Citation: R.D. vs. Pafco Insurance Company, 2020 ONLAT 18-004113/AABS

Released Date: 04/06/2020 File Number: 18-004113/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:

[R.D]

Applicant

And

Pafco Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Robert Dagenais, Applicant

Joelle Malette, Counsel

For the Respondent:

David Murray, Counsel

Court Reporter:

Lisa Goulet

HEARD:

Combination hearing consisting of a portion in person and a portion conducted electronically. The hearing commenced on June 10, 2019 and concluded in writing on February 28, 2020.

OVERVIEW

1R.D., (the “applicant”) was involved in an automobile accident (“accident”) on February 12, 2012, and sought benefits from Pafco Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). In July 2016, the applicant applied to the respondent for a determination that his accident-related impairments met the definition of catastrophic (CAT) impairment under the Schedule. The respondent conducted insurer examinations (IEs) and determined that the applicant’s accident-related impairments did not meet the definition of CAT.

2The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The matter proceeded to a case conference but the parties were unable to resolve the dispute.

3An in-person hearing took place on June 10-14, 2019, in [ city 1 in Ontario], where I heard evidence from the applicant, his mother and Dr. Cohen, his family doctor. Unfortunately, there were a few procedural delays as the initial hearing room facilities booked by the Tribunal were insufficient to conduct the hearing. In addition, mid-way through Dr. Cohen’s testimony, an adjournment of the hearing was necessary because both parties were missing a large portion of Dr. Cohen’s clinical notes and records (CNRs).

4The examination of Dr. Cohen concluded by video-conference on July 16, 2019 and the in-person hearing continued on October 15, 2019 in [city 2 in Ontario], where I heard the testimony of Dr. Gagnon, psychiatrist for the applicant. The hearing proceeded in [city 3 in Ontario] on October 17 and 18, 2019, where I heard the testimony of Claudia Maurice, occupational therapist (OT) for the applicant and from Dr. Joseph, psychiatrist, and Starr Robinson, the respondent’s assessors. Closing submissions were made by teleconference on November 5, 2019 and additional written submissions were received on February 28, 2020.

PRELIMINARY ISSUE

5I have been asked to decide the following preliminary issue raised by the respondent:

(i) Is the applicant statute barred from proceeding with his claim for a housekeeping benefit for failing to dispute the respondent’s denial of the benefit within the two-year time period pursuant to section 56 of the Schedule?

ISSUES

6I have been asked to decide the following substantive issues:

(i) Did the applicant sustain a CAT impairment as a result of the accident, as that term is defined in s. 3.1 of the Schedule?

(ii) If the applicant is designated CAT, is he then entitled to housekeeping and home maintenance benefits from August 9, 2016 to date and ongoing in the amount of $100.00 per week?

(iii) If the applicant is designated CAT, is he then entitled to an attendant care benefit (“ACB”) in the amount of $1,530.69 per month from August 9, 2016 to date and ongoing?

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

RESULT

7I find as follows:

(i) The applicant is not statute-barred from claiming a housekeeping benefit for not disputing the respondent’s denial of same within the two-year time period pursuant to s.56 of the Schedule.

(ii) The applicant sustained a CAT impairment as a result of the accident in that he sustained a marked impairment under Criterion 8 in activities of daily living, social functioning, and deterioration in a work like setting (adaptation).

(iii) The applicant is entitled to a housekeeping benefit in the amount of $100.00 per week from the date of this decision, upon proof that the benefit has been incurred.

(iv) The applicant is not entitled to payment of an ACB in the amount of $1,530.69 per month from August 9, 2016 to date and ongoing.

(v) The applicant is not entitled to an award.

PROCEDURAL ISSUE

8The respondent opposed the applicant’s submission of a letter of Dr. Cohen to counsel for the applicant dated March 27, 2019 and a clinical note and record (“CNR”) of Dr. Cohen dated May 3, 2019 on the basis that the subject matter addressed in these documents goes beyond the scope of Dr. Cohen’s expertise as a family physician. The purpose of Dr. Cohen’s CNR dated May 3, 2019 was to go over the findings of Dr. Gagnon’s CAT assessment with the applicant. However, I note that the CNR goes beyond this as the doctor agrees with Dr. Gagnon and gives an opinion regarding the applicant’s functioning under the four spheres in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Guides). The purpose of Dr. Cohen’s letter to applicant’s counsel dated March 27, 2019 was to provide his opinion on whether the CAT reports of Dr. Gagnon and Ms. Maurice were consistent with his medical opinion regarding the applicant’s presentation. The respondent argued that Dr. Cohen is not trained in the Guides and his opinion is prejudicial as it amounts to “oath helping.” Further, the Court of Appeal has set out that courts and tribunals are to act like gatekeepers for the admission of evidence and that this evidence is prejudicial to the respondent.

9I agree with the respondent that these documents go beyond the scope of Dr. Cohen’s expertise as a family doctor. However, unlike the Courts, the same rules regarding evidence do not apply to administrative tribunals. I allowed the admission of both documents as I find them relevant to the issues in dispute. Further, they were served in compliance with the Licence Appeal Tribunal’s Common Rules of Practice and Procedure. Therefore, the respondent was not taken by surprise and should have anticipated that the applicant would be relying on them. Having said that, I assigned these documents and the opinions contained in them very little weight as I agree with the respondent that they go beyond the scope of Dr. Cohen’s expertise as a family doctor.

BACKGROUND

10The applicant was involved in an automobile accident on February 14, 2012, when he t-boned the passenger side of another vehicle which had illegally ran a stop sign. He was taken to [the hospital] where he was diagnosed with soft-tissue injuries to his thoracic spine and numbness in his right thigh. He also experienced low back and neck pain. He was discharged the same day and was advised to follow up with his family doctor. Of significance, the applicant had been involved in a prior accident on February 5, 2006 in which he sustained almost identical physical injuries.

11On July 15, 2016, the applicant submitted an application for a CAT determination under section 3(2)(f) of the Schedule (Criterion 8), which deals with mental and behavioural impairments. These impairments are assessed under Chapter 14 of the Guides.¹ Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The below chart sets out the four areas assessed for functioning and the levels of impairment.²

Area or Aspect of Functioning

Class 1: No Impairment

Class 2: Mild Impairment

Class 3: Moderate Impairment

Class 4: Marked Impairment

Class 5: Extreme Impairment

Activities of Daily Living

No impairment is noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some, but not all useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

Social Functioning

Concentration, Persistence and Pace

Adaptation (Deterioration in a work-like setting)

12In order to meet the threshold for CAT impairment under Chapter 14, an individual must have sustained a marked (class 4) or extreme (class 5) impairment as a result of the accident in any one of the four areas of functioning due to a mental or behavioural disorder.

13In this case, the applicant asserts that he suffers a marked impairment in activities of daily living, social functioning and adaptation due to a mental or behavioural disorder. The respondent takes the position that the applicant does not suffer a marked (class 4) or extreme (class 5) impairment in any one of the four areas of functioning due to a mental or behavioural disorder. Its assessors determined that the applicant sustained a mild (class 2) impairment in activities of daily living and a mild to moderate impairment (classes 2 to 3) in the three remaining spheres.

14A complicating factor in this case is that the respondent argues that the 2012 accident did not cause the applicant’s physical or psychological impairments. It maintains that the accident in February 2006 caused the applicant’s impairments.

15The applicant acknowledges that he suffered a similar physical impairment in the 2006 accident. However, he contends that in-between the 2006 accident and the 2012 accident, his issues had, for the most part, resolved and he was able to independently manage his daily activities and had minimal functional limitations. The applicant argues that the impairments from the 2012 accident caused a more severe physical and psychological impairment. Therefore, before I determine whether or not the applicant meets the threshold for CAT under Criterion 8, I will first address the issue of causation.

ANALYSIS

Did the 2012 accident cause the applicant’s physical and psychological impairments?

16As a result of the 2006 accident, the applicant suffered soft tissue injuries to his thoracic spine, numbness to his right thigh and he complained of depression to his family doctor on a few occasions. The evidence supports that these impairments interfered with the applicant’s activities of daily living and function to a certain degree. The physical impairments from the 2012 accident are identical but the applicant also complained of neck, lower back pain, migraine headaches and serious depression and anxiety.

17The parties agreed that the appropriate test to determine causation is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121. The applicant must prove that “but for” the automobile accident in 2012 he would not suffer the impairments which cause the complaints he puts forward as the basis for his application for a CAT determination. As per my reasons below, I find that the applicant meets the “but for” test and that the 2012 accident caused his current psychological impairment. While I agree that the physical impairments sustained in both accidents are practically identical and that he had expressed some minor depressive symptoms, I find that the 2012 accident exacerbated that physical injury which resulted in a more severe psychological impairment. This is supported by the medical records as well as by a comparison of the applicant’s pre- and post-2012 accident functional limitations.

18The respondent submitted the report of Dr. Ogilvie-Harris, orthopaedic surgeon, dated June 24, 2009, which was completed in relation to the 2006 accident. The report indicates that the applicant had the following 2006 accident-related physical impairments: pain and numbness in his right thigh and thoracic upper back pain (between the shoulder blades). These impairments affected the applicant’s ability to complete lifting, carrying and overhead tasks. Dr. Ogilvie-Harris indicated that the applicant could not do impact-related activities such as running or jumping. Further, the doctor noted that the applicant had not resumed hockey, basketball or golf because of the ongoing pain. Dr. Ogilvie-Harris opined that the applicant would continue to have pain in the future in the mid-thoracic area and indicated that “this represents a permanent and serious impairment of an important bodily function.” Moreover, the applicant would have ongoing functional limitations which would interfere with his daily activities (including social and recreational) and competitiveness in employment.

19While the above report supports that the applicant had almost identical physical impairments from the 2006 accident which were considered serious, Dr. Ogilvie-Harris’s report notes a few important facts about the applicant’s function following the 2006 accident. In particular, the report states that the 2006 accident did not affect the applicant’s ability to walk, or tolerance for sitting, standing, dressing and undressing. Further, the applicant would be restricted to light tasks in employment and heavy outdoor tasks and renovations. Significantly, following the 2012 accident, multiple assessors have determined that the applicant is seriously limited in walking, sitting, standing and he cannot work seven years post-accident. In my view, this supports that the 2012 accident exacerbated the applicant’s pre-existing physical impairment and caused the resulting psychological impairment.

20The respondent also relied on the clinical notes and records (CNRS) of Dr. Cohen between 2006 and 2011, which it contends supports its position that the 2012 accident did not cause the applicant’s impairments. Those records reflect that the applicant attended on approximately six occasions between those dates complaining of thoracic back pain, numbness in the right thigh and depression on one occasion. However, I was not persuaded that these records support the respondent’s position on causation as Dr. Cohen did not refer the applicant for psychological intervention as a result of the symptoms reported following the 2006 accident.

21The applicant testified that with the exception of some ongoing back pain, his 2006 accident-related symptoms had primarily resolved a year prior to the 2012 accident. Significantly, Dr. Cohen’s CNRs are silent between 2011 and the 2012 accident. In my view, this supports the applicant’s testimony that his symptoms had resolved prior to the 2012 accident. Dr. Cohen also testified that the applicant’s complaints from the 2006 accident had resolved prior to 2012.

22While I agree that the applicant suffered from a similar physical impairment and some symptoms of depression following the 2006 accident, I find that based on the evidence before me he was still able to function in his daily activities. The applicant testified that following the 2006 accident, he went back to school and obtained a diploma in a millwright program, he was able to work and obtain a promotion, he was able to drive, he was able to buy and maintain a home and a camper, he was in a seven year marriage and shared equal parenting responsibilities with his wife in caring for their two young children. With a few exceptions pertaining to his recreational pursuits, which I will address later, I find that the applicant consistently reported these details about his pre-accident life to the assessors as it is noted in their reports. Further, the above facts about the applicant’s pre-accident life were not refuted by the respondent.

23Following the 2012 accident, the applicant developed chronic pain and a much more severe psychological impairment. This is reflected in his inability to carry out his daily activities. As a result of the 2012 accident, the applicant has not returned to work, his marriage ended in divorce, his ability to care for his children has been affected, he lost his driver’s licence, his ability for sustained physical activity has been impacted (walking, sitting and standing) and his relationships have been affected. The medical evidence and witness testimony support that the 2012 accident has played a significant role in the deterioration of the applicant’s psychological status.

24Finally, both parties’ CAT assessors, Dr. Gagnon and Dr. Joseph, diagnosed the applicant with a psychological impairment as a result of the 2012 accident. Further, the report of Dr. Schacter, neurosurgeon, supports that the 2012 accident caused the applicant’s current psychological condition.

25For all of the above reasons, I find that the applicant has proven on a balance of probabilities that “but for” the 2012 accident he would not have sustained his current psychological impairment. I will now address the whether the applicant sustained a CAT impairment under Criterion 8.

Did the applicant sustain a CAT impairment under Criterion 8?

26Dr. Gagnon’s CAT assessment diagnosed the applicant with Somatic Symptom Disorder with predominant pain, severe, Driving Anxiety and Major Depressive Disorder, recurrent mild to moderate, chronic. Dr. Gagnon stated that the 2012 accident reactivated the applicant’s chronic pain condition but with more seriously impaired stress tolerance, poor coping, and more serious and complex psychological presentation. In explaining the effect of Somatic Symptom Disorder, he indicated that individuals with this disorder have an excessive preoccupation with pain and develop maladaptive thoughts resulting in serious difficulties regulating mood which results in depression, anxiety and irritability. They also have excessive, debilitating anxiety in relation to reinjuring themselves and psychological difficulties exacerbate the pain experience of the individual, leading to greater impairment and disability. As already highlighted, Dr. Gagnon determined that the applicant has a marked impairment in activities of daily living, social function and adaptation. Dr. Gagnon relied on the OT CAT assessment prepared by Ms. Maurice which supports that the applicant had significant functional limitations within the four spheres.

27Dr. Joseph agreed that the applicant suffers from Somatic Symptom Disorder, and Depression, however, he disagreed regarding the level of impairment in the four spheres. According to Dr. Joseph, the applicant suffered a mild impairment in activities of daily living and a mild to moderate impairment in the remaining three spheres. Dr. Joseph relied on the OT CAT IE of Ms. Robinson which determined that while the applicant presented with some restrictions, they would not interfere with his ability to participate in the majority of his pre-accident activities with activity modification and/or assistive devices.

28The respondent challenged the credentials of both Dr. Gagnon and Ms. Maurice in the application of the Guides and making CAT determinations, on the basis that they have not undergone formal training in the Guides and have less experience in completing CAT assessments than its assessors. Further, it argued that Ms. Maurice stepped outside the scope of her expertise as an OT in opining on the level of the applicant’s impairment under the four spheres. While Dr. Gagnon is not an expert in the Guides, the respondent did not challenge his credentials as a psychiatrist. I accepted his report and expert testimony as a psychiatrist. I agree with the respondent that Ms. Maurice does opine on the applicant’s level of impairment in her report. However, despite this, she does acknowledge that it is beyond her scope as an OT to opine on causation or provide a diagnosis. Despite this, I still accept her findings regarding the applicant’s functional limitations, which would be within her practice as an OT.

29I preferred the CAT assessments of Dr. Gagnon and Ms. Maurice over Dr. Joseph and Ms. Robinson. While I agree with the respondent that, on paper, its CAT assessors have more credentials, I find the respondent’s CAT IEs were not as thorough, were inconsistent and did not give a fulsome picture of the applicant’s post-accident functional limitations when compared to the rest of the evidence before me. For example, Dr. Joseph spent one hour doing the assessment and only half a page of his report is dedicated to the applicant’s emotional and psychological complaints as a result of the accident. Further, Dr. Joseph’s conclusions on all four spheres are brief and do not provide any analysis. Dr. Joseph acknowledged during cross-examination that he relied heavily on Ms. Robinson’s OT report. As I will highlight below, I find Ms. Robinson’s report inconsistent and contradictory in her identification of the applicant’s functional limitations.

30During cross-examination, the respondent challenged Dr. Gagnon about his accuracy about the applicant’s baseline and apportionment in his ratings under the four spheres. Dr. Gagnon had relied on the applicant’s self reports that he had fully recovered from the 2006 accident when the 2012 accident occurred. This was also supported by a report of Dr. Cohen to the applicant’s long-term disability insurer. The respondent highlighted some pre-accident CNRs from Dr. Cohen between 2009 to 2011 wherein the applicant complained of ongoing pain, difficulty playing with his children and, on one occasion, depression. Dr. Gagnon acknowledged that if the applicant had not fully recovered by the 2012 accident, it could impact the baseline and findings regarding apportionment. However, overall, it would not impact his findings regarding functional impairment from a psychological perspective.

31I find that the applicant and his family doctor have consistently reported that the applicant had recovered from his impairments from the 2006 accident by the date of the 2012 accident. The fact that there are a few CNRs which note complaints one to two years prior to the 2012 accident does not, in my view, support the respondent’s position. Further, the respondent did not submit any psychological assessments from the 2006 accident to support its theory that the applicant suffered from a significant psychological impairment as a result of the 2006 accident. Therefore, I accept Dr. Gagnon’s findings when viewed with all of the other evidence.

ACTIVITIES OF DAILY LIVING

32I find that the applicant has a marked impairment in the sphere of activities of daily living as a result of his accident-related psychological impairment.

33The Guides specify that activities of daily living include: self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep and social and recreational activities. Any limitation in these activities should be related to the person’s mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual’s overall situation. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.³

34Dr. Gagnon’s CAT assessment supports that the applicant has a marked impairment in activities of daily living. Dr. Gagnon indicates that on bad days, the applicant struggles with self care and personal hygiene due to poor motivation. His ability to drive is impaired by his anxiety and psychological disorder with pain and his libido is poor. His ability to travel is limited as he has fear as a passenger and discomfort sitting in a vehicle. His sleep has improved but he continues to experience fragmented sleep and fatigue throughout the day which interferes with his daily routine, child care and household responsibilities.

35By contrast, Dr. Joseph determined that the applicant has a mild impairment in that the applicant “gets help with cleaning and laundry. He pays his bills. He is able to care for himself. He can use the telephone. He lost his licence and cannot drive.” This concludes Dr. Joseph’s analysis with respect to the applicant’s activities of daily living. I find that Dr. Joseph greatly underestimates the applicant’s impairment and his reasoning is brief and contradictory

36Further, I preferred the evidence of Ms. Maurice over Ms. Robinson’s as I found the latter to be inconsistent and lacking in detail. Ms. Maurice’s examination concluded that the applicant had significant functional limitations in completing his activities of daily living. For example, he struggled with self-care and feeding and the consistency in which he could complete these tasks was dependent on weeks when he had his children. Further, physical testing revealed that his range of motion was restricted to the point that he is physically unable to carry out the majority of his activities of daily living. He could not carry out his housekeeping and home maintenance tasks and heavily relied upon his mother and girlfriend for support. Ms. Robinson’s report states that the applicant demonstrated restrictions in range of motion in his neck, shoulders and lumbar spine that would reduce his ability to fully participate in his activities of daily living. However, she discounts this testing and indicates that the applicant’s function was not consistent between formal and informal observations. What I found lacking was an explanation of the observations she made that were inconsistent.

37I find the applicant’s activities of daily living have been seriously impacted by his accident-related psychological impairments. In my view, when a comparison of the applicant’s pre and post-accident activities is undertaken, it is obvious that he is significantly impeded from carrying out the majority of his pre-accident activities of daily living in any meaningful way.

Self-care & Personal Hygiene

38Prior to the accident, the applicant was independent in his personal care and hygiene. Post-accident, he is able to manage these tasks through pacing and through the use of assistive devices, however, his routines are not consistent. For example, he testified that he will wash his hair every four days because overhead reaching is painful for him and he uses a stool and grab bars in the bathroom for extra support. The applicant testified that on bad days he neglects self care due to poor motivation and it takes him much longer to complete these tasks then it did pre-accident. I find that the applicant’s ability to independently and efficiently manage his self-care has been impeded by his accident-related impairment as he does not carry out these routines as efficiently as he did pre-accident, it takes him longer and at times he lacks the motivation to complete these tasks because of his psychological impairment. The respondent relied on Ms. Robinson’s report, which notes that the applicant is independent with self care and that his function had improved as he is able to get up and brush his teeth everyday. Further, despite the fact that the applicant uses assistive devices which assist him in completing self-care activities, Ms. Robinson still comes to the opinion that he is fully independent. In my view, Ms. Robinson did not give a fulsome analysis of the applicant’s limitations in this domain.

Communication

39I find the applicant’s ability to communicate effectively has been significantly impeded by his accident-related psychological impairment. Pre-accident, the applicant and his mother describe his personality as “happy-go-lucky.” Post-accident, the applicant has become angry, bitter and confrontational which, in my view, supports that he would have difficulty effectively communicating with people in the community. The applicant testified that since the accident he has gotten into several fights with family members, friends and was short-tempered with his ex-wife and ex-girlfriend. The applicant reported to Ms. Maurice that he has punched holes in walls and thrown things out of anger and frustration. Post-accident, he gets into fights with people over trivial things and holds grudges. The change in the applicant’s personality post-accident was supported by the testimony and CNRs of Dr. Cohen as well as by his mother. I found their evidence pertaining to this consistent and persuasive. By contrast, Dr. Joseph determined that the applicant could communicate because “he could use his phone.” In my view, I find Dr. Joseph’s conclusions unhelpful and lacking in substance and analysis. The fact that the applicant can use his phone does not support that he can communicate effectively. He also heavily relied upon the report of Ms. Robinson yet his conclusions do not align with many of the findings outlined in her report. For these reasons, I did not find Dr. Joseph’s reasoning and analysis convincing.

40Both OT reports noted the applicant’s problems with anger. Ms. Maurice’s report indicates that the applicant is angry and irritable, he has a short fuse which has impacted his relationships and he copes by throwing things and punching holes in walls. Ms. Robinson’s report indicates that the applicant was angry and irritable to the point where she felt uncomfortable completing the IE at first. Regardless, the assessment proceeded and the applicant continued to express anger and irritation throughout the assessment. Despite this fact, when opining on the applicant’s emotional presentation, she concludes that the applicant presented with no emotional or behavioural issues. In my view, not only is Ms. Robinson’s report inconsistent, it conflicts with every other assessor’s findings regarding the applicant’s emotional presentation.

Mobility – Driving and Walking

41The applicant’s family doctor restricted the applicant’s driver’s licence from 2013 to 2018 for reasons connected to his physical impairment. The loss of his licence has had a huge impact on the applicant’s psychological well being. It has resulted in social isolation and has interfered with his ability to navigate the community and the ability to independently carry out many of his daily activities. He has been unable to undertake simple tasks such as grocery shopping, attending medical appointments and driving his children to and from their activities. This has resulted in sadness, anger and helplessness. The applicant has had to rely on his mother and ex-girlfriend for transportation. In addition, the applicant has also been diagnosed with driving and passenger anxiety which is directly connected to his psychological impairment and impedes his ability to drive.

42The Guides specify that consideration must be given to the individual’s overall unique circumstances in understanding the impact of any functional limitation and the degree of that limitation. The applicant lives in [city 1 in Ontario]. Losing your licence in a place like [city 1 in Ontario] would have a much bigger impact psychologically than if the applicant lived in Toronto and had access to an efficient public transit system. To further complicate things, the applicant is limited in his physical ability to walk, which is also related to his somatic symptom disorder. I find the applicant’s inability to drive a car and walk has been significantly impeded by his accident-related impairment.

43The respondent argued that the fact that Dr. Cohen reinstated the applicant’s licence in 2018 is proof that the applicant’s condition has improved. Further, the applicant’s endurance for walking has increased. Dr. Cohen noted some improvements in both the applicant’s physical and psychological state in his CNRs from 2017 to date. The respondent contends that the fact that the applicant had improved is proof that his impairment is not permanent which is a requirement for CAT cases. The respondent submitted Allen v. Security National Insurance Co./ Monnex Insurance Mgmt. Inc., [2016] O.F.S.C.D. No.211, in support of its position that an adjudicator’s findings should be made based on a whole picture approach throughout time (not as of the dates of when the assessments occurred but as of the date of the hearing). I agree with the respondent that the date of the CAT determination should be made based on the individual’s status as of the date of the hearing. However, I find the fact that the applicant’s licence had been reinstated irrelevant to the present analysis as he had not resumed driving by the date of the hearing. Indeed, he still has driving anxiety which he has yet to overcome.

44In addition, while Dr. Cohen’s recent CNRs note improvements, the doctor opined that these improvements did not affect the applicant’s level of disability or overall function. As far as the applicant’s increased endurance for walking, I find that the applicant has little choice but to walk as this has been his only mode of transportation. For example, the applicant has to walk to Dr. Cohen’s office once a month to have his prescriptions refilled out of necessity. Therefore, I do not find his functional ability in this domain to have improved in any significant way.

45Finally, I found Ms. Robinson’s opinion regarding the applicant’s functional ability to walk wholly inconsistent. In her report, Ms. Robinson notes that the applicant is functionally limited in sitting, standing, bending, kneeling, squatting and walking. For example, he walked around his home using furniture for external support and a cane for ambulating outside. In my view, Ms. Robinson’s conclusions are contradictory as she determines that the applicant has no functional limitations as he can walk eight blocks (yet at a very slow pace because of back pain). In her view, the applicant’s presentation is self-limiting. This conflicts with Dr. Cohen’s testimony that he observed the applicant ambulate in the [city 1 in Ontario] mall without the applicant knowing and he compared the applicant’s mobility to that of a senior citizen. Therefore, I find the applicant’s ability to walk has been significantly impeded.

Sexual Function

46The evidence regarding the accident’s impact on the applicant’s sexual function has fluctuated and has been reported to assessors in an inconsistent fashion. Therefore, it is difficult to determine the exact nature of his limitation in this domain.

Sleep

47The applicant has consistently reported to assessors that his sleep is severely fragmented resulting in chronic fatigue which also affects him psychologically and has affected his functional limitations. Despite the fact that the applicant reported poor sleep to Dr. Joseph and Ms. Robinson, they both overlook the impact of this on the applicant in their reports, as they do not address it. I find that the applicant’s sleep has been significantly impeded.

Feeding

48Prior to the accident, the applicant would cook his own spaghetti sauce, stews, hamburgers, make his own pizzas and bbq chicken and steaks. The applicant’s ability to make healthy and nutritious meals has been impacted by the accident. The applicant testified that, post-accident, when he has his kids, he makes pre-packaged meals such as Hamburger Helper, Kraft dinner or orders takeout. In the alternative, he has relied on his mother for assistance with meal preparation.

48Ms. Robinson concludes that the applicant can independently prepare meals for him and his children. Ms. Robinson indicates that the applicant uses “simplification techniques” as he now cooks Kraft dinner, Hamburger Helper and uses a crock pot and orders takeout. I find Ms. Robinson overlooks the fact that the applicant is not making healthy meals in lieu of these “simplification techniques”. In addition, when the applicant’s children are not with him, he lacks the motivation to cook. Therefore, I find that his functional ability with respect to feeding has been significantly impeded.

Housekeeping and Home Maintenance

49Prior to the accident, the applicant shared equally in the responsibility for housekeeping and was responsible for home maintenance tasks such as fixing things, shovelling the driveway and mowing the lawn. Post-accident, the applicant has been restricted in carrying out the majority of his housekeeping and home maintenance tasks. This is supported by both Ms. Maurice and Ms. Robinson, as they both note he is unable to complete most tasks. The Guides specify that when assessing an individual’s ability to complete tasks, attention must also be given to the efficient completion of tasks. For example, Ms. Robinson’s report describes a typical day for the applicant post-accident where the applicant spends from early morning until lunch cleaning his kitchen and this does not include mopping the floor or scrubbing tiles. In my view, this is not the timely completion of a task. Further, in her report, Ms. Robinson indicates that the applicant can lift up to 10 lbs. Therefore, he can assist carrying groceries into the home by carrying one thing at a time (a bag of milk, a bag of potatoes, a case of water). In my view, I do not find that this would equate to the efficient completion of a task.

50Ms. Robinson notes that the applicant can dust and spot clean but is unable to independently complete the remainder of his housekeeping and home maintenance chores and that he requires help from his mother and ex-girlfriend to complete these tasks. Despite all of these functional limitations, Ms. Robinson concludes that the applicant can carry out his daily activities with modifications and assistive devices. The applicant testified that he got a new snow blower and lawn mower with push starts and has on occasion had to complete these tasks, which results in pain. I do not find this to be evidence that the applicant can efficiently complete these tasks. In my view, the fact that the applicant requires modifications and assistive devices conflicts with his ability to independently carry out tasks as a result of his accident-related impairment. As a result, I find that his ability to carry out his housekeeping tasks has been significantly impeded.

Social and Recreational Activities.

51There is evidence that the applicant has maintained two close friends and a friendship with his ex-girlfriend whom he goes out for coffee with and plays cards. I believe the applicant’s evidence that he had a much wider social network prior to the accident and that this area of his function has been impacted.

52The respondent challenged the applicant’s credibility with respect to how he reported the impact of the accident on his social and recreational activities. For example, the applicant reported that pre-accident he enjoyed camping at his trailer, golfing, fishing, playing basketball and hockey and he no longer participates in these activities. However, the report of Dr. Ogilvie-Harris in 2009 noted that the applicant was limited in these activities as a result of the 2006 accident. The applicant testified that in the year prior to the 2012 accident he had resumed playing golf but with modifications as he now needed to use a golf cart.

53I agree that there are inconsistencies with respect to the applicant’s reporting of his pre-accident recreational pursuits. While I doubt that the applicant did indeed play hockey and basketball prior to the 2012 accident, I do not find that this discredits his overall testimony. I believe the applicant that he enjoyed going to his trailer with his family pre-accident and was back to golfing and that he lost the ability to do so as a result of accident-related impairment and the loss of his licence.

54The respondent also submitted surveillance evidence which I did not find helpful in challenging the applicant’s credibility. The respondent conducted surveillance between August 2013 and June 2014 over eight days. On a few occasions the applicant is viewed walking with a cane with an obvious limp. In my view, the surveillance is not helpful to the respondent as it shows someone who appears physically disabled. The respondent also referred to a few Facebook pictures where the applicant is smiling with his children, which, it suggests, proves the applicant is happy and carrying on a normal life. In my view, a few snapshots in time do not show the complete picture and are inconsistent with how the applicant presented at the hearing and how he was described by his mother, family doctor, psychiatrist and several other assessors. Therefore, I have given the surveillance evidence very limited weight.

55For all of the above reasons, I find that the applicant has proven on a balance of probabilities that he has a marked impairment in activities of daily living as a result of his accident-related psychological impairment. Although a finding of one marked impairment is enough to be CAT, for clarity, I will address the remaining spheres.

SOCIAL FUNCTIONING

56I find the applicant has a marked impairment in social functioning.

57According to the Guides, this area of functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. It is not only the number of aspects in which social functioning is impaired that is significant, but also the overall degree of interference with a particular aspect or combination of aspects.⁴

58Dr. Gagnon’s CAT assessment determined that the applicant sustained a marked impairment in social functioning. In his report, he notes that post-accident, the applicant is angry, bitter and confrontational. Further, the applicant has little tolerance for other people’s problems and his preoccupation with pain interferes with his ability to make new friendships. Dr. Gagnon agrees that the applicant’s marriage ended as a direct consequence of the applicant’s psychological functioning. All of the CAT assessments were conducted when the applicant was still in a relationship with his ex-girlfriend. However, in his report Dr. Gagnon predicted that the applicant was at risk of losing this relationship because of the applicant’s inability to maintain his anger and impulsive and upsetting behaviour during arguments. Dr. Gagnon’s predictions about the applicant losing this relationship became a reality in January 2019 which supports that the applicant’s social functioning is markedly impaired as a result of his accident-related psychological impairment.

59In determining that the applicant has a mild to moderate impairment in social functioning, in his CAT IE, Dr. Joseph indicates the applicant “states he is irritable, can go in a crowd. He meets friends once a week. He gets irritable easy. He has a good relationship with girlfriend and parents.” As I highlighted earlier, I find Dr. Joseph’s conclusions brief and lacking in analysis.

60The applicant’s functional limitations have also contributed to his psychological impairment. While the functional imitation under the Guides has to be related to a mental impairment, in my view, everything is connected and cannot be viewed in isolation. For example, the applicant’s inability to return to work because of pain and depression led to his inability to provide for his family financially and his ability to contribute to the household. This led to the breakdown of his marriage, which has also had an impact on his depression, anxiety and inability to function. I found the applicant’s testimony about his inability to work post-accident and the impact on his self-esteem, confidence and marriage to be credible.

61As indicated above, post-accident, the applicant is now bitter, angry, confrontational, anxious and depressed, which has had an impact on almost all of his relationships.

62The applicant attributes his divorce from his wife to his accident-related impairments. The applicant and his wife were childhood sweethearts. They married in 2005 and separated in December 2013, less than a year following the accident. I find that the evidence supports that the breakdown in the applicant’s marriage is attributed to the 2012 accident. In 2012, the applicant started seeing Ms. Helen Howard, psychotherapist, due to his accident-related emotional difficulties and depression. In Ms. Howard’s summary report dated July 14, 2012, the applicant reported being happily married for seven years. He indicated that he worried about the impact the accident was having on his marriage and his ability to provide for his family financially. His wife had to quit her law clerk program to get a job to provide for the family. He was worried about losing his home and expressed guilt that his wife had to take on most of the responsibilities. He reported that his sleep had been compromised and that he was unable to sleep in the same bed as his wife and that his pain affected his ability to be intimate. He reported being short-tempered with his wife, irritable and frustrated because of constant pain and was worried that his wife would leave him. He often feels depressed and discouraged about the future. I found the applicant’s testimony in relation to the breakdown of his marriage consistent with what he reported to Ms. Howard. Further, this consistency is also referred to in the other reports.

63Ms. Howard’s report also referenced that shortly following the accident, the applicant had a wide social network of friends and family for support. However, since then, this network has slowly deteriorated because of the applicant’s anger, isolation and confrontational attitude.

64The applicant’s status in this sphere seemed to fluctuate when he entered into a new relationship with a new woman in 2015. He was able to maintain this relationship for four years and it had a positive impact on his life. However, this relationship also ended in January 2019 because of the applicant’s accident-related psychological impairment.

65Following both CAT assessments, the applicant’s relationships with his mother and daughter have also deteriorated. The applicant testified that prior to the accident, he and his mother were best friends and would spend a lot of time together. The applicant and his ex-wife bought a house two doors down from his parents and he had bought a trailer which he stored on his parents’ land. Since the CAT assessments were completed, the applicant no longer talks to his mother and she is no longer welcome in his home.

66The applicant’s mother corroborated her son’s testimony about their relationship and the differences she has seen in her son post-accident. She also testified that her son’s impairment is having a negative impact on her granddaughter as the applicant’s daughter is seeing a therapist at school because she was self-harming. The applicant’s mother was in tears when she gave this testimony. This was communicated to her through her ex-daughter-in-law, who she has maintained a close relationship with. The reason behind the applicant’s daughter’s behaviour was she no longer wants to go to her father’s house because of his anger and she does not want to make him upset. The respondent cautioned me on accepting this evidence as the information is coming from a secondary source. I accept the applicant’s mother’s testimony, as I find she testified in a straightforward, genuine and sincere manner. Further, the applicant’s ex-wife and ex-girlfriend were supposed to testify at the hearing, but he decided not to call them for efficiency. The respondent agreed that it would not argue that an adverse inference should be made by the applicant’s failure to call these witnesses. I do not make a negative inference from the applicant’s failure to call these two witnesses. I find that they likely would have provided additional valuable information about the accident’s impact on the applicant’s life.

67Dr. Cohen also testified about the applicant’s anger and irritability and that his relationship with his patient has been tumultuous. The applicant’s anger and confrontational behaviour is supported in Dr. Cohen’s CNRs, is referenced in several assessments and was supported by the applicant’s testimony. Dr. Cohen indicated that he wanted to fire the applicant as his patient due to his belligerent behaviour but did not because of the lack of family doctors in [city 1 on Ontario].

68For all of the above reasons, I find the applicant has met his onus on a balance of probabilities that he has a marked impairment in social functioning.

ADAPTATION

69I find the applicant has a marked impairment in adaptation.

70The Guides define impairment as the repeated failure to adapt to stressful circumstances, in the face of which “the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate or having difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.” ⁵ By definition, impairment in adaptation affects the ability to function across all activity areas. Regarding activities of daily living, their quality is judged by their independence, appropriateness, effectiveness and sustainability.

71As I have already highlighted, I have determined that the applicant has a marked impairment in activities of daily living and social functioning. Further, the applicant has not been able to return to work post-accident because of his physical and psychological impairment. I agree with Dr. Gagnon that the applicant’s limitations would carry over into his ability to adapt in the workplace.

72Dr. Gagnon opined that the applicant has a marked impairment in adaptation as his psychological difficulties and preoccupation with pain would limit his ability to get and keep employment. The applicant would display impulsive decision making, and his inability to regulate emotions and anger would cause significant disruption in the workplace. Further, his poor social skills and defensive and argumentative demeanor would result in conflict with coworkers/superiors and his customer service skills would be impacted. He would likely have poor attendance because of pain, and his anxiety and preoccupation with pain would likely result in him being withdrawn and distracted. Impaired concentration and attention would likely result in serious mistakes and be a safety concern for others. He would not be able to adapt to change in the workplace or cope with adversity in a constructive manner. In addition, the applicant would not be competitive in the workforce as he would not present well in an interview as a result of impaired social functioning. In Dr. Gagnon’s opinion, these impairments are serious and permanent – prognosis is poor. I prefer Dr. Gagnon’s rating in adaptation over Dr. Joseph’s as it is more consistent with all of the evidence before me.

73In addressing limitations in employment, Ms. Robinson quotes from a post-104 assessment of Dr. Yee, orthopaedic surgeon, which notes that the applicant would have functional limitations in employment tasks that require prolonged standing, repetitive bending, lifting, carrying and low-level work. Dr. Yee does not address any psychological components in his report. Ms. Robinson was aware that the applicant had not returned to work since the accident, yet she opines that he has partial functional limitations in this domain. In addition, psychological assessments were provided as part of the document review supporting that the applicant cannot work from a mental behavioural perspective, yet Ms. Robinson prefers the report of an orthopaedic surgeon with no explanation. I find it perplexing that Ms. Robinson would rely on the report of an orthopaedic surgeon in assessing the applicant under Criterion 8.

74In assigning his rating for the applicant under this domain, Dr. Joseph opines, “There is no evidence that he is unable to adapt to stressful situations. He can make some decisions but with some difficulty.” That is the end of Dr. Joseph’s discussion on this topic. Once again, I found Dr. Joseph’s CAT IE lacking in analysis. In addition, he admitted during cross-examination that he was not aware that the applicant was in receipt of long-term disability, CPP and was being paid a post-104 week income replacement benefit by the respondent. In my view, these are important details to overlook when determining whether an insured would have challenges in adapting to work-like settings as a result of a psychological impairment.

75I find the applicant has a marked impairment in the sphere of adaptation.

Is the applicant statute barred from proceeding with his application for a housekeeping benefit for failing to dispute the benefit within the two-year limitation period?

76I find the applicant is not statute barred from claiming a housekeeping benefit for the following reasons.

77Section 56 of the Schedule requires that an insured dispute the insurance company’s denial of a benefit within two years after the insurer’s refusal to pay a benefit or amount claimed.

78The applicant’s claim for a housekeeping benefit was denied on March 18, 2012, on the basis that his policy did not include optional benefits and only individuals who have sustained a CAT impairment are eligible to claim a housekeeping benefit. During cross-examination, the applicant acknowledged that he received this denial and that he understood that the benefit was denied because he had not purchased optional benefits and at that time had not been deemed CAT.

79The applicant filed his application with the Tribunal disputing his entitlement to the housekeeping benefit on May 11, 2018. The respondent raised this preliminary issue because the applicant did not dispute the March 2012 denial within the two-year limitation period pursuant to s.56 of the Schedule.

80Following the conclusion of this hearing, the Court of Appeal released its decision in Tomec v. Economical Mutual, 2019 ONCA 882 (Tomec). In Tomec, the court determined that the limitation period provided for in the Schedule is not a hard limitation period and is subject to the rule of discoverability because it is directly tied to the cause of action that an insured can assert when denied benefits. The court stated that a hard limitation period in the case before it was contrary to the purpose of the Schedule, as it is consumer protection legislation and if applied it would lead to an absurd result. The Court of Appeal was guided by the principles set out in the recent decision of the Supreme Court of Canada in Pioneer v Godfrey, 2019 SCC 42 (“Pioneer”). Since Tomec is directly relevant to whether the applicant is statute barred from claiming a housekeeping benefit, the Tribunal requested that the parties file additional submissions.

81The respondent argued that Tomec was wrongly decided by the Court of Appeal and that the two-year limitation period provided for in s.56 of the Schedule is a hard limitation period and the doctrine of discoverability does not apply. Further, the present case is distinguishable from Tomec as that case involved a 2008 accident, the parties agreed that the insured in that case was CAT and it was governed by another version of the Schedule. Further, the applicant has not submitted any evidence to successfully invoke the doctrine of discoverability.

82The applicant maintains that his entitlement to the housekeeping benefit is only triggered in the event that he is deemed to be CAT. The respondent’s position that a hard limitation applies would result in an absurd result as the applicant would be forced to dispute a benefit when he was not legally eligible to claim it. Moreover, Tomec is determinative of the preliminary issue raised by the respondent. Therefore, the applicant’s entitlement to claim a housekeeping benefit has not expired. For the reasons that follow, I agree with the applicant.

83I disagree with the respondent that Tomec is distinguishable from the case before me. To provide context, the Tomec case involved a 2008 accident which was governed by a previous version of the Schedule. The 1996 Schedule provided that an insured could claim a housekeeping benefit for the first 104 weeks following an accident if the individual sustained an accident related impairment which affected their ability to complete housekeeping tasks. To be eligible for the housekeeping benefit beyond the 104week mark, an individual had to be deemed CAT. By contrast, the version of the Schedule applicable to this case restricted entitlement to housekeeping benefits to only those who are deemed CAT or for those who purchased optional benefits.

84In Tomec, the insured’s entitlement to a housekeeping and attendant care benefit was denied in September 2010 on the basis that the 104 week-mark had expired and she had not been deemed CAT. The parties agreed that the insured was CAT five years later, however, the insurer maintained that its denial from 2010 applied and the claimant was not entitled to future attendant care and housekeeping benefits. This Tribunal and the Divisional Court determined that the limitation period provided for in the Schedule was a hard limitation period and the rules of discoverability did not apply. Therefore, despite the insured’s CAT status, her entitlement to claim these future benefits was barred. I agree with the applicant that the facts relating to the denial of the housekeeping benefit in Tomec are practically identical to this case. The insured in Tomec could not dispute the denial of the benefit in 2010 because she was not legally eligible to claim it because she was not CAT. Similarly, the applicant in this case could not dispute the denial of his entitlement to the housekeeping benefit in March 2012 because he had not been deemed CAT and did not apply for CAT status until July 5, 2016, three years after the benefit was denied.

85The respondent submitted numerous authorities in support of its position that s.56 of the Schedule provides a hard limitation period and is not subject to the doctrine of discoverability. I found the case law relied upon by the respondent outdated as the decision makers did not have the benefit of the SCC’s decision in Pioneer to help guide their analysis. Finally, I agree with the rationale set out in Tomec that the Schedule is consumer protection legislation and forcing insureds to dispute benefits when they are not legally entitled to claim a benefit creates an absurd result, is a barrier to accessing accident benefits and is contrary to spirit of the Schedule.

Is the applicant entitled to a housekeeping benefit from August 9, 2016 to date and ongoing?

86The applicant is entitled to a housekeeping benefit in the amount of $100.00 per week from the date of this decision, upon proof that the expense has been incurred.

87Section 23 of the Schedule sets out that an insurer shall pay up to $100 per week for reasonable and necessary housekeeping and home maintenance expenses incurred by an insured person if they sustained a CAT impairment. To be eligible, the insured’s impairment has resulted in a substantial inability for the insured to perform housekeeping and home maintenance tasks that he or she normally performed before the accident.

88The applicant’s entitlement to the benefit rests on whether he sustained a CAT impairment. Since I have determined that he has, I find that the evidence overwhelmingly supports that the applicant has a substantial inability to complete his housekeeping and home maintenance tasks as a result of his accident related impairments. As already highlighted in my analysis under Activities of Daily Living, both the applicant’s and respondent’s OTs agreed that the applicant is significantly limited in carrying out his housekeeping and home maintenance tasks as a result of his accident related impairments. These functional limitations were outlined in both Ms. Maurice’s and Ms. Robinson’s reports and the applicant has been consistent in reporting his limitations to all assessors. The applicant is unable to carry out housekeeping tasks such as sweeping, mopping floors, vacuuming and cleaning the bathroom. Further, the tasks that he has been able to complete are not done in a timely manner and have required the applicant to use assistive devices.

89The applicant is also functionally limited in his ability to complete home maintenance tasks such as doing yard work, mowing the lawn and shovelling snow. Post-accident, the applicant has had to rely on his mother, daughter, ex-girlfriend and father for assistance. Based on the evidence before me, I find that the benefit is reasonable and necessary as a result of the applicant’s accident related impairments. However, the applicant has not incurred any past expenses in relation to this benefit, which is a requirement under s.3(7)(e) of the Schedule.

90Section 3(7)(e) of the Schedule provides the following criteria an insured person must meet in order to satisfy that an expense in respect of a good or service has been “incurred:”

(i) The insured person has received the goods or services to which the expense relates;

(ii) The insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense; and

(iii) The person who provided the goods or services,

a) did so in the course of their employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

b) sustained an economic loss as a result of providing the goods or services to the insured person.

91The applicant argued that he did not have to incur past housekeeping and ACBs in order to be entitled to payment of the benefits. He relied on the FSCO Appeal decision in Belair Insurance Company v. David McMichael, FSCO PO5-00006, March 16, 2006 (“McMichael”) and Pucci v. Wawanesa Mutual Insurance Company, 2019 ONSC 1706 (“Pucci”) as authority.⁶ In McMichael, Delegate Makepeace found that an insured does not need to receive the service to be entitled to the expense as it would shield the insurer from its obligation to pay the benefit. This decision was upheld by the Divisional Court in McMichael v. Belair Insurance Co. (2007), 2007 CanLII 17630 (ON SCDC), 86 O.R. (3d) 68 (Div. Ct.). In Pucci, the court agreed with the McMichael Divisional Court decision regarding the interpretation of the definition of incurred. I find these decisions distinguishable from the present case as McMichael dealt with a 1998 accident, which dealt with a previous version of the Schedule that did not apply the same rules to defining an incurred expense. I also find Pucci distinguishable as the court deemed the expense incurred pursuant to s.3(8) of the Schedule as it determined that the insurer had unreasonably withheld and delayed payment of the ACB. In Pucci, there was a nine-month delay in the insurer completing its CAT assessment and the court determined that the applicant should not have to fund her own services during this time. In the present case, I have not determined that the respondent unreasonably withheld or delayed payment of benefits.

92The applicant did not submit any evidence that satisfied that he incurred housekeeping expenses. Therefore, I find the applicant is not entitled to payment of past housekeeping benefits from August 9, 2016 to date.

93The applicant is entitled to payment in the amount of $100.00 per week for a housekeeping and home maintenance benefit upon proof of incurred expense.

Is the applicant entitled to an ACBs in the amount of $1,530.69 for the period of August 9, 2016 to date and ongoing?

94For the following reasons, the applicant is not entitled to payment of past ACBs in the amount of $1,530.69 per month from August 9, 2016 to date.

95Section 19 of the Schedule provides that an insurer is required to pay an ACB for all reasonable and necessary expenses incurred on behalf of an insured person as a result of an accident for services provided by an aid or attendant. An assessment of attendant care needs (“Form 1”) prepared by an OT sets out the services and amount of care an individual requires as well as the monthly amount payable. An insured who is not deemed CAT is entitled to an ACB for only the first 104 weeks following the date of the accident.

96Section 42(5) of the Schedule provides that an insurer may, but is not required to, pay an expense incurred before a Form 1 that complies with this section is submitted to the insurer.

97In support of his claim for ACBs, the applicant relies on a letter of Ms. Maurice dated December 17, 2018 enclosing two Form 1s.⁷ The letter indicates that the Form 1s reflect the applicant’s needs at the time of his June 2016 CAT OT assessment. Ms. Maurice indicated in her correspondence that in order to determine the applicant’s current needs, another assessment would be required. In my view, I take this to be an application for retroactive ACBs which I will now discuss. The focus of both parties’ submissions on the ACB issue addressed the definition of incurred, not the applicant’s entitlement to the benefit. The applicant did not provide any explanation regarding his delay in applying for the benefit. Further, pursuant to s. 42(5), the respondent is not required to pay an expense prior to the submission of a Form 1, which in this case was December 17, 2018. Therefore, the respondent is not liable to fund ACBs prior to that date. An additional problem in this case is that Ms. Maurice indicated in her correspondence that the Form 1 submitted does not address the applicant’s current needs. Consequently, I find the applicant has not met his onus in proving his entitlement to retroactive ACBs or the test to meet entitlement to same.

Is the applicant entitled to payment of an award for the respondent’s unreasonable denial and withholding of accident benefits?

98I do not find that the applicant is entitled to an award as I do not find that the respondent unreasonably withheld or denied payment of benefits.

99Ontario Regulation 664, R.R.O. 1990 (O. Reg. 664) states 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.

100The applicant claims he is entitled to an award because his application for accident benefits was improperly assessed and denied by the respondent. The applicant contends that because Dr. Paitich, IE assessor for the respondent, recommended a CAT assessment under Criterion 7 and that assessment was never undertaken; accordingly, that is proof that the applicant’s claim for a CAT impairment was not properly assessed. Further, the applicant maintains that the adjuster’s log notes support that the adjuster requested authority to settle the file twice after the applicant submitted an OCF-19, and this is proof that the respondent conceded the applicant may have sustained a CAT impairment.

101I find that the applicant has not met his onus in proving that an award is warranted in this case. The applicant’s application seeking a CAT determination was made under Criterion 8. Therefore, the fact that the respondent did not conduct assessments under Criterion 7 does not support that the applicant’s claim was improperly assessed. Further, the respondent had a valid reason for challenging causation in this matter. In my view, the mere fact I preferred the applicant’s CAT IEs over the respondent’s does not justify an award. In addition, I do not find the fact that the adjuster had to apply for settlement authority as part of the dispute resolution process at the Tribunal as proof that the respondent conceded that the applicant was CAT. In my opinion, the adjuster was likely following internal protocol for the purpose of reaching a resolution.

102For the above-noted reasons the applicant is not entitled to an award.

CONCLUSION

103For all the above reasons, I find:

(i) The applicant is not statute-barred from claiming a housekeeping benefit for not disputing the respondent’s denial of same within the two-year time period pursuant to s.56 of the Schedule.

(ii) The applicant sustained a CAT impairment as a result of the accident in that he sustained a marked impairment under Criterion 8 in activities of daily living, social functioning, and deterioration in a work like setting (adaptation).

(iii) The applicant is entitled to a housekeeping benefit in the amount of $100.00 per week from the date of this decision, upon proof that the benefit has been incurred.

(iv) The applicant is not entitled to payment of an ACB in the amount of $1,530.69 from August 9, 2016 to date.

(v) The applicant is not entitled to an award.

Footnotes

1. 1American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, Ch.14.7: Mental and Behavioural Disorders.
2. 2Ibid, pg. 301, Table 1
3. 3Guides, p. 14/294.
4. 4Guides, p. 14/294
5. 5Guides, p. 14/294
6. 6Belair Insurance Company Inc.v. David McMichael, FSCO A13-005630 [“McMichael”]; Pucci v. Wawanesa Mutual Insurance Company, 2019 ONSC 1706 [“Pucci”]
7. 7Both form 1s were identical with the exception that one was calculated in accordance with market rates and one was calculated in accordance with the Financial Services Commission of Ontario Superintendent’s Guideline. Since both parties agreed that attendant care is payable in accordance with the Superintendent’s Guidelines I will address the Form 1 which complied with these rates in my analysis.