[The Applicant] v. State Farm Mutual Automobile Insurance Company, 2020 CanLII 12764

Citation: [The Applicant] vs. State Farm Mutual Automobile Insurance Company, 2020 ONLAT 18-000605/AABS

Tribunal File Number: 18-000605/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;

[The Applicant]

Applicant

and

State Farm Mutual Automobile Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kimberly Parish

APPEARANCES:

Counsel for the Applicant:

David Wilson

Counsel for the Respondent:

Jonathan Schreider

Interpreters in Tamil Language:

Naga Ramalingam, Ramachandran

Samy, Thresha Gnanakunaseelan

HEARD: In person:

March 25 - 29, April 1, 2, 2019

Written submissions completed:

April 30, May 31, June 7, 2019

OVERVIEW

1The applicant was injured in an automobile accident (“accident”) on October 19, 2007 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996¹ (the “Schedule”). The applicant submitted an Application for Catastrophic Impairment Determination (“OCF-19”) dated July 8, 2016 to the respondent. The applicant seeks a determination that she suffered a catastrophic impairment and seeks entitlement to: the cost of examinations, an attendant care benefit, interest, an award, and a claim for costs.

ISSUES

2The disputed claims in this hearing are:

i. Has the applicant sustained a catastrophic (CAT) impairment as defined by the Schedule?

ii. Is the applicant entitled to receive payment for two cost of examinations in the total amount of $4,520.00 ($2,000.00 each plus $520.00 HST) for the Occupational Therapy (Situational) Assessment and Triage Assessment which formed part of the catastrophic impairment (OCF-19) assessments submitted by Omega Medial Associates January 25, 2016, and denied by the respondent on January 25, 2016?

iii. Is the applicant entitled to receive payment for the cost of examinations in the amount of $2,712.00 ($2,400.00 plus $312.00 HST) for an in-home assessment of attendant care needs submitted on a treatment plan (OCF-18) by Omega Medical Associates August 31, 2016, and denied by the respondent September 15, 2016?

iv. Is the applicant entitled to receive an attendant care benefit at the rate of $1,762.52 per month for the period October 19, 2009 to date and ongoing?

v. Is the applicant entitled to interest on any overdue payment of benefits?

vi. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

vii. Is the applicant entitled to her claim for costs?

RESULT

3For the reasons outlined below, I find the following:

1. The applicant sustained a catastrophic impairment as defined by the Schedule.

2. The applicant is entitled to receive payment for the cost of examinations in the amount of $2,260.00 ($2,000.00 plus $260.00 HST) for the Occupational Therapy (Situational) Assessment. The applicant is not entitled to receive payment for the cost of examination fee in the amount of $2,000.00 plus HST for the Triage Assessment.

3. The applicant is entitled to receive payment for the cost of examinations in the amount of $2,486.00 ($2,200.00 plus $286.00 HST) for an in-home assessment of attendant care needs.

4. The applicant is entitled to interest on the overdue payment of the cost of examinations pursuant to s. 46 (2) of the Schedule.

5. The applicant is entitled to receive an attendant care benefit at the rate of $507.03 per month from October 19, 2009 to date and ongoing.

6. The applicant is entitled to interest on attendant care benefits at the rate of 2 per cent per month compounded monthly to be calculated from the 11^th^ business day from when the retroactive Form 1 was received by the respondent.

7. The respondent is not liable to pay an award under Regulation 664.

8. The applicant is not entitled to her claim for costs.

4There were several motions raised at the hearing. The details of these motions and the rulings I made are noted within Appendix A at the end of this decision.

ANALYSIS

Credibility

5It is the respondent’s position that the applicant’s testimony along with the testimony of her spouse, her son, and her two sisters is unreliable and is contradicted by the documentary evidence. The respondent relies on clinical notes and records (CNRs) prior to the accident of Dr. A. Chandrasekaran, the applicant’s family doctor. The CNRs noted the applicant weighed slightly less prior to the accident, was provided with food counseling at length, and that the applicant could not perform her housekeeping tasks due to fatigue. The applicant’s testimony, and that of her family members was that she had no significant health issues prior to the accident.

6Dr. Chandrasekaran noted in a letter to the applicant’s counsel, dated March 15, 2016² that he saw the applicant for: dyspepsia, dysmenorrhea, iron deficiency anemia, abdominal pain and costochondritis and noted he did not find these issues to be serious.

7The CNRs of Dr. Chandrasekaran³ highlighted the following:

i. applicant reported chest pain on and off;

ii. menstrual irregularity/cramps;

iii. iron deficiency (anemia);

iv. required food counseling at length;

v. felt tired and was unable to do housework; and

vi. abdominal/epigastric pain, dyspepsia (ingestion).

8When the CNRs of Dr. Chandrasekaran were put to her, the applicant conceded she had problems with maintaining an ideal bodyweight and that she had received food counseling. The applicant’s explanation is that although these problems existed prior to the accident her family did not worry much about them as they were not serious medical problems. When she reported feeling tired and was unable to perform her housekeeping tasks it was because of fatigue caused by her menstrual periods. She had been referred to two specialists prior to the accident. A doctor of internal medicine examined her for chest pain once and nothing was found; the chest pain resolved. She also saw a neurologist in 2006 for fainting she experienced over a six-month period in 2006, and on one occasion in 2008.

9Overall, I do not find the applicant’s pre-accident health issues to be significant. She provided an explanation for what had been raised by the respondent as noted with Dr. Chandrasekaran’s CNRs. I accept the applicant’s testimony that prior to the accident she was able to perform the activities at home and work with little difficulty. Dr. Chandrasekaran also noted he did not find her pre-accident health issues serious. I find this evidence supports the applicant did not have any significant health issues prior to the accident which impaired her from performing her regular daily activities. As a result, I accept that is why she would not have discussed these details with her family members. Further, at the time of the hearing, it had been almost 11.5 years since the accident occurred. I find it would be unrealistic for the applicant to be expected to recall all the details of what she had reported to her family doctor prior to the accident and what health details she would have discussed with her family members.

10Throughout the course of the hearing, there were further credibility issues raised by the respondent regarding the testimony proffered by the applicant and her family. These will be addressed throughout the analysis within the decision.

Comparison of pre and post-accident functioning

11In assessing catastrophic impairment determination, it is important to look at the applicant’s pre-accident level of functioning and compare it with the level of functioning post-accident. The onus remains with the applicant to prove that her impairments resulting from the accident rise to the level of catastrophic impairment as defined within the Schedule. At the time of the accident, the applicant was employed with the same employer as a full-time mail clerk for 14 years. She had a good attendance record, missing work due to a cold/flu, or vacation. The applicant testified she lived with her husband and son who was 9 years old at the time of the accident. She performed the household cleaning and the cooking which consisted of preparing traditional Tamil meals which took time to prepare. For enjoyment, one of her hobbies was baking and icing cakes and preparing patties/snacks for her family. The testimony of her sisters corroborated this.

12Post-accident, most of the housekeeping tasks are now performed by her husband and son but one of the applicant’s sisters assisted when the applicant’s husband broke his foot in December 2018. The applicant’s limited housekeeping duties post-accident include: sweeping the floor for 10-15 minutes, making her bed, wiping the counter with a wet cloth, and washing a few dishes.

13The cooking activities she performs post-accident were described by the applicant and her family as occasionally preparing vegetables, washing and preparing rice to be cooked in a rice cooker, preparing tea and toast for breakfast, warming up food, and measuring spices for a curry to be prepared by her husband. The applicant testified that the pain in her hands, back, and neck make it difficult for her to cut vegetables and she will stop after 10-15 minutes. The family testified that two of her sisters have been cooking food for the applicant and bringing it to her house several times a week for years. One of the sisters testified she visits almost everyday at lunchtime and heats up the food and encourages her to eat, otherwise she will not eat.

14Testimony from the applicant’s family members described the applicant as being happy, outgoing, and talkative prior to the accident. They referred to her now as being a former shell of herself and that she is socially withdrawn. For example, she does not want to engage in conversation and will get irritated and become short with family members when they speak with her. She rarely smiles anymore. One of her sisters described seeing her smile on occasion when she talks about her son. The applicant’s son said he will ask his mother to assist with household tasks, go for a walk, or go on an outing but he stated his mother will often decline and say she doesn’t feel like it. The applicant and her family members testified she rarely leaves the house except to attend medical appointments, sometimes go grocery shopping, and will on occasion go out with her husband and son. She relies on her husband and son to do the banking but will go to the bank occasionally with her son if a bill has not been paid. She will also check with her son and husband that the mortgage has been paid.

15Family members all testified that she complains frequently of pain and walks much slower now than prior to the accident. She uses a handrail when climbing up and down stairs. The applicant testified during the summer she will walk 10 minutes each way to her sister’s house 1-2 times per week. She reported she feels more pain after walking. The applicant and her family testified that most of her days were spent resting on the couch, or in her bedroom. Surveillance pictures produced for the hearing showed pictures of the applicant’s sisters but none of the applicant. I find this evidence generally supports the applicant did not leave the house very often.

16It was noted within the insurer’s examination (“IE”) assessment report of Dr. G. French, Orthopedic Surgeon, following an assessment done in August 2008⁴ that the applicant reported she could prepare light meals and snacks for her family and could do some light housework. The applicant stated at the hearing she could not remember if Dr. French asked about the amount she was cooking in 2008. She testified she did not cook meals at that time and has not prepared meals for her family since the accident. This information is further supported by the applicant’s treating Psychologist, Dr. P. Kanagaratnam whom she started seeing in 2011. Her May 8, 2011 report⁵ supports the testimony provided by the applicant and family members. The report noted the applicant starts cooking but cannot complete the task and she makes breakfast for her son. The applicant clarified during her testimony that she used to do this 2-3 times per week for the past 3 - 4 years but now only makes breakfast for her son once per week.

17The medical documents support the applicant suffers from chronic pain. The applicant reported ongoing pain in the areas of her neck, back, left elbow, and bilateral shoulders. I am not persuaded the problems with the applicant’s right shoulder are linked to the accident. The applicant’s own CAT assessment report did not link the problem with the applicant’s right shoulder to the accident and the applicant stated this pain arose in 2015 - 2016. A letter dated July 11, 2017 by Dr. R. Richards, Orthopedic Surgeon diagnosed a tear in the applicant’s right shoulder and recommended rotator cuff surgery. The CNR (undated)⁶ which appears to accompany the letter noted the applicant complained about right side neck and paraspinal pain which has been present for 7 years and progressively getting worse. The note indicated she can still perform her “ADLs” (activities of daily living.) I do not afford a lot of weight to this letter as it relates to the applicant being able to perform her ADLs as Dr. Richards does not specify the ADLs the applicant is able to perform.

18In April 2017, Dr. S.H. Malempati, Orthopedic Surgeon, recommended back surgery to address bilateral sciatica which has been ongoing for the past two years.⁷ Dr. Malempati noted this was likely due to her disc herniation causing severe central stenosis in the lumbar back but does not note it was caused by the accident. There were significant risks associated with undergoing surgery and the applicant testified she was going to continue with physiotherapy treatment. I find this evidence combined with the applicant’s diagnosis of chronic pain and psychological impairments as a result of the accident significantly impact her ability to perform the ADLs which she testified she is unable to perform.

19It is necessary to look at the consistency in the information from the applicant’s testimony and that of her family members. It was consistent from their testimonies that since the accident, the applicant goes out less often; including rarely attending temple, she no longer makes cakes for special occasions which was an activity she enjoyed doing prior to the accident, she often engages in limited conversation with family members, and is now often sad. While there have been some inconsistencies raised with the frequency and degree to which she has been involved with housekeeping and meal preparation post-accident, I accept her involvement in these activities is very minimal since the accident. I rely on the testimony of the applicant’s family members, particularly the applicant’s husband and son who live with her and their testimony was consistent with what the applicant described regarding her engagement with the housekeeping and cooking tasks pre and post accident.

20I am not persuaded that the applicant’s family members are required to assist with encouraging her to eat. The applicant’s weight has not decreased since the accident and her son testified that he, his mother, and father will eat their meals separately. This evidence supports she eats independently when she is at home with her husband and son.

21The frequency in which the applicant attends the temple post-accident was a contentious issue at the hearing. Family members and the applicant described her visiting the temple on a weekly basis prior to the accident. They further testified she has not attended the temple monthly for several years and currently she attends 1-2 times/year. This is due to pain which makes it difficult for her to sit or stand for prolonged periods and she does not want to socialize with people. Her son testified she would usually attend the temple on the Sunday following his birthday but did not attend following his birthday in 2018, or 2019. The information contained within the documentary evidence is mixed. Further in May 2011⁸, Dr. Kanagaratnam noted the applicant visits the temple once in awhile, and visits less often. A report of Dr. J. Wong, Physiatrist⁹ which noted the applicant reported attending the temple once per week prior to the accident, but her frequency of attending the temple is reduced to occasionally when there are festivals. The February 22, 2017¹⁰ CAT IE report of Dr. W. Gnam, Psychiatrist, and the July 8, 2016 CAT report of Dr. D. Becker¹¹, Psychologist, noted she attended temple once per month. However, Dr. Gnam’s report also noted “occasionally visits the temple and socializes”.¹² The applicant stated she may have been confused with what she reported and meant she was only attending temple once per year in 2016.

22While there were inconsistencies with the evidence regarding how often the applicant attends the temple, based on the totality of the evidence, I accept that she attends the temple significantly less post-accident. I am persuaded by the applicant’s and family members’ testimony that the combination of her pain and her not wanting to socialize significantly impact the frequency of her attendance at the temple post-accident. While Dr. Gnam and Dr. Becker indicated that she attended temple once per month in 2016, I do not find this to be significant as prior medical records of Dr. Wong and Dr. Kanagaratnam in 2013 - 2014 both note her attendance at the temple is significantly less. I accept that standing or sitting for long periods of time at the temple would likely exacerbate her pain. Further, the applicant’s testimony and documentary evidence from Dr. Kanagaratnam supports a psychological deterioration in 2016 which I will now address below.

Development of post-accident psychological impairments

23The parties accept the applicant developed psychological impairments post-accident and as a result of the accident. The disagreement between the parties stems from the degree to which the applicant is psychologically impaired. The applicant received ongoing treatment for her psychological impairments from 2009 - 2017. The applicant submitted she no longer had access to funding for non-catastrophic medical/rehabilitation treatment beyond 2017 as the Schedule caps treatment up to 10 years. However, the applicant’s psychological impairments had not resolved by 2017.

24The applicant was assessed by Grace Gronkowska, Psychological Associate at Chronic Pain Solutions on October 28, 2009.¹³ However, the report does not reference whether an interpreter was present. Therefore, I afford little weight to this report. Beginning in July 2009, she saw Dr. J. Cooper, Psychiatrist for approximately 3 - 3 ½ years. There was also no interpreter used for the sessions with Dr. Cooper and I afford little weight to his reports as a result.

25The applicant saw Dr. C. Orme, Psychologist, for an IE¹⁴ and anhedonia (inability to feel pleasure) was noted. A further IE was done by Dr. C. Heusser, Psychologist, on October 18, 2010.¹⁵ The report diagnosed the applicant with Major Depressive Episode (improved), Specific Phobia (passenger anxiety, resolving), Post-traumatic Stress Disorder (improved), and Pain Disorder with both Psychological Factors and a General Medical Condition which Dr. Heusser linked to the accident. A subsequent IE report of Dr. Heusser, dated October 21, 2013¹⁶ noted ongoing impairments with mood, irritability, sleep, and passenger anxiety and the applicant was still suffering from chronic pain, and issues from her hysterectomy were delaying her recovery.

26Dr. Kanagaratnam, Psychologist, treated the applicant from 2011 - 2017 and speaks the Tamil language. Dr. Kanagaratnam noted the applicant’s physical complaints included pain in her neck, back, left elbow, right knee, and headaches. She diagnosed the applicant in May 2011¹⁷ with Major Depression (severe), Anxiety Disorder (severe), Post-traumatic Stress Disorder (mild to moderate), Somatoform Disorder (mild to moderate), Dysthymia (mild), Thought Disorder (subclinical). There were five barriers to rehabilitation noted: pain, irritability/anger, anxiety or stress, difficulty sleeping, and financial difficulties.

27The May 8, 2011 report of Dr. Kanagaratnam supports the testimony provided by the applicant and family members. The applicant stated that the duties she performed within her household prior to the accident were important to her and are highly regarded within her culture. Dr. Kanagaratnam noted the applicant associated shame with her inability to return to work and wanted to prevent hurting her mother so the applicant has not disclosed the consequences of the accident with her significant others.¹⁸

28Dr. Kanagaratnam noted the applicant had been advised against long-term medication as it resulted in complications which led to her having a hysterectomy in 2012.¹⁹

29A progress report by Dr. Kanagaratnam in 2014²⁰ stated the applicant’s progress was good but was guarded. A further progress report in 2016²¹ noted her progress was moderate and her prognosis was guarded with respect to return to work and her premorbid functioning. Dr. Kanagaratnam noted from a psychological perspective that the subject accident and its consequences produced a long-lasting, negative effect on her.

Catastrophic impairment determination

30The OCF-19 dated July 8, 2016²² was completed by Dr. H. Becker, MD and medical director of Omega Medical Associates (“Omega”).

31Part 4 of the OCF-19 noted the applicant sustained a catastrophic impairment under criteria 7²³ and 8.²⁴ The applicant commissioned Omega to do a series of CAT assessments. Omega concluded the applicant suffered a Class 4 Marked impairment in two domains under criterion 8 as noted within the American Medical Association, AMA Guides, 4^th^ edition (“Guides”).²⁵ The two domains are: 1) Activities of Daily Living and 2) Concentration, Persistence and Pace. Omega further concluded the applicant also meets the definition of catastrophic impairment as her whole person impairment (“WPI”) rating exceeds 55%. The respondent commissioned Soma Medical Assessments (“Soma”) to perform the CAT IE assessments. Soma concluded the applicant did not sustain a Class 4 Marked impairment in any of the four domains and further concluded the applicant does not meet the threshold 55% WPI.

32In order to be determined CAT²⁶ under the Schedule, the applicant needs to prove, on a balance of probabilities, that the impairments she suffered as a result of the accident have resulted in at least one Class 4 Marked impairment in any one of the four domains outlined in Chapter 14 of the Guides due to a mental or behavioural disorder. In the alternative, the applicant may also prove that she is CAT under Chapter 4 of the Guides, if she can demonstrate she has a combination of physical and psychological impairment ratings from medical professionals that meet or exceed the threshold 55% WPI provided for in the Schedule. The applicant is only required to prove her case under one of Chapter 4 or 14 and not both, and, if successful, she is deemed to be CAT and is entitled to the extended tier of benefits that accompanies the designation.

Is the applicant catastrophically impaired under [s. 2 (1.2)](https://www.canlii.org/en/on/laws/regu/o-reg-403-96/latest/o-reg-403-96.html#sec2subsec1.2_smooth) (g) of the [Schedule](https://www.canlii.org/en/on/laws/regu/o-reg-403-96/latest/o-reg-403-96.html)?

(Criterion 8 on OCF-19)

33I find on a balance of probabilities that the applicant sustained a catastrophic impairment under s. 2 (1.2) (g) as a result of the accident. I find she sustained a Class 4 Marked impairment in the domain of Activities of Daily Living. I do not find the applicant sustained a Class 4 Marked impairment in the domain of Concentration, Persistence, and Pace. I will provide my analysis on my findings below.

34Chapter 14 of the Guides²⁷ describes the four functional domains, the classes of impairment and the rating criteria for each class. Each party’s CAT assessors opined on the level of impairment sustained by the applicant. A Class 4 Marked impairment means that the applicant’s impairment levels significantly impede useful functioning. By contrast, a Class 3 Moderate impairment means the applicant’s impairment levels are compatible with some, but not all useful functioning. While, a Class 2 Mild impairment means impairment levels are compatible with most useful functioning.

35Omega’s CAT report (“Omega report”) was completed on July 8, 2016.²⁸ It was comprised of a physiatry assessment completed by Dr. H. Sangha, a mental/behavioural assessment by Dr. D. Becker, Psychologist, and an occupational therapy (“OT”) in-home and one day situational assessment by Ms. Stacey Baboulas, OT. A CAT clinic summary was completed by Dr. H. Becker, MD and Dr. L. Becker, Physiatrist. The report provided an assessment and rating of both physical and mental/behavioural impairments. The report provided a combined WPI rating of 58%²⁹ (revised from original WPI of 59%.) The assigned mental behavioural component was 49%. The Omega report found the applicant suffered from a Marked Class 4 impairment in two domains: 1) Activities of Daily Living and 2) Concentration, Persistence, and Pace.

36The respondent relies on its own CAT report completed by Soma (“Soma report”), dated February 22, 2017.³⁰ The Soma report included a CAT executive summary, an OT in-home assessment completed by Ms. Elyse Freedman, an orthopedic assessment by Dr. C.B. Paitich, Orthopedic Surgeon, and a psychiatric assessment by Dr. W. Gnam, Psychiatrist. The Soma report addressed physical and mental/behavioural impairments and concluded the applicant qualifies for an overall Class 3 impairment rating under criterion 8. Soma assigned an overall combined WPI rating of 27% (comprised of a WPI of 4% under criterion 7, and a WPI rating between 21% - 24% for non-physical impairment).

37Omega found the applicant to have a Class 4 Marked impairment in the areas of: Activities of Daily Living and Concentration, Persistence, and Pace. In the areas of Adaptation and Social Functioning the applicant was found to have a Class 3 Moderate impairment.

38Soma found the applicant to have a Class 2 to 3 Mild to Moderate rating in Activities of Daily Living, a Class 2 Mild impairment in Social Functioning, a Class 2 Mild impairment in Concentration, Persistence, and Pace, and a Class 3 Moderate impairment in Adaptation.

The Medical Evidence on CAT Determination

Activities of Daily Living

39I find the Omega report prepared by Ms. Stacey Baboulas, (“Baboulas report”) was more thorough than Soma’s OT CAT IE assessment report as it conducted testing which took 7 hours over a period of two days. The OT CAT IE assessment by Ms. Elyse Freedman³¹ (“Freedman report”) was conducted in under 3 ½ hours. The Baboulas report was based on performing an OT in home evaluation, and a one-day situational assessment. Further, she conducted an interview with the applicant combined with a significant amount of functional testing which addressed how the applicant coped, managed, and persisted when her symptoms became aggravated.³² The report detailed how long the applicant could perform the various activities before taking breaks and then resuming an activity. I found this information helpful as it provided precise information relating to how the applicant’s psychological impairments and pain impacted her ability to perform the specified activities and to what degree she was able to perform them.

40I find the Freedman report relied more heavily on information obtained through the applicant’s self-reporting and results from questionnaires administered. Contained within the results of two of the questionnaires; Fatigue Severity Scale and the GAD-7 Anxiety Severity, the applicant experienced a severe level of fatigue from her ADLs and her score of 15 on the GAD-7 indicates she suffers from severe levels of anxiety.³³ Further, the Freedman report relied upon information from observing the applicant perform relatively routine activities in order to observe her range of motion. These activities included: forcefully extending her left elbow, crossing one leg over the other, and demonstrating functional bilateral knee, ankle, and foot mobility.

41One of the activities assessed by Ms. Baboulas was how the applicant performed various household functional activities which included: chopping vegetables for dinner, placing a load of laundry in the washing machine, sweeping and dusting the family room, and tidying/organizing her bedroom. The report noted the applicant stating after 11 minutes that she had forgotten to dust the family room and tidy/organize her bedroom and stated she was in too much pain and was too tired to complete the activities. On the second day of testing, she was asked to sort and organize envelopes and colour bands and alphabetize business cards. During the testing she would withdraw from the activities or avoid performing certain tasks secondary to pain, fatigue, low-mood/self-confidence and became tearful on several occasions.

42The Freedman report noted the applicant participated in activities which tested her emotional and cognitive functioning. The activities included a meal planning activity which involved the applicant looking through a number of flyers and selecting items within a budget of $80.00 to create a shopping list for 3 days worth of meals. She was told she needed to complete the task in 20 minutes but took 25 minutes to complete it and did so without any mistakes. The second task involved a kitchen/home assessment. The applicant was tasked with making a small meal for herself, wiping the counter in the bathroom, sweeping the bathroom floor, and demonstrating a bathroom transfer. She was able to prepare and cook rice, clean and cook spinach to make a curry and complete the other tasks. Ms. Freedman noted that her perception of pain did not limit her ability to participate in the functional portion of the assessment.

43Overall, I prefer the findings reached by Ms. Baboulas as her report provided insight into how the applicant’s performance on the selected activities was impacted by her mood and levels of pain. The fact that Ms. Freedman was able to observe the applicant performing the functional activities with relatively little difficulty persuades me that these tasks did not challenge the applicant in areas she has difficulty with or evaluate how she is able to perform/cope with certain activities when her pain and psychological symptoms become aggravated/exacerbated.

44Dr. W, Gnam, Psychiatrist, was the only medical expert who testified at the hearing. He performed the psychiatric CAT IE on October 5, 2016³⁴ I prefer the findings noted within the Mental Behavioural CAT assessment of Dr. D. Becker.³⁵ I find Dr. Becker’s report more thoroughly addressed the severity of the applicant’s psychological impairments and specifically the impact on the applicant’s ADLs. Both doctors acknowledged the applicant is independent with her self-care tasks, and their diagnostic impression was the same in concluding the applicant suffered from:

1. Pain Disorder Associated with both Psychological Factors and a General Medical Condition and;

2. Anxiety Disorder Not Otherwise Specified (with features of post-traumatic Stress Disorder).

45They both provided a diagnosis of Major Depressive Disorder, but Dr. D. Becker opined it was in the moderate to severe range, and Dr. Gnam opined it to be in mild to moderate range. I find this difference to be significant as the applicant had received extensive psychiatric and psychological treatment from 2009 to 2017. Although there were signs of improvement over time, Dr. Kanagaratnam noted in her November 14, 2016 report³⁶ that “she continues to be in a vulnerable position, with symptoms waxing and waning from moderate to severe, based on external circumstances and internal psychological processes.” I find this evidence supports she was psychologically deteriorating.

46The applicant produced a rebuttal report to Dr. Gnam’s IE³⁷ explaining why Dr. D. Becker’s Chapter 14 ratings from the Guides were not consistent with the Global Assessment of Functioning (“GAF”)³⁸ scores provided by previous clinicians. Dr. D. Becker opined that all but one of the evaluations done by prior clinicians were conducted between 2009 - 2014. Dr. Becker assessed the applicant in May 2016 and the applicant described her pain as increasing over time, and her mood deteriorating. Previous clinicians had noted her self-reporting to be genuine. Dr. D. Becker further noted that Dr. Kanagaratnam had provided decreasing GAF scores over time which supports that the applicant’s self-reported psychological symptoms and impairments resulted in a decrease in functioning over time. I find this evidence from the treating psychologist to be persuasive as Dr. Kanagaratnam had been consistently treating her since 2011.

47Dr. D. Becker noted she had consulted with Ms. Baboulas and relied on the findings within her report to determine the applicant suffered a Class 4 Marked impairment in two domains. The Baboulas report indicated that the applicant’s pain, fatigue, low mood, diminished interest, and low self-confidence, fear of exacerbating her current symptoms and/or causing further harm, poor initiation/motivation, and low self confidence negatively impacts her ability to perform her previous ADLs on a consistent basis. It was further noted that the applicant did not like leaving the house because “she did not feel like doing it.” This was corroborated by the testimony of the applicant’s son. Dr. D. Becker also noted that the Post-traumatic Stress Disorder (PTSD) checklist which is a self-report screening measure reflected that she reported experiencing avoidance and hyperarousal symptoms at a significant level.

48Dr. Gnam conceded at the hearing that certain information was incorrectly noted within his report. For example, in the domain of Activities of Daily Living, he criticized Dr. D. Becker for relying excessively upon the functional descriptions provided within the Baboulas report which he noted was based on the applicant’s self-reporting and minimal functional testing. Dr. Gnam testified at the hearing that Ms. Baboulas did conduct a significant amount of functional testing. I find this discrepancy to be significant as Dr. Gnam concluded the applicant did not suffer a Class 4 Marked impairment in the Activities of Daily Living after reviewing both OT CAT reports.

49Dr. Gnam also opined that the applicant suffers from a motivation impairment which can arise from a mental disorder. In his opinion, this in combination with the applicant’s sleep deprivation which is the cause of the applicant having a reduced ability to sustain useful activity. The applicant testified about her sleep issues and stated prior to the accident she used to sleep 7-8 hours/night. She stated she currently gets 5-6 hours of interrupted sleep/night. The applicant addressed an inconsistency in the CNR³⁹ of her current family doctor, Dr. Nagamuttu which indicated she was getting 7 hours sleep per night and noted no fatigue. The applicant submitted she told her doctor what time she goes to bed and what time she wakes up and that as a result it may be correct that he noted no fatigue. Both Dr. Becker and Dr. Gnam’s report support that the applicant’s sleep is disturbed which has contributed to her fatigue.

50I am not persuaded by Dr. Gnam’s opinion that the applicant does not suffer from a catastrophic impairment in the area of Activities of Daily Living for reasons which arose during his testimony. For example, in his report he indicated on a typical day, the applicant makes her son breakfast.⁴⁰ This conflicted with the testimony of the applicant and her son that she would not have reported this to Dr. Gnam as her son was away at university at the time and lived in residence. In addition, Dr. Gnam showed very little insight into the applicant’s function pre and post-accident. He was not aware that the applicant had reduced her frequency in attending temple and no longer prepared complex meals or baked, both were activities she previously enjoyed. Post accident she relies on family members. For these reasons I give Dr. Gnam’s report less weight.

51Dr. Gnam testified that the medical records he reviewed noted the applicant ceased from taking anti-depressants in 2012. Dr. Gnam opined that her treating psychiatrist and psychologist believed her condition had stabilized. He further opined her frequency of psychological treatment should have increased beyond once per month if her condition had not stabilized or had become worse. I find this information to be outside the scope of Dr. Gnam’s report and I afford little weight to this evidence. Dr. Gnam stated he believed she is capable of doing many of her pre-accident activities of daily living and that she has not reached the level that it significantly impedes useful functioning. I disagree.

52I do accept there are inconsistencies noted within some of the assessor’s reports regarding details surrounding meal preparation, housekeeping duties, and attendance at the temple. Overall, I do not afford much weight to the inconsistencies and I have provided my reasons. I find overall the applicant’s ongoing pain, depression, fatigue, social withdrawal, and her limited engagement with meal preparation and housekeeping are evidence that her impairments significantly impede useful functioning in this domain. I find the combination of the corroborated testimony of the applicant and her family, the findings noted by Dr. D. Becker, and the Baboulas report support that the applicant’s impairment levels significantly impede useful functioning in Activities of Daily Living. Accordingly, I find she sustained a Class 4 Marked impairment in this domain.

Concentration, Persistence, and Pace

53I do not find on a balance of probabilities that the applicant has met her burden of proof that she sustained a Class 4 Marked impairment in the domain of Concentration, Persistence, and Pace.

54I prefer the findings of Dr. Gnam which support the applicant sustained a Mild (Class 2) impairment rating in this domain. Further, Dr. Gnam opined the applicant’s performance neurocognitive testing was consistent with a mild impairment in working and/or verbal memory. The applicant scored 25/30 on a Tamil version of the Montreal Cognitive Assessment (MOCA) which was normal. Further, she sufficiently demonstrated she could sustain concentration to complete the Psychiatric and OT examinations.⁴¹

55I find the Freedman report supported that the applicant was able to complete the assigned task of preparing rice and a simple curry without any cueing or assistance. While this may not have duplicated how the applicant functions under stress, it demonstrates she was able to maintain concentration and pace to follow instructions and successfully complete the required task. The applicant was also able to sit through a lengthy interview and demonstrate she could perform light housekeeping tasks such as sweeping the bathroom floor, cleaning the bathroom sink and counter, and making her bed. Further, the flyer activity demonstrated that the applicant was able to perform the task in 25 minutes without any mistakes. I will address below the further information I have relied on which supports the applicant did not sustain a Class 4 Marked impairment in this domain. Dr. D. Becker disagreed with the findings of the Freedman report as Dr. D. Becker noted the applicant’s psychological impairments were not taken into account when Ms. Freedman administered the in-home OT CAT IE assessment. I find the above activities observed by Ms. Freedman demonstrated that the applicant was able to maintain concentration, persistence, and pace at a level which does not support she suffers from a Class 4 Marked impairment in this domain.

56During her testimony, the applicant was able to sit for extended lengths of time while maintaining focus and addressing the questions put to her. For example, the applicant produced a card from her purse at the hearing when she referenced a medical appointment in 2008.⁴² The applicant testified she is able to record her appointments in a calendar and that she does not remember missing any appointments. Dr. Gnam’s report and the Freedman report corroborate that she uses a written aid to keep track of her appointments and Ms. Freedman noted she had not missed any appointments. The applicant testified she will do the banking if her son has forgot to pay a bill and will check with her husband that the mortgage was paid. The applicant also stated she will read for about a half hour once a week as it relaxes her.

57For the reasons noted above, I do not find the applicant sustained a Class 4 Marked impairment in the domain of Concentration, Persistence, and Pace.

Is the applicant catastrophically impaired under [s. 2 (1.2)](https://www.canlii.org/en/on/laws/regu/o-reg-403-96/latest/o-reg-403-96.html#sec2subsec1.2_smooth) (f) of the [Schedule](https://www.canlii.org/en/on/laws/regu/o-reg-403-96/latest/o-reg-403-96.html)?

(Criterion 7)

58I have already determined on a balance of probabilities that the applicant is catastrophically impaired as I have found she sustained a Marked Class 4 impairment under Criterion 8. Therefore, it is not necessary to perform a complete analysis under Criterion 7. However, I will address this for completion purposes as WPI ratings based on combined physical and mental/behavioural impairment ratings were assigned by the CAT assessors on behalf of both parties.

59I have provided a summary of the differences between the Omega and Soma WPI ratings below:

Medications

60A rating of 3% was provided by Dr. H. Sangha (Omega) and no rating was provided by Dr. C.B. Paitich (Soma). I find no rating is appropriate. At the time of the CAT assessments, the applicant was taking Meloxicam (non-steroidal anti-inflammatory) and Amitriptyline (anti-depressant). Dr. Sangha’s report noted that the non-steroidal anti-inflammatory medication increased her cardiovascular event risk and TCA (tricyclic antidepressants) caused dry mouth and dizziness; likely due to anticholinergic side effects. Dr. Paitich opined there is no indication these medications would mask an impairment which would otherwise be available for rating. He further opined she has no side effects arising from her medication use which resulted in impairment. I am persuaded by Dr. Paitich’s 0% rating in which he referenced page 9 of the Guides that the use of these medications would have to mask an impairment. The applicant has not produced evidence which supports that these medications have masked an impairment or produced any side effects which result in impairment. Therefore, I accept that no percentage should be assigned for medications.

Cervicothoracic Spine and Lumbosacral Spine

61Dr. Sangha (Omega) provided an impairment rating of 5% for each of the above noted areas. Dr. Paitich (Soma) rated each of these areas at 0%.

62I find the appropriate rating for the cervical spine is 0% as it aligns with the DRE Cervicothoracic Category I as noted on page 103 of the Guides. Dr. Paitich found a full and unrestricted range of motion in her cervical spine and found no evidence of guarding or spasm. Dr. Sangha also noted normal alignment of the cervical spine and no guarding or spasm was noted.

63I find the appropriate rating for the lumbosacral spine is 5%. I am persuaded by Dr. Sangha’s findings as it aligns with the applicant’s testimony that she has difficulty standing and kneeling for prolonged periods and feels more pain after walking. Dr. Sangha noted increased hypertonicity and guarding to the right mid-lumbar paraspinals on palpation. While Dr. Paitich found no evidence of guarding or spasm, he noted minimal but diffuse discomfort in right and left paralumbar areas and a uniform loss of movement in all planes.

Lower Extremity and Upper Extremity

64Both Omega and Soma assigned a 2% impairment rating for the lower extremity area. I therefore accept the rating is 2%. Further, both Omega and Soma assigned a 0% impairment rating for the upper extremity areas and I have no reason to alter this rating and accept the upper extremity rating is 0%.

Facial Scarring

65The applicant had a small scar at above her left upper lip as a result of the accident and Dr. Sangha (Omega) assigned a range of 1% - 5%, which was later revised by the summary writer to 2%. Dr. Paitich (Soma) assigned an impairment rating of 2% for the facial scar. I accept the appropriate rating is 2%.

Mental and Behavioural Impairments

66The 4^th^ edition of the Guides does not use percentages for estimating mental/behavioural impairments in the same way which physical impairments are assessed. The parties have used different methods of assigning a WPI percentage rating to a psychological impairment.

67The applicant relies on Omega’s opinion to support its position that the applicant sustained a Marked Class 4 impairment in two domains. Dr. H. Becker (Omega) noted that the higher rating was chosen in keeping with the Guides philosophy and relevant jurisprudence.⁴³ Dr. H. Becker utilized Table 3 - Emotional of Behavioural Impairments contained within Chapter 4 of the Guides⁴⁴ to convert a Marked Class 4 impairment to a WPI rating. Omega submitted the applicant sustained a WPI rating of 49% which is on the high end of the range under severe limitation of 30 - 49%.⁴⁵

68The respondent relies on Dr. Gnam’s opinion who used the GAF score method described in the Schedule for Rating Permanent Disabilities published in California⁴⁶ which utilizes a conversion table to convert a GAF score to a WPI rating. Dr. Gnam opined the applicant’s GAF score was within the range of 56 to 54 which translates the applicant’s permanent mental impairments into a final WPI rating between 21% and 24% inclusive.⁴⁷

69I prefer the approach taken by Dr. Gnam who utilized the GAF score method which yielded final WPI rating between 21% and 24%. Dr. Gnam provided justification for how he obtained a GAF score range of 54 to 56 as he found the applicant sustained a Moderate Class 3 impairment in one domain and lesser impairment in the other domains, which he concluded were consistent with the ordinal ratings. I have found the applicant suffered a Class 4 Marked impairment in one of the four domains and on the basis of her mental impairment. However, I do not accept the WPI rating of 49% as opined by Omega which was based on their finding the applicant sustained a Marked Class 4 impairment in two domains. Therefore, I find that a mid range of 39.5% is a more appropriate rating and I have rounded this rating up to 40%.

WPI Rating

70Using the combined values chart on page 322 of the Guides, the WPI rating for the applicant’s impairments associated with the physical injuries she sustained from the accident is 7% [5 + 2 + 2]. When I combine this physical impairment rating with the 40% WPI for mental and behavioural impairment, she has a 44% WPI [7 + 40] which is less than the 55% threshold required for catastrophic impairment under Criterion 7.

71I find the applicant does not meet the test for catastrophic impairment determination based on her combined physical and mental impairment ratings as she does not meet the threshold 55% WPI rating as a result of the accident for the reasons I provided above.

Entitlement to Attendant Care Benefits

72As I have found the applicant has sustained a catastrophic impairment as a result of the accident, the applicant is entitled to claim attendant care benefits beyond 104 weeks. I find the applicant is entitled to attendant care benefits at the rate of $507.03 per month for the period of October 19, 2009 to date and ongoing. I do not find the applicant is entitled to receive the amount of $1,762.52 per month for attendant care benefits as noted on both Form 1’s dated November 24, 2016. My analysis is below.

73Two retroactive Form 1’s (dated November 24, 2016) were submitted by Ms. Baboulas and claim attendant care at the same rate of $1,762.57 per month.⁴⁸ One Form 1 is for the period October 19, 2009 to November 23, 2016, and the other is for the period of November 24, 2016 to date and ongoing. The attendant care benefit was submitted to the respondent in February 2017 which was denied on February 24, 2017. The respondent did not produce its own Form 1 for me to perform a comparative analysis.

74The definition of an “incurred” expense under the Schedule applicable to this accident is not governed by the restrictions applicable for the Statutory Accident Benefits Schedule for accidents occurring on or after September 1, 2010. The applicant relies on prior caselaw from the Ontario Divisional Court, Belair Insurance Company v. David McMichael⁴⁹ which referenced that an insured person did not need to actually receive the item or services claimed in order to be entitled to the expense. It is sufficient that the reasonableness and necessity of the service be established, and that the amount of the expenditure can be established with certainty. This was not refuted by the respondent.

Attendant Care from October 19, 2009 to November 23, 2016

75The chart below sets out the recommended attendant care as noted on both Form 1’s:

Grooming

(Level 1)

Feeding

(Level 1)

Hygiene

(Level 2)

Basic Supervisory Care (Level 2)

Shaving

(8 mins/week)

Hair: Shampoo, blow/towel dries

(70 mins/week)

Hair: Performs styling, set and comb -out

(70 mins/week)

Provides assistance, either in whole or part, in preparing, serving, and feeding meals

Breakfast (70 mins/week)

Lunch and dinner (1,050 mins/week)

Bathroom: cleans tub/ shower/sink/

toilet after applicant’s use

(35 mins/week)

Applicant lacks the ability to respond to an emergency or needs custodial care due to changes in behaviour

Grooming total per week=

148 mins.

Feeding total per week=

1,120 mins.

Hygiene total per week =

35 minutes

Basic Supervisory Care total per week = 1,260 minutes

76Regarding attendant care from October 19, 2009 to November 23, 2016, I find the applicant is entitled to attendant care as follows:

1. Grooming: I find no attendant care to be payable for grooming. The Form 1 noted as a result of right arm pain, she had difficulty with shampooing/braiding her hair and difficulty with shaving her legs. The applicant stated she is independent with her self-care and can groom her hair independently and tie it back with a hair tie. She also stated she did not shave her legs prior to the accident. The applicant testified her right arm pain arose in 2015 -2016 and Dr. Sangha, one of Omega’s CAT assessors has not linked the applicant’s right arm pain to the accident.

2. Feeding: I find attendant care is payable at a rate of $507.03 per month for feeding. This calculation is based upon 90 minutes per day for preparation of lunch and dinner. The Form 1 noted the applicant had typically spent one and half hours preparing lunch and dinner.⁵⁰ The applicant stated she makes tea and toast for herself for breakfast and she makes breakfast for her son about once per week. I am also not persuaded that the applicant needs encouragement to eat as the applicant’s son testified that he, his mother, and father will eat dinner separately. Further, there has been no decrease in her weight following the accident. For lunch and dinner, I find 90 minutes per day x 7 days/week = 630 minutes/week. This calculates to 630 minutes/week divided by 60 = 10.5 hours/week. The 10.5 hours/week multiplied by 4.3 = 45.15 hours per month at an hourly rate of $11.23.⁵¹ Therefore the monthly amount for attendant care payable for feeding is $507.03 per month.

3. Hygiene: I find no attendant care is payable for bathroom cleaning which was noted under the section of “Hygiene” on the Form 1. I find this is not a service which is a payable under attendant care. It does not relate directly to the applicant’s personal care. I agree with the respondent’s submission that cleaning the bathroom would be covered under a Housekeeping and Home Maintenance Benefit. The applicant submitted the respondent’s submission is erroneous in law but did not provide further explanation. Therefore, I do not accept that cleaning the bathroom is a service covered by the attendant care benefit.

4. Basic Supervisory Care: I find there is no attendant care payable for basic supervisory care. The Form 1 proposed 3 hours of attendant care/day x 7 days per week for a total of 1,260 minutes per week. This is to provide emotional support for the applicant in her home, or through participation in social and productive activities in her community (i.e. going to the bank, grocery store, coffee shop and medical appointments). This would be to support her re-integration and resumption of some of her previously completed roles.⁵² However, page 4 of the Form 1 noted that 1,260 minutes of attendant care per week is required because the “applicant lacks the ability to respond to an emergency or needs custodial care due to changes in behaviour.” The applicant testified that since the accident she has not experienced an emergency which she could not respond to. The Freedman report also noted the applicant verbally explained what to do in case of an emergency.⁵³ Therefore, I do not find the applicant is entitled to an attendant care benefit amount for basic supervisory care. I find the emotional support Ms. Baboulas recommended to assist the applicant with re-integrating into the community and with resuming some of her previous roles are not attendant care services payable under basic supervisory care.

77I find the applicant is entitled to receive attendant care at the rate of $507.03 per month for feeding. Therefore, the total amount payable for attendant care is $507.03 per month for the period October 19, 2009 to November 23, 2016.

Attendant Care from November 24, 2016 and ongoing

78The second retroactive Form 1 (also dated November 24, 2016) noted the applicant’s attendant care needs remained the same. The services and amounts required for attendant were identical to the retroactive Form 1 noted above. The medical evidence supports the applicant continued to suffer from ongoing chronic pain and psychological impairments. I find as a result, she had difficulty with meal preparation as noted by Dr. Kanagaratnam and Ms. Baboulas which was also corroborated by the applicant’s family members. I find her physical impairments remain unchanged since the date of the second Form 1 and am persuaded by the medical evidence of Dr. Kanagaratnam that her psychological impairments have worsened.

79I find the applicant is also entitled to receive attendant care at the rate of $507.03 per month for feeding for the period November 24, 2016 to date and ongoing. I find her physical and psychological impairments continue and as a result her level of attendant care required is the same as what I have noted within my above analysis.

Overdue Payments

80Section 46 of the Schedule provides for when payments become overdue:

(1) An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Part.

(2) If payment of a benefit under this regulation is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly.

81The applicant also claimed interest on past attendant care benefits. Section 39 (4) of the Schedule sets out when attendant care becomes payable:

The insurer shall begin payment of attendant care benefits within 10 business days after receiving the assessment of attendant care needs and, pending receipt by the insurer of the report of any examination under section 42 required by the insurer, shall calculate the amount of the benefits based on the assessment of attendant care needs.

82The applicant submits interest on attendant care benefits begins to accrue as of October 19, 2009. The respondent submitted that if the Tribunal finds attendant care to be payable, it should not find interest on attendant care benefits to be payable prior to February 2017. The Form 1 was first submitted to the respondent in February 2017. The respondent denied attendant care benefits in an Explanation of Benefits (“OCF-9”) dated February 24, 2017.⁵⁴ The parties submitted case law on the issue of when interest on attendant care benefits becomes payable when a retroactive Form 1 is received.

83The applicant relies on the Ontario Divisional Court appeal case, Angela Grigoroff v. Wawanesa Mutual Insurance Company.⁵⁵ Grigoroff addressed when under the Schedule a payment is “overdue.” The case addressed a December 2001 accident and a retroactive Form 1 was submitted to the insurer in February 2009. The finding was that a claim for attendant care benefits must be claimed through submitting a Form 1. The judge relied on the legislative framework set out within the Schedule, under s.s. 39 (1) (3) (4) and further relied on s. 46 (1) which stipulates a payment is not overdue unless the insurer fails to pay the benefit within the required timeframe. Further, the judge found the interest on the attendant care benefit owing for the retroactive period between December 2001 - July 2003 was to be calculated from February 2009 (the date in which the retroactive Form 1 was received.)

84I find the Grigoroff case to be persuasive. Similar to the case before me, a Form 1 was submitted retroactively several years after the accident date and I agree with the finding in Grigoroff that s. 39 (1) (3) (4) established that a claim for attendant care benefits is commenced when the insurer is presented with the Form 1. Prior to receiving the Form 1, the insurer is not required to pay an attendant care benefit. If the insurer finds the benefit is payable, then it must commence payment within 10 business days of receiving the Form 1. Therefore, the benefit cannot be overdue until the 11^th^ business day after the insurer has received the Form 1.

85The respondent relies on the Ontario Superior Court decision, Vincent Dewitt v. State Farm Mutual Automobile Insurance Company.⁵⁶ This case addressed when payments were overdue on a claim for income replacement benefits and specifically when does interest become payable on overdue benefits pursuant to s. 46 (2). The facts of that case are not analogous to the case before me and does not address the same specified benefit in dispute. I therefore find the case provides little assistance and I am not persuaded by it.

86The applicant also submitted a decision on an Ontario Superior Court Motion, Bradley Michael Mulhall v, Wawanesa Mutual Insurance Company⁵⁷ which addressed when interest should begin to run on attendant care benefits found to be owing during a retrospective time period. The applicant in that case suffered a severe brain injury and was catastrophically impaired as a result of the accident and could not perform any physical activities. The court held that interest should be awarded from the date the insurer should have been aware that the benefits were owed, regardless of the retroactive assigned date. Attendant care benefits and interest were awarded retroactively to the earliest date attendant care benefits were found to be owing. While I agree with the approach taken in Mulhall, and the test which it set out, I find the facts in the case before me are distinguishable. The applicant in the case before me did not suffer a severe brain injury and was able to perform some of her attendant care needs. Therefore, in the case before me, I accept the respondent only knew what the level of the applicant’s attendant care needs were when they received the Form 1 in February 2017.

87The applicant also submitted jurisprudence cases from the Financial Services Commission of Ontario (“FSCO”)⁵⁸. I have reviewed these cases which are not binding on me and I have found these cases do not support the applicant’s position.

88Therefore, based on the analysis above, and in keeping with the analysis of Grigoroff, I find attendant care benefits to be payable from October 19, 2009 to date and ongoing. I find that interest shall be calculated from the 11^th^ business day after the insurer received both retroactive Form 1’s (dated November 24, 2016) in February 2017.

Is the applicant entitled to the remaining amount of $4,520.00 for assessments for determination of catastrophic impairment?

89I find the applicant is entitled to payment for the OT (Situational) Assessment in the amount of $2,000.00 plus HST which is the maximum payable under the Professional Services Guidelines⁵⁹ as I find this assessment to be reasonable. I do not find the Triage Assessment to be reasonable and therefore the applicant is not entitled to payment for this assessment.

90The applicant submitted a treatment plan (“OCF-18”) in the amount of $14,012.00, dated January 19, 2016 which requested a multi-disciplinary assessment for catastrophic impairment determination. The following assessments were proposed:

i. $2,000.00 Physiatry Assessment

ii. $2,000.00 Psychological Assessment

iii. $2,000.00 OT Assessment (In home)

iv. $2,000.00 OT Assessment (Situational)

v. $2,000.00 Triage Assessment

vi. $2,000.00 Overall Assessment Summary, Analysis, Final Rating

vii. $200.00 OCF-18 completion

viii. $200.00 OCF-19 completion.

91The applicant submitted that the criteria for funding a CAT assessment is stipulated by s. 25 (1) 5⁶⁰ which requires an insurer to pay for reasonable fees charged with preparing an OCF-19 application under s. 45 for determination of whether the insured person sustained a catastrophic impairment, including any examination or assessment for that purpose. The applicant submitted the unapproved amounts of the assessment were incurred.

92The respondent noted in an Explanation of Benefits (“OCF-9”) with a fax date stamp of January 27, 2016 that they approved a total amount of $9,492.00 for this assessment. The OCF- 9 further noted the OT Assessment (Situational) and the Triage Assessment were not payable. The respondent’s position is that they approved the OT Assessment (In home) and that two OT assessments are duplicative. The OCF-9 noted as per the Professional Services Guideline, the Triage Assessment is considered the cost of doing business. The unapproved amounts total $4,520 ($2,000.00 for each assessment plus $520.00 HST.)

93I find the two OT assessments were not duplicative. While they were both OT assessments, conducted by the same OT, I find the assessments were separate and distinct of each other. I find the OT (In home) Assessment addressed the applicant’s level of functioning with performing her activities within her home. I find the OT (Situational) Assessment to be reasonable as it assessed the applicant’s level of functioning and performance when specific demands of various activities were placed upon her. This was also supported within Dr. Gnam’s CAT IE report in which he noted that information gathered from the OT (Situational) Assessment was relevant to determining impairment in the domain of Adaptation.⁶¹ I find the OT (Situational) Assessment results provided Dr. D. Becker with details she utilized to assess the applicant’s level of impairment in the four domains of functioning to determine if the applicant suffered a catastrophic impairment under Criterion 8. The onus is on the applicant to prove she suffered a catastrophic impairment as a result of the accident, and I find the OT (Situational) Assessment was a reasonable cost incurred by the applicant to meet her burden of proof. Therefore, the applicant is entitled to receive payment for the OT (Situational) Assessment in the amount of $2,000 plus HST.

94I do not find the Triage Assessment proposed by Omega is reasonable. It is not an assessment which is performed to determine the level of impairment under a specific specialization, rather it broadly addresses the recommended individual assessments to assess catastrophic impairment determination. Each of the CAT assessments identify what the purpose is for performing each specialized assessment. I do not find this assessment is reasonable. Therefore, the $2,000.00 plus HST for the Triage Assessment is not payable.

Is the applicant entitled to receive payment for the cost of an examination in the amount of $2,712.00 for an in-home assessment of attendant care needs?

95The assessment of attendant care needs and Form 1 were denied by the respondent through an OCF-9 dated September 14, 2016. The OCF-9 noted that attendant care is not payable beyond 104 weeks unless the applicant is found to be catastrophically impaired. As I have found the applicant sustained a catastrophic impairment as a result of the accident, I therefore find the attendant care assessment in the amount of $2,486.00 is reasonable.

96The parties made no submissions regarding the amount submitted for this treatment plan. I find the applicant is entitled to the cost of an in-home assessment of attendant care needs in the amount of $2,486 (includes $2,000.00 for the attendant care needs assessment, $200.00 cost of preparing the OCF-18, plus $286.00 HST). The applicant also requested in its OCF-18, $226.00 including HST for preparing the Form 1. I find the preparation of the Form 1 forms part of the assessment of attendant care needs and is subject to the $2,000.00 cap noted within s. 25 of the 2010 Schedule. Therefore, I find the $286.00 charge for preparing the Form 1 is not payable. I rely on the transitional rules contained in both the 1996 and 2010 Schedules and confirmed within the FSCO Superintendent Bulletin A-04/10. Within s. 3 of the 1996 Schedule - Ontario Regulation 403/96 (Accidents on or after November 1, 1996) it stipulates that any amount paid under the regulation shall be paid under the new regulation in an amount to be determined. This is confirmed within s. 2(2) of the transitional rules of the 2010 Schedule - Ontario Regulation 34/10 (Effective after September 1, 2010). It is further noted within s. 2(2) that any amounts previously paid under s. 24 of the 1996 Schedule would now be paid under s. 25(1), (3), (4), and (5) of the 2010 Schedule. Therefore, I find the applicant is entitled to $2,486.00 (not $2,712.00) for an in-home assessment of attendant care needs which includes preparation of the Form 1.

Is the applicant entitled to an award pursuant to Ontario Regulation 664?

97I find the applicant is not entitled to an award. I do not find the applicant has met her burden of proof that the respondent acted unreasonably or delayed payment of any accident benefits.

98It is noted within Ontario Regulation 664⁶² that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award with interest.

99The applicant submitted the basis for claiming an award is that the respondent has unreasonably withheld or delayed payments of all claims which are in dispute for this hearing. In support of its position, the applicant submitted that in maintaining its denial of attendant care, the respondent did not consider Dr. Becker’s and Ms. Baboulas’s responses to the respondent’s catastrophic impairment assessment reports. The applicant has submitted an award of 30% is warranted. Regarding the two OCF-18’s in dispute, the applicant submitted an award at the maximum amount is warranted given the “modest” amounts of the disputed claims.

100The respondent submitted that the applicant did not advance a claim for attendant care benefits until 2017. Further, while the respondent denied the applicant’s entitlement to benefits, these denials were not made unreasonably, and the applicant has failed to meet her burden of proof that the respondent acted unreasonably or delayed payment of any benefits. I agree. The respondent accepted the position of their own catastrophic impairment assessors and maintained its denial of attendant care benefits. I do not find this equates to an unreasonable withholding or delayed payment of benefits. The respondent’s position regarding the OCF-18 for the balance of the catastrophic impairment assessments are that they were not reasonable. The respondent’s denial of the attendant care assessment was on the basis that the applicant was not entitled to attendant care benefits beyond 104 weeks unless she was found to have suffered a catastrophic impairment which was the central issue at the hearing. I do not find the respondent’s denials of the treatment plans in dispute rose to the level of an unreasonable withholding or delayed payment of benefits. Therefore, I find the applicant is not entitled to an award.

Is the applicant entitled to costs?

101I find the applicant is not entitled to its claim for costs.

102Rule 19.1 of the Safety Licensing Appeals & Standards Tribunals Ontario Common Rules of Practice and Procedure, October 2, 2017 provides that a party may make a request to the Tribunal for its costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith. No submissions were provided by the applicant to support her claim for costs. As a result, I do not find the applicant has proven she is entitled to costs.

CONCLUSION

103For the reasons which I have noted above, I order the following:

1. The applicant sustained a catastrophic impairment as defined by the Schedule.

2. The applicant is entitled to receive payment for the cost of examinations in the amount of $2,260.00 ($2,000.00 plus $260.00 HST) for the Occupational Therapy (Situational) Assessment. The applicant is not entitled to receive payment for the cost of examination fee in the amount of $2,000.00 plus HST for the Triage Assessment.

3. The applicant is entitled to receive payment for the cost of examinations in the amount of $2,486.00 ($2,200.00 plus $286.00 HST) for an in-home assessment of attendant care needs.

4. The applicant is entitled to interest on the overdue payment of the cost of examinations pursuant to s. 46 (2) of the Schedule.

5. The applicant is entitled to receive an attendant care benefit at the rate of $507.03 per month from October 19, 2009 to date and ongoing.

6. The applicant is entitled to interest on attendant care benefits at the rate of 2 per cent per month compounded monthly to be calculated from the 11^th^ business day from when the retroactive Form 1 was received by the respondent.

7. The respondent is not liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant.

8. The applicant is not entitled to its claim for costs.

Released: February 18, 2020

___________________________

Kimberly Parish

Adjudicator

APPENDIX A

Motion#1

1The respondent requested that the four lay witnesses who provided attendant care services as noted in Adjudicator Hunter’s order dated February 26, 2019 not be allowed to testify at the hearing. The respondent stated it would face prejudice by allowing these witnesses to testify as it had not been provided with will say statements which violates Rule 9.2 (b) of the Tribunals Common Rules of Practice and Procedure, October 2, 2017 (“Tribunal Rules”). The applicant stated this issue was not raised by the respondent prior to the start of the hearing and that it is a disingenuous submission that the respondent will not be able to cross-examine these witnesses. The applicant requested I consider waving Rule 9.2 (b) and a general statement be provided for each witness as part of their testimony.

2I ordered that the four lay witnesses noted in Adjudicator Hunter’s order dated February 26, 2019 can testify and a brief oral statement can be provided to the respondent prior to the commencement of each of their testimonies to ensure procedural fairness to both sides.

Motion#2 a)

3The applicant raised that a summons to witness could not be served on the insurer’s witness, Dr. W. Gnam, psychiatrist as the applicant did not have the address of where the summons could be served. This was resolved at the hearing as the respondent produced Dr. Gnam as a witness on March 29, 2019.

Motion#2 b)

4The applicant requested the IE report of Ms. Freedman, OT be excluded if she would not be available to testify. The applicant served a summons dated March 12, 2019 on Ms. Freedman. The respondent advised the applicant on March 13, 2019 that Ms. Freedman was out of town for two weeks. The applicant stated she emailed the respondent to request the respondent advise 90 days prior to the hearing, if the respondent would be summonsing Ms. Freedman. The applicant stated she sent written correspondence to the respondent on five occasions from September 2018 - February 1, 2019 and no response was received. The applicant served a summons on Ms. Freedman on March 25, 2019 which noted she was to attend the hearing March 26, 2019 at 10:00 am, however Ms. Freeman did not attend on that date. The respondent was directed to contact Ms. Freedman to confirm her availability to testify on March 25 or 26, 2019.

5I do not find the applicant can be deprived of an important procedural step in this process; the right to cross-examine Ms. Freedman on her report and for the evidence to be tested accordingly. I ordered the respondent to issue a summons by March 26, 2019 by 3:00 pm for Ms. Freedman to testify orally at this hearing. However, I do not have the jurisdiction to order that the respondent pay her fee to testify. The respondent complied with this order and the summons was issued to Ms. Freedman. The respondent advised Ms. Freedman would not testify if she would not be getting paid for her attendance. Ms. Freedman did not attend at the hearing.

Motion # 3

6The applicant requested that the respondent’s document brief be excluded as it was filed twelve days before the hearing and was in non-compliance with Rule 10 of the Tribunal’s rules. The applicant maintains the respondent should not be allowed to rely on its IE reports for the hearing. The applicant stated the respondent’s briefs and the reports are dated from 2008 – 2014 and the witnesses had not been prepared to testify in relation to all the reports within the respondent’s briefs. The respondent stated the applicant already had all reports in advance of this hearing. It would be procedurally unfair to not allow the respondent to rely on its own reports. I found the respondent’s IE reports could be admitted for the hearing by entering each report as an exhibit. The applicant had been previously served with these IE reports therefore it should not be surprised by their content. The respondent produced the documents it intended to rely on for this hearing on March 13, 2019 and therefore has complied with Rule 9.2 of the Tribunal Rules.

Motion #4

7The applicant requested several of the documents contained in the respondent’s document brief, volume 3 not be admitted at the hearing as they are irrelevant. The respondent stated it would only request tab 87 (correspondence from respondent to applicant) be admitted. On consent, this document was entered into the hearing record as exhibit 29.

Motion #5

8The respondent requested the applicant’s document brief filed on March 12, 2019 be excluded as it was not filed in accordance with the Tribunal’s Common Rules of Practice and Procedure. The applicant stated that all documents were served on the respondent in advance of the date required to file evidence for the hearing and that the applicant provided notice to the respondent regarding documents the applicant would be relying on. The respondent did not identify any new documents which had not been received prior to March 12, 2019, nor did it provide a reason for its exclusion. I did not exclude the applicant’s briefs. However, due to the volume of documents the parties submitted, I advised the parties that they would have to enter each document into the record which they are relying on as evidence for this hearing.

Motion #6

9The respondent requested that the applicant’s spouse not be able to testify as he was not identified as a witness until December 11, 2018. This was in non-compliance with the order dated September 10, 2018 which noted witness lists were to be submitted by the parties by November 30, 2018. The applicant stated there was a motion hearing held on February 26, 2019 in which the respondent raised a motion for the Tribunal to issue a summons for four attendant care service providers; one of them was the applicant’s spouse. The burden of proof remains with the applicant. Therefore, I allowed the applicant’s spouse to testify because to disallow him to testify would cause prejudice to the applicant and would outweigh any prejudice to the respondent.

Footnotes

1. 1Ontario Regulation 403/96 - Statutory Accident Benefits Schedule for Accidents on or After November 1, 1996
2. 2Exhibit 1 – Respondent’s Medical Brief, Volume 1, Tab 8C, CNRs of Dr. Chandrasekaran, at 1
3. 3Ibid, CNRs of Dr. Chandrasekaran from March 25, 2006 - October 4, 2007
4. 4Exhibit 21- Respondent’s Medical Brief, Volume 6, Tab 30E – Orthopedic IE assessment report of Dr. French (assessment completed on August 26, 2008), at 3
5. 5Exhibit 5 - Applicant’s Medical Brief, Volume 1, Tab 13, Independent Psychological Assessment Report of Dr. Kanagaratnam, dated May 8, 2011, at 8-9
6. 6Exhibit 9 - Applicant’s Document Brief Volume 1, Tab 6 - CNR (undated) of Dr. R. Richards
7. 7Exhibit 10 - Applicant’s Document Brief, Volume 1, Tab 7 – Letter from Dr. Malempati to Dr. Majl (neurologist), dated April 25, 2017
8. 8Supra, note 5, at 8-9
9. 9Exhibit 6 - Applicant’s Medical Brief, Volume 2, Tab 20, Report of Dr. J. Wong, dated June 5, 2013, at 9
10. 10Exhibit 11- Respondent’s Medical Brief, Volume 7, Tab 32 I, CAT IE Assessment Report of Dr. Gnam, dated February 22, 2017, at 5
11. 11Exhibit 6 - Tab 24, at 3 of Mental Behavioral CAT assessment report of Dr. D. Becker, dated July 8, 2016
12. 12Supra, note 10, at 4, 5
13. 13Exhibit 5 – Applicant’s Medical Brief, Volume 1, Tab 6 – Initial Psychological Assessment Report from Chronic Pain Solutions, dated October 28, 2009
14. 14Exhibit 6 – Applicant’s Medical Brief, Volume 2, Tab 24, Catastrophic Impairment Evaluation report by Omega dated July 8, 2016, at 4 which references February 24, 2010 IE report of Dr. Orme
15. 15Exhibit 26 - Respondent’s Medical Brief, Volume 6, Tab 30 L – Psychological IE Assessment Report of Dr. C. Heusser
16. 16Exhibit 27 - Respondent’s Medical Brief, Volume 6, Tab 30 P– IE Report of Dr. Heusser, dated October 21, 2013
17. 17Supra, note 5
18. 18Exhibit 5 – Tab 17. Report of Dr. Kanagaratnam dated January 5, 2012, at 2
19. 19Exhibit 5 - Tab 19. Treatment Progress Report of Dr. Kanagaratnam, dated January 17, 2013
20. 20Exhibit 6, Tab 22. Treatment Progress report of Dr. Kanagaratnam, dated October 20, 2014
21. 21Exhibit 6, Tab 23 – Treatment Progress report of Dr. Kanagaratnam, dated January 22, 2016
22. 22Exhibit 39, Respondent’s Medical Brief. Volume 3, Tab S. OCF-19, completed by Dr. H. Becker, dated July 8, 2016
23. 23Criterion 7 is noted under part 4 on the OCF-19 and notes: an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th^ edition, 1993, results in a 55 per cent or more impairment to the whole person.
24. 24Criterion 8 is noted under part 4 on the OCF-19 and it notes: an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder”.
25. 25American Medical Association, AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition. Copyright 2015, 1993 by the American Medical Association
26. 26Defined in s. 2(1.2) (g) 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. 2 of the Schedule as “a loss or abnormality of a psychological, physiological or anatomical structure or function.”
27. 27Supra, note 25, Classification of Impairments Due to Mental and Behavior Disorders, Ch. 14, at 301
28. 28Exhibit 6, Tab 24
29. 29Exhibit 6, Tab 27, Catastrophic Impairment Report: Review of S. 44 Insurer’s Examination Report of February 22, 2017, at 5 of 71
30. 30Exhibit 11, Respondent’s Medical Brief, Volume 7, Tab 32 F, G, H, I. Soma CAT IE Report
31. 31Ibid, Tab F, Independent Insurer’s Examination Occupational Therapy In-home Assessment report dated February 22, 2017, by Elyse Freedman
32. 32Exhibit 6, Tab 24, Occupational Therapy In Home Evaluation & One Day Situational Assessment report of Ms. Baboulas, at 7 of OT Evaluation Report
33. 33Exhibit 11, Tab F, at 18-19
34. 34Exhibit 11 - Tab 32 I. Psychiatric CAT IE Report of Dr. Gnam, dated February 22, 2017
35. 35Exhibit 6 - Tab 24, at 3. Mental Behavioural CAT assessment report of Dr. D. Becker dated July 8, 2016
36. 36Ibid, Tab 26 - Treatment Progress Report of Dr. Kanagaratnam, dated November 14, 2016, at 3
37. 37Exhibit 6, Tab 27 - Catastrophic Impairment Report, dated July 12, 2017 (Review of s. 44 Insurer’s Examination Report of February 2, 2017)
38. 38The GAF scale is an assessment tool found in the DSM-IV-TR
39. 39Exhibit 14 -Applicant’s Document Brief, Volume 1, Tab 4, at 25, CNR of Dr. Nagamuttu dated December 6, 2013
40. 40Exhibit 11 – Tab 32 I, at 5
41. 41Exhibit 11 - Tab 32 I, at 17, 18
42. 42Exhibit 3 – Business card of Dr. Pon Sivaji noting medical appointment on January 7, 2008.
43. 43Exhibit 6 - Tab 24, Catastrophic Impairment Summary & Analysis Report, at 3
44. 44Table 3, ch.4, at 142 of the Guides for rating emotional and behavioral impairments
45. 45Severe limitation impeding useful action in almost all social and interpersonal daily functions
46. 46Schedule for Rating Permanent Disabilities under the Provisions of the Labour Code of the State of California, January 2005
47. 47Exhibit 11 – Tab 32 I, Global Assessment of Functioning (GAF) to Percentage Whole Person Impairment (WPI) Conversion Table, at 27
48. 48Exhibit 6 - Tab 28. Two Retroactive Form 1’s dated November 24, 2016
49. 49Belair Insurance Company v. David McMichael, 2007 CanLII 17630 (ON S.C.D.C), at para 11
50. 50Exhibit 6 - Tab 28, at 22 of 67
51. 51Ibid, at page 7 of Assessment of Attendant Care Needs (Form 1) - Hourly rate of $11.23/hour based on level 1 (A)
52. 52Supra, note 50 at 25
53. 53Exhibit 11 - Tab 32F, at 35
54. 54Exhibit 29 – Correspondence from respondent to applicant
55. 55Angela Grigoroff v. Wawanesa Mutual Insurance Company, 2015 ONSC 3585
56. 56Vincent Dewitt v. State Farm Mutual Automobile Insurance Company, 2019 ONSC 2349
57. 57Bradley Michael Mulhall v, Wawanesa Mutual Insurance Company, ONSC 7495, December 18, 2015
58. 58FSCO jurisprudence referenced by the applicant: 1) Paraloganathan Nadescu and Zurich Insurance Company Limited (Commercial Business), FSCO A90-001538, January 22, 2016; 2) Shaun Edwards and Optimum Insurance Company, FSCO P16-0008, March 13, 2017; 3) T.N. and Personal Insurance Company of Canada, FSCO A06-000399, November 20, 2004
59. 59Financial Services Commission of Ontario – Professional Services Guideline, Superintendent’s Guideline No. 03/14, September 2014
60. 60Ontario Regulation 34/10 – Statutory Accident Benefit Schedule, effective September 1, 2010
61. 61Exhibit 11 – Tab 32 I, at 18
62. 62Ontario Regulation 664, R.R.O. 1990, Reg. 664