018, medical cannabis in the amount of $2,975.02. The burden of proof rests with the applicant to demonstrate her entitlement to medical cannabis on the basis of reasonableness and necessity.

37The applicant argues that the medical cannabis is reasonable and necessary because:

(i) It was recommended by a doctor to address her mental and physical injuries;

(ii) The treatment is working. By using the medical cannabis, she is feeling pain relief, improved mood, and increased sleep;

(iii) The respondent’s assessment denies the treatment plan based on the physical aspects of her injuries and therefore there is no defense regarding the treatment on her mental impairments; and

(iv) The applicant relies on the case of 17-001146 v. Aviva Insurance Canada for the proposition that an analysis needs to be conducted on the goals of the treatment plan to determine whether it is reasonable and necessary, and the applicant has the right to choose what is best for them.³⁹

38The respondent argues that causation is a huge concern. The applicant had significant pre-existing injuries and the need for medical cannabis has not been established for her accident related injuries. Also, the respondent’s assessment does not support the need for the treatment plan.

39The applicant was referred to the Apollo Clinic for a consultation regarding an assessment and treatment of anxiety and the suitability for medical cannabis. The psychiatrist determined that medical cannabis was recommended for her treatment of anxiety, PTSD, insomnia and other psychiatric issues. The goal of the treatment was to improve functionality and decrease psychoactivity.⁴⁰

40A treatment plan was proposed for medical cannabis. The respondent conducted an assessment⁴¹ and determined that the medical cannabis was not reasonable and necessary from a musculoskeletal perspective. It was the assessor’s opinion that the applicant sustained uncomplicated soft tissue injuries which have resolved. The report goes onto to say that the applicant demonstrated non-organic signs at the assessment which are likely contributing to her pain symptoms and abnormal course of recovery.

41An insurer’s assessment regarding the suitability of medical cannabis for the applicant’s psychological injuries was not conducted.

42I find the treatment plan for medical cannabis is reasonable and necessary for the following reasons:

(i) I agree with the principles in 17-001146 v. Aviva Insurance Canada that for a treatment plan to be considered reasonable and necessary an analysis needs to be conducted respecting its goals, method of meeting its goals and cost.⁴² The treatment plan also must also relate to the treatment of the applicant’s accident related injuries. The medical cannabis was recommended for the treatment of the applicant’s accident related anxiety, PTSD, insomnia and other psychiatric issues. The goal of the treatment was to improve functionality and decrease psychoactivity. The medical cannabis improved the applicant’s functionality by:

(a) eliminating her use of Lyrica which could have contributed to her dizziness and lethargy,⁴³

(b) improving her sleep,

(c) discontinuing the use of other medications because of their negative side effects,

(d) improving her level of function and level of assistance.

(ii) The medical cannabis decreased the applicant’s psychoactivity by:

(a) making her feel calmer and by improving her mood,

(b) regaining hope for recovery,

(c) reducing suicidal ideation, and

(d) reducing her anxiety⁴⁴.

43Although the medical cannabis was also recommended to treat some of the applicant’s pre-existing conditions, there is enough evidence to support a need for it because of her accident related injuries. She has proven that the treatment goals and method are reasonable and necessary, and the cost is not excessive considering the amount of benefits the applicant is receiving from it.

44I find that the applicant has proven her entitlement to payment of medical benefits for medical cannabis as the expenses are reasonable and necessary to improve her functionality and decrease psychoactivity.

Issue #2: Is the applicant entitled to an attendant care benefit?

45In accordance with section 19 of the Schedule, the respondent must pay for all reasonable and necessary expenses incurred by the applicant as a result of the accident for services provided by an aide or attendant. The applicant requested, in an Assessment of Attendant Care Needs (Form 1), a monthly attendant care benefit in the amount of $8,467.65 from July 5, 2018 onward. The Form 1 is divided into three categories:

(i) Routine personal care,

(ii) Basic Supervisory functions, and

(iii) Complex health/care and hygiene functions.

46To name a few, the attendant can assist the applicant with her personal care, assistance with medical equipment, safety concerns and/or meal preparation. The burden of proof rests with the applicant to prove her entitlement to the benefit based on reasonableness and necessity. The Schedule limits the monthly amount of attendant care benefit payable to $6,000.00 for someone who has been deemed catastrophically impaired.

47The applicant claims she is entitled to $8,467.65 per month of attendant care for:

(i) physical and emotional support,

(ii) encouragement and motivation,

(iii) safety concerns,

(iv) meal preparation, and

(v) basic hygiene needs⁴⁵.

48The applicant argued that a lot of her inabilities to complete her activities of daily living are because of:

(i) feeling dizzy,

(ii) getting headaches,

(iii) pain in her teeth,

(iv) sleep issues,

(v) lack of motivation,

(vi) suicidal thoughts, and

(vii) fatigue⁴⁶.

49The respondent approved an attendant care benefit in the amount of $1,583.45 per month⁴⁷. In her testimony, the respondent’s occupational therapist who conducted the assessment stated that the reason for the monthly benefit was for cuing and prompting. She found that the applicant can complete the actions physically but had little motivation to complete them because of her psychological impairments. Therefore, she needed encouragement to complete the tasks. There was no monthly benefit given for the safety of the applicant or for emotional support.

50I prefer the applicant’s Form 1 over the respondent’s Form 1 because I find it is the most consistent with the medical evidence. Even though, the applicant’s occupational therapist admitted during her testimony that her assessment did not differentiate between the applicant’s needs from her pre and post injuries/conditions, I find her report the most consistent with the medical evidence. The applicant’s Form 1 took into consideration her psychological needs and how it relates to her attendant care needs. Even though some of the attendant care benefits were attributed for her physical needs, there is enough medical evidence to support that her psychological condition prevents her from completing her activities of daily living.

51The respondent’s Form 1 fails to take into consideration when the lack of motivation results in an inability to complete the task. The applicant has been diagnosed with a marked impairment in activities of daily living which means that her impairment levels significantly impede useful functioning. For example: the applicant testified that despite encouragement from family members to bathe, her daughters would have to physically do it for her. The respondent’s assessor did not attribute any monthly benefits for safety concerns because she was able to use a cell phone and stairs in the event of an emergency. What the assessor failed to consider was the applicant had attended a hospital twice for suicidal ideations and remains at a high risk for suicide.⁴⁸ Based on the applicant’s testimony, she also lacked the motivation to respond to an emergency when she burned a pot on the stove and she smelt smoke.

52I find the applicant’s Form 1 to be reasonable and necessary for the following reasons:

(i) The evidence shows the applicant is not capable of completing her personal care and hygiene requirements:

(a) At many of her psychological appointments at St. Joseph’s Health Centre,⁴⁹ the applicant presented with fair personal hygiene;

(b) Issues of her oral hygiene have been compromised due to her inability to brush and floss properly and regularly. The applicant was prescribed medications as a result of the accident that has caused xerostomia. The dentist believed xerostomia may have caused dental caries in several teeth and found a dental treatment plan partially reasonable and necessary;⁵⁰

(c) Issues with her teeth that have resulted in poor eating habits. She also lacks the motivation to eat;

(d) Someone needs to take control of her medication (related to issues of suicide);

(e) She requires cueing and encouragement to eat and drink on a regular basis. She does not do her own shopping or cooking;⁵¹

(f) Wound care;⁵² and

(g) I find the applicant’s perception of pain prevents her from completing her activities of daily living. From a musculoskeletal perspective the applicant can complete her activities of daily living, but she refuses to attempt to complete the task because she perceives pain. She also constantly reports to assessors that she feels an 8/10 or 10/10 in pain. We know the applicant had significant pre-existing physical impairments and despite that could take care of herself and go to work. It is her perception of pain and psychological issues that prevent her from completing her activities of daily living.

(ii) The evidence shows the applicant needs basic supervision:

(a) She has presented to the emergency department at St. Joseph’s hospital twice for suicidal concerns;⁵³

(b) The applicant was continuously evaluated as a high risk for safety concerns as she continued to express chronic passive suicidal ideation and symptom severity. Her safety plan included being monitored by her family and to get medical assistance. Her prognosis for improvement was very poor;⁵⁴

(c) The evidence has repeatedly shown that the applicant does not have a will to live and at many times has indicated that maybe this is the way she will die.

(iii) The applicant’s lack of motivation and confidence is present throughout the medical records and assessments from both the applicant and respondent. ⁵⁵

53I have no findings to suggest the applicant was not fully independent before the accident. The evidence suggests the opposite is true today. The applicant is consistent in her evidence to assessors and in her testimony that she requires assistance to complete her activities of daily living.⁵⁶ Therefore, based on the applicant’s accident-related injuries and conditions, I find the applicant’s Form 1 reasonable and necessary.

54I find that the applicant has proven her entitlement to attendant care benefits as the expenses are reasonable and necessary.

CONCLUSION

55Overall, the applicant proved her onus that the accident caused impairments that affect her ability to perform her activities of daily living. She has also proven her entitlement to medical cannabis and attendant care benefits as the expenses are reasonable and necessary.

ORDER

56I order that the applicant is entitled to:

(i) A medical benefit in the amount of $2,975.02 for medical cannabis; and

(ii) An attendant care benefit in the amount of $8,467.65 per month from July 5, 2018 ongoing (capped at the $6,000 maximum statutory limit);

(iii) Interest in accordance with the Schedule.

Released: July 15, 2019

___________________________

Chloe Lester

Adjudicator

Footnotes

1. 1Exhibit 75 Ambulance/paramedic records
2. 2Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. (the “Schedule”)
3. 3Exhibit 91 – Respondent’s psych report March 15, 2018
4. 4Exhibit 19 – Applicant’s Form 1
5. 5Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)
6. 6Applicant’s testimony
7. 7Exhibit 2, 4, 7 and 62
8. 8Applicant’s testimony and exhibit 2, 3, 5 and 62
9. 9Exhibit 9, 18, 56, 76 and records from Dr. Chiu’s office
10. 10Applicant’s brief tab 23 – Humber River Hospital records, and exhibit 1, 5
11. 11Exhibit 34 Dr Frank psychological assessment page 10 and applicant’s testimony
12. 12Exhibit 5, 66, 74, and Applicant’s brief Tab 21 page 1527
13. 13Exhibit 2 – Insurer’s Examination Psychological Assessment report dated November 3, 2015
14. 14Exhibit 7 Omega medical Assessment for catastrophic determination dated July 20, 2017 quoted in CAT comprehensive file review March 15, 2018
15. 15Exhibit 27 Mrs Blaney OT report dated June 21, 2018
16. 16Exhibit 32 case management progress report page 206
17. 17Exhibit 32 case management Progress reports page 199
18. 18Exhibit 2 – Insurer’s Examination Psychological Assessment report dated November 3, 2015, Exhibit 91 insurer’s examination psychological assessment March 15, 2018
19. 19There is some surveillance conducted in 2018 but the applicant was not seen those days and surveillance was discontinued. Exhibit 15 and 112 -surveillance
20. 20Dr. Neszt testimony
21. 21Testimony of Ms.Wickenden
22. 22Exhibit 5, 66, 74, Applicant’s brief Tab 21 page 1527, exhibit 82 Respondent’s family physician assessment report dated August 31, 2018 page 855, applicant’s hearing brief Tab 42
23. 23Exhibit 7 respondent’s psychiatric assessment dated September 9, 2016 quotes Dr. Frank progress report March 11, 2016
24. 24Exhibit 23 – St Joseph records, Exhibit 107 respondent’s psychological assessment
25. 25Exhibit 27 Mrs Blaney OT report dated June 21, 2018
26. 26Exhibit 4, 32 case management progress report page 203, 211
27. 27Exhibit 7 and 32 case management progress report page 198.
28. 28Exhibit 39 dental assessment by Dr. Ouanounou report dated August 31, 2018
29. 29Exhibit 32 case management progress report page 204
30. 30Exhibit 31 records from Humber River Hospital
31. 31Exhibit 32 case management progress report page 204, Applicant’s brief Tab 21 page 1610 and 1617
32. 32Exhibit 32 case management progress report page 203
33. 33Exhibit 32 case management progress report page 211
34. 34Exhibit 46 Toronto Western Hospital Records, exhibit 4, 5, 67, Respondent’s brief tab 23 and applicant’s brief tab 17 – St Joseph’s Hospital records (June 13, 2017, Jan 1 2013, and April 4, 2015), Exhibit 2, Exhibit 80
35. 35Exhibit 16 Dr Unarket’s physiatrist assessment
36. 36Exhibit 7 Respondent’s psychiatric assessment report dated September 9, 2016 page 15,
37. 37Exhibit 32 case management progress report page 209, Dr Chiu medical records Jan 26, 2015 App brief page 1524, Exhibit 4 tab 23 page 2797 (Jan 1 2013)
38. 38Exhibit 47, 48 and 16
39. 3917-001146 v. Aviva Insurance Canada, 2017 CanLII 69449 (ON LAT)
40. 40Exhibit 49 – Dr. Mandeep Singh consultation report for medical cannabis July 19, 2018
41. 41Exhibit 82 Respondent’s assessment conducted by Dr Silver on treatment plan for medical cannabis
42. 4217-001146 v. Aviva Insurance Canada, 2017 CanLII 69449 (ON LAT) at para. 10
43. 43Exhibit 32 case management progress report page 211
44. 44Exhibit 15 September 12, 2018 page 3192, 21, 32 case management progress report page 189, 199,202, 207, 208, 211, 228, 232, exhibit 52, exhibit 53
45. 45Applicant’s testimony, Occupational therapist Mrs. Wickenden assessment, Form 1 and testimony
46. 46Applicant’s testimony, Occupational therapist Mrs. Wickenden assessment, Form 1 and testimony
47. 47Exhibit 30. Assessment of Attendant Care Needs (Form 1) dated May 24, 2018. Report authored by Kathryn Blaney
48. 48Dr. Neszt testimony and his clinical notes and records. The applicant remains at a high risk for suicide.
49. 49Exhibit 23 St Joseph’s hospital Records
50. 50Exhibit 39 dental assessment by Dr. Ouanounou report dated August 31, 2018
51. 51Exhibit 32 case management progress report page 231 and Exhibit 35 dietician initial assessment report April 25, 2018
52. 52Exhibit 41-medical records St. Joseph’s hospital March 30, 2016
53. 53Exhibit 2 respondent’s orthopaedic report May 4, 2016
54. 54Exhibit 23 – St. Joseph’s hospital records
55. 55Exhibit 27 – respondent’s assessment occupational therapist report regarding treatment plan for assistive devices dated June 21, 2018, testimony at the hearing, applicant’s in-home assessment and respondent’s in-home assessment
56. 56Witness testimony at the hearing, Exhibit 2 respondent’s orthopedic assessment dated May 4, 2016```