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:
A.M.
Applicant
and
Wawanesa Mutual
Respondent
DECISION
ADJUDICATOR:
Lindsay Lake
APPEARANCES:
For the Applicant:
A.M.
Kevan Wylie, Counsel
For the Respondent:
Amanda Lennox, Counsel
Ryland MacDonald, Counsel
Interpreter (Arabic):
Heba Lamloum (September 9, 2019)
Hala Lamloum (September 10, 2019)
Court Reporter:
Ann Crowe (September 9-11, 2019)
HEARD:
In-person in Hamilton, Ontario on September 9-11, 2019
Teleconference closing submissions on September 16, 2019
OVERVIEW
1The applicant, A.M., was injured in an automobile accident on April 2, 2016 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”)1 from Wawanesa Mutual (“Wawanesa”), the respondent.
2A.M. submitted an Application for Determination of Catastrophic Impairment Form (“OCF-19”) dated September 28, 20182 because she alleged that she sustained a catastrophic (“CAT”) impairment as a result of the accident.
3Wawanesa denied that A.M. sustained a CAT impairment as a result of the accident and also denied certain benefits sought by A.M. including a non-earner benefit, attendant care benefits and various treatment plans for assistive devices and assessments. Wawanesa also maintained that A.M.’s psychological injuries and epilepsy were not accident-related, but rather resulted from her pre-existing medical conditions.
4A.M. disagreed wth Wawanesa’s position and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a case conference, but the parties were unable to resolve the issues in dispute. As a result, an in-person hearing was scheduled which ended with closing submissions via teleconference.
ISSUES IN DISPUTE
5The following are the issues to be decided:
As a result of the accident, did A.M. sustain a CAT impairment as defined by the Schedule?
Is A.M. entitled to a non-earner benefit as follows:
(i) $185.00 per week from January 26, 2017 to April 1, 2018?
(ii) From April 2, 2018 to date and ongoing and, if so, in what amount per week?3
Is A.M. entitled to attendant care benefits of $1,510.79 per month from February 10, 2017 to date and ongoing, which was denied by Wawanesa on February 22, 2017?
Is A.M. entitled to $2,010.00 for assistive devices recommended by Physioart Rehabilitation in a treatment plan (“OCF-18”) submitted on February 10, 2017, and denied by Wawanesa on June 19, 2017?
Is A.M. entitled to $395.50 ($3,243.10 less $2,847.60 approved) for a neurological assessment recommended by Dr. Lance Majl in an OCF-18 submitted on December 9, 2016, and partially denied by Wawanesa on January 30, 2017?
Is A.M. entitled to $3,243.10 for an orthopaedic assessment recommended by Meditecs Independent Medical Assessments in an OCF-18 submitted on December 9, 2016, and denied by Wawanesa on December 23, 2016?
Is A.M. entitled to $3,243.10 for a needle EMG assessment recommended by Meditecs Independent Medical Assessments in an OCF-18 submitted on December 9, 2016, and denied by Wawanesa on December 23, 2016?
Is A.M. entitled to $12,979.50 ($25,659.25 less $12,6479.75 approved) for a multidisciplinary CAT impairment assessment recommended by Novo Medical in an OCF-18 submitted on September 28, 2018, and partially denied by Wawanesa on November 16,2018?
Is Wawanesa liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to A.M.?
Is A.M. entitled to interest on any overdue payment of benefits?4
RESULT
6Based on the evidence before me, I find that:
(i) A.M. did not sustain a CAT impairment as a result of the accident;
(ii) A.M. is not entitled to a non-earner benefit;
(iii) A.M. is not entitled to attendant care benefits;
(iv) A.M. is not entitled to the claimed assistive devices, orthopaedic assessment, needle EMG assessment and the unapproved portion of the OCF-18 seeking funding for a neurological assessment;
(v) A.M. is not entitled to the unapproved portions of the multidisciplinary CAT impairment assessment; and
(vi) A.M. is not entitled to an award or interest.
PROCEDURAL ISSUE
Wawanesa’s Request to remove A.M.’s Claim for an Award as an Issue in Dispute
7At the commencement of the hearing, Wawanesa sought an order from the Tribunal striking A.M.’s claim for an award under Regulation 664 from the issues in dispute because A.M. failed to provide any particulars of her claim for the award prior to the hearing.
8After hearing submissions from the parties, I denied Wawanesa’s request. The Tribunal’s April 1, 2019 Order did not require A.M. to provide particulars of her award claim to Wawanesa in advance of the hearing. However, to resolve any prejudice to Wawanesa, I ordered A.M. to provide particulars of her claim for the award by September 10, 2019 and allowed Wawanesa the opportunity to call a responding witness if it sought to do so after the particulars of A.M.’s claim were provided.
ANALYSIS
Causation
9Wawanesa raised the issue of causation as it maintained that A.M.’s psychological impairments and epilepsy did not arise as a result of the accident but were pre-existing.5
10In order to determine whether or not A.M. sustained a CAT impairment and her entitlement to the benefits in dispute, A.M. is first required to prove on a balance of probabilities that her impairments were caused by the accident. Both parties agreed that the applicable test in making this determination is the “but for” test: whether A.M. would have had the impairments but for the accident.6 Moreover, the accident is not required to have been “the cause” – that is, the accident need not be the sole cause or have been sufficient in itself to have caused the impairments at issue. Rather, the accident need only to have been a “necessary cause.”7
11I find that A.M.’s specific phobia (passenger anxiety) was caused by the accident and that her other pre-existing psychological impairments were worsened by the accident. I also find, however, that there is no evidence that A.M.’s epilepsy was caused by or worsened as a result of the accident.
A.M.’s Pre-Accident Health and Circumstances
12A.M. was born in Iraq and moved to Syria in 2007. A.M. remained in Syria until she immigrated as a refugee to Canada in early 2015. A.M.’s living conditions were unstable in Syria due to the Syrian civil war. Before immigrating to Canada, A.M. also suffered the tragic accidental loss of her oldest daughter in late 2014 due to gas asphyxiation. This tragic accident almost took A.M.’s life as well.
13A.M. was 7 months pregnant with her second daughter at the time of the accident. Although initially describing her health as “very good” before the accident, A.M. did confirm that she had a “little bit” of emotional problems due to the loss of her eldest daughter. A.M. stated that since her second daughter was born though that she “felt better.” A.M. also stated that she never had nightmares before the accident, and she denied seeing a psychiatrist prior to the accident.
14A.M. testified that before the accident, she did not have epilepsy and, when questioned if she had any seizures pre-accident, she said no, “never in my life.” However, A.M. conceded in cross-examination that she had been diagnosed with epilepsy in 2007. A.M. also initially testified that she took prescription medication for her epilepsy in the year before the accident but that she stopped this medication prior to the accident as she “felt good.” However, A.M. confirmed in cross-examination that she was being treated by a neurologist pre-accident and that she was in fact taking prescription medication at the time of the accident for her epilepsy. A.M. also stated that she did not have sleeping problems prior to the accident.
15A.M.’s husband also testified at the hearing and described A.M.’s pre-accident health as “very good.” He testified that A.M.’s only pre-accident complaint was pain in her head. A.M.’s husband also testified that he did not recall a February 2016 visit to the psychiatrist with A.M. and disputed that A.M. was socially isolated prior to the accident.
16The medical evidence before me presents a contrasting picture than that described by A.M. and her husband of A.M.’s pre-accident health. For example, in a March 12, 2015 consultation note by Dr. Joseph Perumpillichira, neurologist, A.M. reported, with the assistance of an interpreter, that her seizures started in 2007 and that her last major seizure was on January 16, 2015. At that time, Dr. Perumpillichira suspected that A.M.’s seizures could be idiopathic generalized epilepsy.
17A.M. saw Dr. Perumpillichira again with the assistance of an interpreter on January 28, 2016 at which time it was reported that A.M.’s seizures actually began when she was 12 years old. A.M. reported to Dr. Perumpillichira that she had a minor seizure one month prior to this appointment following a headache. Dr. Perumpillichira also noted that A.M. continued to have brief shock-like movements of her upper extremities which might make her drop objects from her hands which was suggestive of myoclonic jerks. At this visit, Dr. Perumpillichira confirmed his diagnosis of idiopathic generalized epilepsy. At that time, A.M.’s valproic acid medicine for her epilepsy was doubled from 250 mg once per day to 250 mg twice per day. A.M. also reported feeling depressed most of the time to Dr. Perumpillichira and her husband also reported to Dr. Perumpillichira that A.M. was suffering from migraine headaches.
18The clinical notes and records (“CNRs”) from St. Joseph’s HHealthcare Hamilton show that A.M. had a miscarriage in July 2015 and that A.M. attended the emergency department on December 11, 2015 as a result of a headache that she had for 3 or 4 days.
19A.M. also started attending her family doctor, Dr. Nabil Keith, on July 28, 2015. At her first visit, A.M. complained of low mood, sadness and reported that she was crying a lot at night. On August 18, 2015, A.M. returned to Dr. Keith and reported the same sad mood, a low appetite and that she was not able to sleep. A.M. also requested to be referred to a psychiatrist at this visit. On September 2, 2015, A.M. again saw Dr. Keith. While A.M. testified that she was really happy at this appointment because she found out that she was pregnant again, Dr. Keith’s notes indicate that A.M. still had a depressed mood, poor sleep and low levels of concentration. In fact, Dr. Keith diagnosed A.M. with a major depressive disorder at this visit. A.M. also returned to Dr. Keith due to headaches on January 6, 2016.
20In a consultation note following an assessment of A.M. with an interpreter present on February 17, 2016 and on February 22, 2016,8 Dr. Pri Weerasekera, psychiatrist, also diagnosed A.M. with major depressive episode. Dr. Weerasekera stated that A.M. suffered from depressive symptoms for the past year since the loss of her four-year-old daughter and, since that time, A.M. experienced poor sleep, poor energy, poor appetite, poor concentration, poor memory and constant weepiness.9 Dr. Weerasekera was concerned about A.M.’s level of depression.10 In her testimony, A.M. disputed that she cried during her appointments with Dr. Weerasekera and stated that the comments in the report reflected her life after the accident, not before. She maintained that she was very happy at the time of this appointment.
21Certainly, there are meaningful discrepancies between A.M.’s and her husband’s testimony and the medical evidence before me regarding A.M.’s pre-accident health. While I do not find that A.M. was intentionally misrepresenting her pre-accident health, I place more weight on the pre-accident medical documents as they do not rely upon A.M. or her family to be accurate historians. As a result, I find that A.M. suffered from the following health conditions pre-accident:
(i) idiopathic generalized epilepsy since at least 2007 that required a doubling of A.M.’s epileptic medication (valproic acid) in January 2016;
(ii) suspected myoclonic jerks described as brief shock-like movements of A.M.’s upper extremities which might make A.M. drop objects from her hands (January 2016);
(iii) a miscarriage (July 2015);
(iv) migraine headaches that lasted 3 to 4 days in length in December 2015;
(v) major depressive disorder (diagnosed September 2, 2015);
(vi) major depressive episode (diagnosed February 2016); and
(vii) sleep disturbances, poor concentration, poor energy, poor appetite and poor memory since the loss of her first daughter.
Post-Accident Evidence
22The majority of the medical evidence following the accident supports a finding that A.M.’s psychological condition began after the death of her first daughter and that the accident only exacerbated her pre-existing symptoms. There is no evidence to suggest that the accident caused A.M.’s epilepsy or worsened this condition.
23In a May 3, 2016 consultation report by Dr. B. Frey, psychiatrist, and Karen Jansen, social worker,11 A.M. was again diagnosed with major depressive disorder (severe) probably with psychotic features following an assessment on April 21, 2016 with an interpreter present.12 Despite A.M.’s reporting of the accident to Dr. Frey and Ms. Jansen, the report stated, “this current episode of depression started in December 2014, with the death of her 4 year old daughter from carbon monoxide poisoning.”13 To support this statement, the report also noted that A.M., “sometimes thinks that she sees her daughter and when sleeping she feels her daughter sleeping beside her and touching her. This may possibly be psychosis and/or complicated grief with cultural overtones.”14 The report also stated that A.M., “presented as a very depressed woman who sat for the most part with head down and very limited eye contact. For the most part she deferred questions to her husband to answer. She was weepy when speaking of her deceased daughter.”15 Dr. Frey and Ms. Jansen reported that A.M., “describes having depressed mood with ongoing tearfulness, fatigue, lethargy, decreased motivation, anhedonia, irritability, anxiety, decreased libido, sleep difficulties as she says she wakes up with nightmares and panic symptoms”16 without any indication if the nightmares were accident-related. The report also noted that A.M. was severely socially isolated prior to the accident.17
24A.M.’s reporting that her depression worsened since the accident, however, is consistent with the opinion contained in the Insurer’s Psychiatry Examination report dated February 25, 2019 by Dr. Joel Eisen, psychiatrist.18 Following an assessment with A.M. on January 14, 2019 with an interpreter present, Dr. Eisen diagnosed A.M. with a pre-existing major depressive disorder and specific phobia (passenger anxiety).19 In providing his opinion, Dr. Eisen stated, “as a consequence of the subject motor vehicle accident, [A.M.] likely had an exacerbation of her pre-existing major depressive disorder…Furthermore, she likely has a Specific Phobia (passenger anxiety) as a consequence of the subject motor vehicle accident.”20
25I place more weight on Dr. Frey and Ms. Jansen’s May 3, 2016 report and Dr. Eisen’s February 25, 2019 report than on the medical expert reports submitted by A.M. regarding her psychological condition for the following reasons.
26A.M. submitted two psychological reports – one dated August 7, 2018 by Dr. Judith Pilowsky, psychologist,21 and a second dated September 23, 2018 by Dr. Romeo Vitelli, psychologist.22 In her report, Dr. Pilowsky diagnoses A.M. with posttraumatic stress disorder and persistent moderate somatic symptom disorder with predominant pain with secondary depression as a direct result of the accident.23 Dr. Vitelli diagnoses A.M. with: adjustment disorder; persistent somatoform pain disorder; major depressive disorder; and posttraumatic stress disorder.24 I place very little weight on both of these reports because although both psychologists note that they reviewed medical documents as part of their assessment of A.M. that diagnosed A.M. with major depressive disorder/episode pre-accident, neither report provides any analysis as to A.M.’s pre-existing psychological condition in relation to her post-accident psychological symptoms let alone even mention the pre-accident diagnoses. Neither Dr. Pilowsky or Dr. Vitelli were called as witnesses to testify at the hearing to provide any rationale or explanation for this very apparent oversight. Additionally, there was no indication in Dr. Vitelli’s report if an interpreter was present for A.M.’s assessment.
27Therefore, I find that A.M. has proven on a balance of probabilities that her specific phobia was caused by the accident as there is no evidence that she suffered from any vehicle related anxiety pre-accident and that her other psychological impairments were worsened by the accident.
28However, I find that there is no evidence that A.M.’s epilepsy was caused or worsened as a result of the accident. I accept that A.M. was diagnosed with epilepsy as early as 2007, likely even before this time, and that A.M. was taking prescription medication that was increased to double the dosage less than three months prior to the accident. A.M. was under the care of a neurologist at the time of the accident and reportedly had a mild seizure in January 2016. Additionally, the only reported seizure event post-accident was in August 2018. At that time, A.M. attended St. Joseph’s Healthcare following at least 4 seizures at home and 1 occurring while she was at the hospital. There was no medical evidence attributing these seizures to the accident and the CNRs from the hospital noted that there were multiple possible triggers including increased migraines in the context of A.M.’s recent attendance at weddings that were loud and bright, A.M. having a fever within the few days preceding the seizures, and A.M.’s reports of abdominal pain and diarrhea. Based on all of this evidence, I find that A.M. has failed to prove on a balance of probabilities that her epilepsy was caused or worsened by the accident.
CAT Impairment
29A.M. bears the onus of establishing on the balance of probabilities that, as a result of the accident, she sustained a CAT impairment. Jurisprudence has held that this determination is a legal test, and not a medical one.25
30In this matter, A.M. relies upon two CAT impairment definitions under s. 3(2) of the Schedule, which are as follows:
(i) an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”), results in a whole person impairment (“WPI”) of 55% or more26 which is referred to as a “Criterion 7” impairment; and/or
(ii) an impairment that, in accordance with the Guides, results in a class 4 “marked” impairment or a class 5 “extreme” impairment due to a mental or behavioural disorder27 which is referred to as a “Criterion 8” impairment.
31A.M. is only required to prove that she sustained a CAT impairment as a result of the accident under one of the two definitions and not both.
32For the reasons that follow, I find that A.M. failed to prove on a balance of probabilities that she sustained a CAT impairment as a result of the accident under both criteria 7 and 8.
Criterion 7 Impairment
33The Guides are a compilation of chapters, which contain specific rating criteria for the degree of impairment of individual body systems. Each chapter is dedicated to a particular body system. In order to arrive at a total WPI rating under the Schedule, each individual impairment must first be rated separately under the corresponding chapters within the Guides to obtain an individual impairment rating. Once all the individual impairment ratings are obtained, they are combined according to a formula in the Guides to arrive at the total WPI rating.28
34A.M.’s position is that her combined accident-related impairments result in a 62% WPI rating. Wawanesa’s position is that A.M.’s total WPI rating is 10%. The parties respective WPI ratings for the individual body systems is as follows:
| Body System | A.M.’s position | Wawanesa’s position |
|---|---|---|
| Musculoskeletal | 19% | 0% |
| Nervous System | 5% | 0% |
| Mental or Behavioural Disorders | 49% | 10% |
| Medication side effects | 3% | Not addressed |
| TOTAL WPI | 62% | 10% |
Mental or Behavioural Disorders WPI Rating
35There is considerable discrepancy in the WPI rating for mental or behavioural disorders between A.M.’s position and Wawanesa’s position.
36Mental and behavioural impairments are not rated like physical impairments as they are not assigned a percentage rating by the Guides. Instead, mental and behavioural impairments are rated within the following four spheres of function: activities of daily living (“ADLs”); social functioning (“SF”); concentration, pace and persistence (“CPP”); and adaptation (“AD”).29 The following table from Chapter 14 of the Guides describes the four domains, the classes of impairment and the verbal rating criteria for each class:30
| 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 |
|---|---|---|---|---|---|
| ADLs SF CPP AD |
No Impairment is noted | Impairment levels are compatible with most useful functioning | Impairment levels are compatible with some, but not all, useful functioning | Impairments levels significantly impede useful functioning | Impairment levels preclude useful functioning |
37The acceptable method of converting the Chapter 14 mental and behavioural ratings into a WPI percentage rating is by utilizing Table 3 from Chapter 4 of the Guides to come up with a percentage rating that parallels the descriptive ranges within the percentage rating system. Table 3 from Chapter 4 is as follows:
| Impairment Description | % Impairment of Whole Person |
|---|---|
| Mild Limitation of daily social and interpersonal functioning | 0-14% |
| Moderate Limitation of some but not all social and interpersonal daily living functions | 15-29% |
| Severe limitation impeding useful action in almost all social and interpersonal daily functions | 30-49% |
| Severe Limitation of all daily functions requiring total dependence on another person | 50-70% |
38A.M. relies upon the Catastrophic Impairment Determination Psychological Evaluation Report dated September 23, 2018 by Dr. Vitelli. Dr. Vitelli found that A.M. suffered a class 4 “marked” impairment in the domains of social functioning, concentration, persistence and pace and adaptation. Dr. Vitelli also assigned a class 3 “moderate” impairment in the ADL domain. Dr. Vitelli did not assign a WPI percentage and, rather, only provided that A.M.’s impairment rating is consistent with 30-49% WPI according to Table 3 in Chapter 4.
39A.M. is assigned the WPI rating of 49% for Mental or Behavioural Disorders by Dr. Naguib Milad, physician, in his Catastrophic Impairment Analysis report dated September 28, 2018.31 In this report, Dr. Milad stated:
Based on Dr. Romeo Vitelli’s Catastrophic Psychological Evaluation Report dated September 23, 2018, the claimant’s impairment due to mental and behavioural disorders with respect to the reported impairments and following the AMA Guides procedure, the whole person impairment rating (WPI) is in the 30-49 percent range. As such the score of 49% will be used to represent Chapter 14.32
40I place little weight on the 49% WPI rating for Mental or Behavioural Disorders as assigned by Dr. Milad and relied upon by A.M. for several reasons. First, Dr. Milad failed to provide any analysis or explanation for his assignment of a 49% WPI in his September 28, 2018 report especially when he assigned the highest percentage in the severe range when Dr. Vitelli only assigned three class 4 “marked” impairments out of the four domains.
41Dr. Milad was questioned about this lack of analysis in assigning the 49% WPI in his report during cross-examination at the hearing. Dr. Milad stated that he assigned 49% WPI because A.M. was fragile due to the loss of her child. Dr. Milad was evasive when questioned where this information was in his report and responded that because A.M. was pregnant at the time of the accident and had lost a previous baby that such factors could cause more phobia, more psychological problems and more issues. As such, Dr. Milad assigned A.M. the maximum WPI percentage in the range provided by Dr. Vitelli despite Dr. Milad testifying that his usual practice was to assign a percentage in the middle of a provided range.
42I find that the wording of s. 3(5) of the Schedule does not support Dr. Milad’s explanation for his 49% WPI assignment. Section 3(5) states that the WPI percentage does not apply unless two years have passed since the accident or a physician confirms it is unlikely that the applicant will cease to be catastrophically impaired. The two-year mark shows an intention by the Legislature that the potential for improvement or deterioration is not a factor to consider in determining CAT after two years. Further, the definition of “catastrophic impairment” in the applicable version of the Schedule refers to an insured person who has a combination of impairments that results in 55 % WPI as opposed to could have. The plain, grammatical and ordinary meaning of the definition requires an actual present rating or opinion as to the actual rating and not a prediction, projection or possibility into the future33 which is what Dr. Milad testified that he took into consideration in assigning the highest value of 49% WPI in the range.
43Second, I find that Dr. Milad lacks expertise to assign a percentage for Mental or Behavioural Disorders in accordance with the Guides. Wawanesa challenged the qualification of Dr. Milad as an expert witness in CAT impairment assessments and provided the requisite notice to A.M. pursuant to Rule 10.4 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”).34 Dr. Milad testified that the bulk of his assessment experience was in chronic pain assessments and he agreed with Wawanesa that he had “zero” certification in the use of the Guides. Dr. Milad’s only training on the application and use of the Guides was a one-time 3-day course and he is not certified by the Canadian Society of Medical Evaluators for use of the Guides. Moreover, Dr. Milad offered no evidence that he had any expertise in completing psychological assessments, he confirmed that he was neither a psychologist nor a psychiatrist and was not certified by the Canadian Academy of Psychologists in disability assessments for the use of the Guides. While I do not find it necessary to disqualify Dr. Milad outright as an expert in CAT impairment assessments, I do find that he failed to provide evidence to support his qualifications to assign A.M. a 49% WPI for Mental or Behavioural Disorders.
44Third, I do not place weight on the documents relied upon by Dr. Milad in assigning A.M. a 49% WPI for Mental or Behavioural Disorders. Dr. Milad testified that he relied upon Dr. Vitelli’s September 23, 2018 report and also the September 12, 2018 Occupational Therapy Catastrophic Impairment Determination Assessment Report by Mr. Julian Amchislavsky, occupational therapist,35 in making his assignment for Mental or Behavioural Disorders.
45In addition to the reasons discussed above in paragraph [26], I place little weight on Dr. Vitelli’s September 23, 2018 report because his assignment of A.M.’s level of impairments in the four domains is unreliable. Dr. Vitelli’s report was heavily dependent on Mr. Amchislavsky’s report, often cutting and pasting from it. Mr. Amchislavsky’s report is problematic and I place little weight on it as well because there was no indication if an interpreter was present for his assessment of A.M. and it contained glaring errors. For example, Mr. Amchislavsky reported that A.M. was responsible for all gardening tasks prior to the accident and that her husband was responsible for lawn care and snow removal prior to and after the accident despite reporting that his assessment took place at A.M.’s place of residence, which was an apartment on the 15th floor of a high rise building.36 There was no evidence to support Mr. Amchislavsky’s report that there was a garden for A.M. to tend to pre-accident and it is absurd that A.M.’s husband would be responsible for lawn care and snow removal pre- and post-accident at their residence. Given these blatant errors, it causes me concerns regarding other observations made by Mr. Amchislavsky contained in his report.
46Additionally, Mr. Amchislavsky’s reporting of A.M.’s functionality in July 2018 is contradicted by surveillance evidence of A.M. For example, Mr. Amchislavsky reported that A.M. was:
(i) only able to stand for approximately 5 minutes leaving her unable to complete meal preparation, laundry, washing dishes/kitchen clean up and grocery shop;
(ii) only able to walk for 10 minutes;
(iii) unable to kneel or squat; and
(iv) only able to lift and carry light items.37
47In contrast, surveillance from November 15, 2018 showed A.M. walking while shopping with her family at a mall for approximately one and a half hours. A.M. was also observed on this date lifting and carrying her youngest child, who was approximately two years old at the time,38 up a set of stairs, picking up her daughter to put her into their vehicle and bending down to place her daughter down. There is also surveillance evidence from November 26, 2018 showing A.M. shopping at a Discount Max store.
48Additionally, Dr. Milad failed to complete an Acknowledgment of Expert’s Duty form despite Rule 10.2(b) of the Rules requiring the completion of this form if a party intends to rely on or refer to the evidence of an expert witness. When asked about his failure to complete the form, Dr. Milad confirmed that he did not complete one because he was not asked to do so. The Tribunal has often held that the lack of an Acknowledgment of Expert’s Duty form goes to the weight assigned to the expert’s report and, in this case, I find that the absence of this form along with Dr. Milad’s explanation for his failure to complete it further leads me to afford little weight to Dr. Milad’s opinions and findings in his September 28, 2018 report.
49For all of the reasons set out above, I am unable to put weight on the 49% WPI that Dr. Milad assigned to A.M. for Mental or Behavioural Disorders. As a result, even if I were to accept all of the other remaining WPI percentages relied upon by A.M., which I do not, and add the 10% WPI proposed by Wawanesa, which I also do not accept as there are equally concerning issues with the arrival of this WPI rating which need not be canvassed at this stage given my other findings on this issue, the maximum combined total WPI percentage according to the combined values chart in the Guides39 is 33% WPI. A 33% WPI is well below the required threshold of 55% WPI for a finding of a CAT impairment. As such, I find that A.M. failed to prove on a balance of probabilities that she sustained a CAT impairment as a result of the accident under criterion 7 as set out in s. 3(2)(e) of the Schedule.
Criterion 8 Impairment
50Criterion 8 is addressed in Chapter 14 of the Guides. As discussed above, impairments are classified in this chapter according to how seriously they affect a person’s useful daily functioning in four functional domains: activities of daily living (“ADLs”); social functioning (“SF”); concentration, pace and persistence (“CPP”); and adaptation (“AD”).40 Impairments are classified using word descriptors in Chapter 14 of the Guides on a five-category scale that ranges from no impairment to extreme impairment as set out in the chart above at paragraph [36]. These word descriptors are important because they assign meaning to each category. Therefore, it is not the category label itself (e.g., mild, moderate, marked, extreme) that must be carefully assessed and analyzed, but the language that the Guides use – the verbal rating criteria – describing these classifications.
51In Pastore v. Aviva Canada Inc.,41 the Ontario Court of Appeal confirmed that a single “marked,” or class 4, impairment in any one domain will qualify as a CAT impairment. As a result, and in accordance with the Schedule in place at the time of the accident, a person is catastrophically impaired if he or she is found to have a class 4 “marked” impairment or a class 5 “extreme” impairment that affects useful functioning in any one of the four functional domains due to mental or behavioural issues.
52In this matter, A.M. argues that she meets the criteria for a CAT impairment designation under Criterion 8 by relying upon Dr. Vitelli’s September 23, 2018 report wherein he assigned A.M. a class 4 “marked” impairment in the domains of social functioning, concentration, persistence and pace and adaption.
53Wawanesa disagrees and maintains that A.M. does not meet the threshold for CAT impairment under Criterion 8 as a result of the accident. Wawanesa relies upon the opinion of Dr. Eisen, psychiatrist, who opined that A.M. sustained a class 2 “mild” impairment in each of the four domains.
54When deciding the issue of CAT impairment due to mental or behaviour disorders, the following three-step approach was established by the Court of Appeal in Pastore:
(i) Did the accident cause the applicant to suffer a mental or behavioural disorder?
(ii) If it did, what is the impact of the mental or behavioural disorder on the applicant’s life?
(iii) In view of the impact, what is the level of impairment?
Did the accident cause A.M. to suffer a mental or behavioural disorder?
55The issue of causation was thoroughly canvassed at the outset of this decision in paragraphs [9] through [28]. As a result of my analysis, I found that A.M.’s specific phobia (passenger anxiety) was caused by the accident and that A.M.’s other psychological impairments were worsened by the accident.
What is the impact of the mental or behavioural disorder on A.M.’s life?
56The medical evidence before me again presents a contrasting picture than that described by A.M., her husband and her son at the hearing of A.M.’s pre-accident levels of function.
57A.M. testified that her life in Canada prior to the accident was happy and very active. A.M. stated that she would walk, prepare food and was responsible for cleaning her family’s apartment. A.M. testified that she was solely responsible for sweeping and dusting, cleaning the dishes, meal preparation and cooking prior to the accident. She spoke of playing with her son at a nearby garden twice a week and confirmed that she was independent with her personal care and hygiene pre-accident. A.M. also testified that she attended a mosque every Friday for prayer before the accident for approximately 3 to 4 hours at a time, she would grocery shop with her husband and assist with carrying bags of groceries home on the bus, she would sometimes have guests into their home and go to others’ homes and kept in touch with her extended family in the United Kingdom calling them on the phone 2 to 4 times per week.
58A.M. was not working or volunteering at the time of the accident and testified that she has never worked in Canada. A.M. did not have a driver’s licence prior to or after the accident. There were some reports of A.M. being enrolled in English as a second language (“ESL”) classes prior to the accident but A.M. provided no testimony about these classes and no documentation was submitted to support A.M.’s pre-accident involvement in ESL classes.
59A.M.’s husband also testified that A.M. was previously responsible for the completion of all of the housekeeping duties pre-accident except garbage removal. A.M.’s son, who also testified at the hearing, stated that housekeeping was completed by both A.M. and his father pre-accident with A.M. completing a greater portion of the household tasks. A.M.’s son also testified that he did not go to the park with his mother before the accident.
60As discussed above in paragraph [21], I am unable to accept the testimony of A.M. and her family as evidence of her pre-accident level of functioning and place more weight on the pre-accident medical documents as they do not rely upon A.M. or her family to be accurate historians. As such, I place significant weight on the consultation note by Dr. Weerasekera following an assessment of A.M. on February 17, 2016 and on February 22, 2016 which was also discussed above in paragraph [20]. In addition to diagnosing A.M. with major depressive episode, Dr. Weerasekera described A.M. as being isolated and spending all of her time inside the house without any social interactions.42 In describing A.M. as “quite weepy,” Dr. Weerasekera made several recommendations to A.M. including:
(i) to try and engage with the Syrian refugee community but noted that A.M. and her husband were reluctant to do so for a variety of reasons;
(ii) spend time learning the English language so that A.M. could at least make new friends if she did not want to have friends within her own culture; and
(iii) Behavioural Activation that included regular physical activity starting with 10 to 15 minutes of walking each day and some outings to a shopping mall or other social places to get A.M. out of the house. Dr. Weerasekera noted that she was guarded as to whether or not A.M. would follow the Behavioural Activation recommendation.43
61Again, while A.M. disputed that this report reflected her pre-accident life, I agree with Wawanesa that at the time of this report, there was no reason for A.M. or her husband to exaggerate A.M.’s condition. I place significant weight on this report as a more accurate reflection of A.M.’s pre-accident life because it was completed within months of the accident not by any expert retained by either party for the purposes of this application and there was an interpreter present.
62In placing weight on Dr. Weerasekera’s report, I find that Dr. Weerasekera’s recommendations directly contradict A.M.’s testimony that she was socializing on a weekly basis at the mosque for hours at a time and having friends over to her apartment. Also, what is not clear from Dr. Weerasekera’s report is A.M.’s participation prior to the accident in housekeeping duties. However, given Dr. Weerasekera’s report that A.M. was experiencing poor sleep, poor energy, poor appetite, poor concentration, poor memory and constant weepiness, I suspect that A.M. was not fully responsible for all of the household chores prior to the accident, except garbage removal, as she had testified.
63A.M.’s limited functionality as a result of her depression continued post-accident. For example, in the May 3, 2016 consultation report by Dr. Frey and Ms. Jansen that I discussed above in paragraph [23], the report noted:
Currently [A.M.] is severely socially isolated. The husband seems to have a few friends but [A.M.] remains quite isolated and not interested in attending community services and supports. As a result, she is very dependent on her husband. Due to her current depression, the husband reports that he does most of the daily running of the household.44
64Dr. Frey and Ms. Jansen also reported that A.M. did not leave the apartment except for occasional car rides with her husband but that these outings were significantly less frequent as they did not have access to a vehicle immediately after the accident.
65After reviewing the evidence before me, I find that the accident resulted in a mental or behavioural disorder which worsened A.M.’s daily functioning in a negative manner on a temporary basis specifically in the areas of social isolation and household duties. In providing the benefit of the doubt to A.M., I find that while I do not accept that she was responsible for all of the household chores pre-accident, it is likely that her involvement with the household duties decreased post-accident such that at the time of Dr. Frey’s and Ms. Jansen’s May 3, 2016 report her husband was doing most of the daily running of the household. I also accept that immediately after the accident, A.M. experienced further isolation as a result of temporarily having no family vehicle. Additionally, for the reasons discussed in paragraphs [24] to [27] above, I find that the accident caused A.M.’s specific phobia (passenger anxiety) which would also negatively affect A.M.’s daily functioning.
66Given my findings, an analysis is now required to assess the severity of A.M.’s limitations to see if they reach the level of a CAT impairment.
What is the Level of A.M.’s Impairment in View of the Impact of the Mental or Behavioural Disorder?
a) Activities of Daily Living (ADLs)
67As a result of the accident, I find that A.M. sustained a class 2 “mild” impairment in the ADL domain.
68None of the Insurer’s Examination (“IE”) or A.M.’s CAT impairment determination reports before me assigned A.M. a class 4 “marked” impairment or a class “5” extreme impairment rating under the ADL domain. As this domain focuses on activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep and social and recreational activities, I as well find that A.M.’s ADL impairment level does not reach the threshold of a class 4 or class 5 impairment.
69My rationale for providing little to no weight to Dr. Vitelli’s September 23, 2018 report is set out above in paragraphs [26] and [45]. However, it is worth noting that Dr. Vitelli assigned A.M. a class 3 “moderate” impairment in the ADL domain and only refers to Mr. Amchislavsky’s report in the areas of laundry, washing dishes/kitchen clean up, surface cleaning, bathroom cleaning, grocery shopping, bed making/changing and meal preparation. Respectfully, the ADL domain addresses far more activities than simply A.M.’s ability to clean.
70I place weight on Dr. Eisen’s February 25, 2019 report as an interpreter was present for his assessment of A.M. and Dr. Eisen acknowledged and provided an analysis of A.M.’s pre-existing psychological conditions on his opinion of whether or not A.M. sustained a CAT impairment. Further, in assigning A.M. a class 2 “mild” impairment in the ADL domain, Dr. Eisen commented not only on A.M.’s participation in pre-accident household tasks, but also that she was independent with her self-care, she was taking care of her children taking them to their appointments, she regarded herself as a good mother, she shared in grocery shopping duties and continued to complete her daily prayers at home.45 I also accept Dr. Eisen’s report that A.M. had anxiety associated with vehicular travel and that A.M. also reported impairment in her sleep, appetite and energy which she suffered from prior to the accident.
71Moreover, Dr. Eisen’s report is more consistent with A.M.’s testimony at the hearing that she:
(i) is currently independent with her personal care activities;
(ii) shares the household chores with her husband including the dishes;
(iii) sweeps and mops the floor, dusts, makes the beds and vacuums the family’s apartment;
(iv) still has not fully returned to meal preparation duties because of her seizures;
(v) is less intimate with her husband;
(vi) attended a wedding in 2018 and traveled to Ottawa;
(vii) is able to raise her daughter who is now three years old and that she views herself as a good mother;
(viii) is able to pick up her daughter for short periods of time;
(ix) keeps in frequent contact with her family in the United Kingdom;
(x) grocery shops with her husband twice a week and is able to attend a shopping mall with him; and
(xi) is able to go to the park with her family in the warmer weather.
72Given that I accept that A.M. still has some impairment in the ADL domain, she has significantly improved since the accident and, in my opinion, her remaining impairment levels are compatible with most useful functioning rendering the appropriate assignment of a class 2 “mild” impairment.
b) Social Functioning
73I find that A.M. sustained a class 1 “no” impairment as a result of the accident in the SF domain.
74The SF domain refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. The SF domain includes the ability to get along with others, such as family members, friends, neighbours, etc. The Guides explain that impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. On the other hand, strength in social functioning may be demonstrated by an individual’s ability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities. The Guides also state that cooperative behaviour, consideration for others, awareness of others’ sensitivities and social maturity also need to be considered under this domain.46
75Dr. Vitelli assigned A.M. a class 4 “marked” impairment in the SF domain after reporting that A.M.’s social life had been affected such that she could not partake in all of her social activities that she used to enjoy. Dr. Vitelli provided no further information on what A.M.’s pre-accident social activities were. Dr. Vitelli further reported that A.M. stayed home most of the time at the time of his report and was not motivated to leave her home as leaving made her nervous and uncomfortable.47
76In contrast, Dr. Eisen provides far more details about A.M.’s social functioning in assigning her a class 2 “mild” impairment in this domain. For example, Dr. Eisen states that A.M. reported that she had two or three friends but that even when she lived in Syria she did not have many close friends. Dr. Eisen noted that A.M. was unable to describe any activities that she did with her friends and noted that A.M. stated that her relationship with her husband was strained. Also, in relying upon the February 25, 2019 Insurer’s Occupational Therapy Examination report by Melanie Robbins, occupational therapist, Dr. Eisen noted that A.M. was regularly communicating with her mother on a daily basis and with her siblings once per week.48
77Although A.M. testified that she has not returned to the mosque post-accident, I do not accept her evidence that she was regularly attending the mosque prior to the accident based on the recommendations provided to her in Dr. Weerasekera’s report. I also find that there has been no change in A.M.’s social functioning with her extended family pre- and post-accident as she continues to communicate with her mother and siblings on a regular basis.
78Based on all of the evidence before me, I find that the applicant has actually improved in her social functioning since Dr. Eisen’s report and certainly when compared to her life prior to the accident. Although initially denying that she went out and socialized with others at the time of the hearing, A.M. conceded that she would attend Medina Fine Foods, an international food supermarket, for coffee and to socialize with others. A.M. further testified that she would stay at Medina Fine Foods for up to three hours twice per week with her husband and her daughter. A.M.’s attendance at Medina Fine Foods was corroborated by the testimony from Mr. Salti Kafouf who operates Medina Fine Foods. Mr. Kafouf also testified that he regarded A.M. and her husband as his friends. Both A.M. and Mr. Kafouf denied that A.M. worked at Medina Fine Foods. However, surveillance evidence from April 23, 2019 showed A.M. arriving at Medina Fine Foods at just before 11:00 a.m. and her leaving in their family’s vehicle at 10:30 p.m. I decline to make any findings regarding allegations that A.M. was working at Medina Fine Foods given the events of April 23, 2019 as this finding is not required for the purposes of my analysis.
79Surveillance evidence also showed A.M. shopping on November 15, 2018 for one and a half hours with her family at a shopping mall and again on November 26, 2018 as discussed in paragraph [47] above.
80A.M. also attended the in-person hearing two days in a row and arrived and returned from breaks promptly. There were no outbursts from A.M. during the hearing and she was polite, cooperative and respectful to me and to Wawanesa. A.M. was also able to tend to her three-year-old daughter throughout the hearing as needed.
81For all of the reasons set out above, I find that A.M.’s level of impairment when considering her pre-accident baseline has significantly improved in that she is regularly leaving her apartment and socializing with others for extended periods of time. I also find that A.M.’s social functioning has improved since her assessment with Dr. Eisen and, as a result, I find that she no longer sustains any impairment in the SF domain and assign her a class 1 “no” impairment.
c) Concentration, Persistence and Pace (CPP)
82I find that, as a result of the accident, A.M. sustained a class 2 “mild” impairment in the CPP domain, which refers to the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings. Concentration may be reflected in activities of daily living in terms of the ability to complete everyday household tasks. Further, deficiencies in concentration, persistence and pace are best noted, according to the Guides, from previous work attempts or from observations in work like settings.49
83Dr. Vitelli assigned A.M. a class 4 “marked” impairment in the CPP domain. Dr. Vitelli reported that since her accident, A.M.’s cognitive functioning has deteriorated substantially which he noted was, “a consensus shared by other professionals who have assessed her in the past.”50 Dr. Vitelli provides no details as to who these professionals were, then proceeds to “cut and paste” Mr. Amchislavsky’s September 12, 2018 report and assigns his impairment rating with no further analysis or discussion.
84In assigning a class 2 “mild” impairment, Dr. Eisen reports that A.M. initially reported poor concentration and memory since the accident but later informed him that she had difficulty with her cognition since the loss of her daughter. A.M. reported to Dr. Eisen that she was able to follow and absorb what she watches on television and carefully records her appointments. A.M. reported to Dr. Eisen that she misplaces items such as her cell phone and that her husband reminds her to take her medicine. Dr. Eisen also relied upon the February 25, 2019 Occupational Therapy Examination by Ms. Melanie Robbins51 in arriving at his impairment assignments. Dr. Eisen highlighted Ms. Robbins’ report that A.M. had no overt difficulties or issues in terms of orientation, memory, ability to attend, maintain concentration, process information, comprehend or express herself within the content of Ms. Robbins assessment which was in excess of two hours.52
85Ms. Robbins did note that during her assessment, A.M. was unable to recall the date of her son’s birthday. A.M. often struggled with dates at the hearing as well. For example, A.M. initially could not recall the date of her own birthday. A.M. also testified that she came to Canada on April 20, 2015 but this date contradicts the evidence of the consultation report by Dr. Perumpillichira which indicated that A.M. attended for an appointment on March 12, 2015. A.M.’s difficulty with dates also may have contributed to her inaccurate pre-accident history reporting. In any event, it is unclear what pre-accident difficulties A.M. may have with date recollection given Dr. Weerasekera’s pre-accident report which indicated that A.M. had poor memory and poor concentration. A.M.’s family doctor, Dr. Keith, also reported that A.M. had a low level of concentration on September 2, 2015.
86A.M. was, however, able to complete her direct examination and cross-examination with few breaks. A.M.’s conduct and testimony at the hearing demonstrated her ability to focus and maintain attention especially given the presence of her three-year-old daughter who often wanted A.M.’s attention.
87Based on all of the evidence before me, I find that A.M. sustained a class 2 “mild” impairment in the CPP domain. I place significant weight on Dr. Eisen’s report and opinions in arriving at this finding given the lack of pre-accident information on A.M.’s ability to recall dates and her reported pre-accident poor memory and concentration. However, I do agree with Dr. Eisen that there is an impairment in this domain, and I find that a class 2 “mild” impairment is appropriate as the severity of A.M.’s impairment is consistent with most useful functioning.
d) Adaptation (Deterioration or Decomposition in Work or Work Like Setting)
88I find that A.M. sustained a class 2 “mild” impairment as a result of the accident in the AD domain.
89The AD domain refers to repeated failure to adapt to stressful circumstances and, in the face of such circumstances, individuals may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder. That is, the individual would decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks. The Guides explain that stresses common to the work environment include attendance, making decisions, scheduling, completing tasks and interacting with supervisors and peers.53
90Dr. Vitelli assigned A.M. a class 4 “marked” impairment in the AD domain.54 Again Dr. Vitelli relied heavily upon Mr. Amchislavsky’s report as Dr. Vitelli’s only comments under this domain were that A.M. was not working outside of the home and discussed A.M.’s ongoing difficulties causing her to withdraw socially with no pre-accident comparison.
91Dr. Eisen’s report assigned A.M. a class 2 “mild” impairment in the AD domain. In determining A.M.’s level of impairment in the AD domain, however, I find Dr. Eisen’s report of little assistance. Dr. Eisen only commented that A.M. was mostly independent in her self-care, performing a variety of household maintenance chores, looking after her children and taking them to various appointments. Dr. Eisen also noted that A.M. shops for herself and her children and only referred to Ms. Robbins’ comments on A.M. presenting with feelings of depression, anxiety and fatigue.55
92There is no evidence before me that A.M. had any more than a mild impairment regarding her activities of daily living and no impairment in the social functioning domain which were both discussed above in greater detail.
93A.M. also attended the hearing for two of the three days which is arguably a stressful situation and she did not withdraw or show signs of increased mental distress. A.M. also testified that her youngest daughter was required to remain in the hospital for a month after she was born in June 2016. A.M. confirmed that this was a very scary time for her. A.M. testified that she refused to go home from the hospital without her daughter and, instead, was provided a room at the hospital to stay and sleep in. In remaining with her daughter at the hospital, A.M. did not retreat but once again demonstrated her resilience and determination to be a good mother.
94There was also no evidence before me that A.M. failed to attend her treatment or any doctor appointments except for one comment in Dr. Keith’s records on November 6, 2017 that he had sent A.M. to a neurologist a few times but that she was a “no show.”56 It is unclear if Dr. Keith was referring to appointments before or after the accident.
95Additionally, Mr. Kafouf did not indicate that he or any of the other persons that A.M. socializes with at Medina Fine Foods had any issues interacting with A.M.
96I also have no evidence before me that A.M. had any issues regarding making decisions or any evidence before me that I could place weight upon that A.M. struggled with task completion.57
97Given all of the reasons set out above, and incorporating my analysis under the ADL and SF domains, I find that the appropriate level of impairment to be assigned to A.M. in the AD domain is a class 2 “mild” impairment such that A.M.’s impairment level in the AD domain is compatible with most useful functioning.
98In summary, I find that A.M. sustained a class 2 “mild” impairment in the ADL, CPP and AD domains and a class 1 “no” impairment in the SF domain as a result of the accident. Therefore, A.M. has failed to prove on a balance of probabilities that she sustained a CAT impairment as defined by s. 3(2)(f) of the Schedule as a result of the accident.
Non-Earner Benefits
99I find that A.M. does not meet the eligibility test for entitlement to NEBs for the period of January 26, 2017 to April 1, 2018 or from April 2, 2018 to date and ongoing. As a result, any dispute regarding the quantum of NEBs is moot.
100The test for entitlement to a NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.
101Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.
102“Substantially all” is not defined in the Schedule. However, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.”58
103In closing submissions, both parties referred to Heath v. Economical Mutual Insurance Company,59 wherein the Court of Appeal held that:
…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.60
104Heath also outlines several principles for the determination of entitlement to NEBs as follows:
(i) there must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;
(ii) the applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, and the duration of that period will depend on the facts of the case;
(iii) all of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life;
(iv) the applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities (this means that the disability or incapacity must be uninterrupted);
(v) “engaging in” should be interpreted from a qualitative perspective, such that even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity; and,
(vi) if pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can perform those activities.61
105In this matter, the parties agreed that the reasonable period to assess A.M.’s pre-accident life circumstances and activities was when A.M. arrived in Canada in 2015, which I have thoroughly canvassed as part of my determination of the issue of CAT impairment. To summarize, I find that the following reflects A.M.’s pre-accident activities and life circumstances upon her arrival in Canada:
(i) A.M. was diagnosed with major depressive disorder and major depressive episode;
(ii) A.M. had poor sleep, energy, appetite, concentration and memory;
(iii) A.M. was constantly weepy;
(iv) A.M. was extremely socially isolated and spent all of her time inside the family’s apartment;
(v) A.M. was independent with her personal care;
(vi) A.M. was not working or volunteering and did not have a driver’s licence; and
(vii) A.M. communicated with her family in the United Kingdom on a regular basis.
106Also, in summary of my findings above, I do not accept that prior to the accident, A.M. was:
(i) attending ESL classes;
(ii) going out to the park with her son and walking;
(iii) going to the mosque on a weekly basis for 3 to 4 hour periods;
(iv) grocery shopping; and
(v) having friends to her apartment and going to other persons’ homes.
107Relying upon Dr. Eisen’s February 25, 2019 report and A.M.’s hearing testimony, I found above that, post-accident, A.M.:
(i) is independent with her personal care activities;
(ii) shares household chores with her husband including the dishes;
(iii) sweeps and mops the floor, dusts, makes the beds and vacuums the family’s apartment;
(iv) still has not fully returned to meal preparation duties;
(v) is less intimate with her husband;
(vi) attended a wedding in 2018 and traveled to Ottawa;
(vii) is able to raise her daughter who was three-years-old at the time of the hearing and that she views herself as a good mother;
(viii) is able to pick up her daughter for short periods of time;
(ix) keeps in frequent contact with her family in the United Kingdom;
(x) grocery shops with her husband twice a week and is able to attend a shopping mall with him for up to one and a half hours;
(xi) is able to go to the park with her family in the warmer weather;
(xii) continues her daily prayers at home; and
(xiii) attends Medina Fine Foods with her husband and daughter to socialize with friends twice a week for up to three hours each time.
108In her testimony, A.M. confirmed that the most important job in her life was being a mother.
109A.M. is claiming NEBs beginning on January 26, 2017. I find that A.M. failed to prove on a balance of probabilities when her daily activities and circumstances began to improve post-accident. Clearly, A.M.’s depression continued post-accident as evidenced by the medical documents but there is simply no information before me that I can place weight on when A.M.’s improvements began. While A.M.’s improvements likely occurred over time, I have no evidence that this period of time was within or outside of the period in dispute for NEBs.
110For example, only two Disability Certificates (“OCF-3s”) were filed as evidence for the hearing – one dated April 4, 2016, which was completed by Mr. Mohannad Bakri, physiotherapist, and the second was dated December 9, 2016, which was completed by Dr. Joseph Paton, chiropractor. While both documents indicated that A.M. suffered a complete inability to carry on a normal life, the anticipated duration of this inability in both OCF-3s expired long before the period in dispute for NEBs began.
111Dr. Keith’s CNRs also show no accident-related visits beyond January 23, 2017 until January 4, 2018 despite A.M. attending seven times during this period for various other reasons. Likewise, the CNRs from St. Joseph’s Healthcare Hamilton only report A.M. attending post January 2017 for headache-related complaints and due to a seizure event on August 27, 2018.
112I am also unable to give weight to the various other medical reports relied upon by A.M. that were completed during the period in dispute for NEBs.
113In an undated In-Home Assessment Report by Cynthia Forster, registered nurse,62 Ms. Forster reported that she completed an examination of A.M. on February 10, 2017. I am unable to give weight to this report and Ms. Forster’s findings for the following reasons:
(i) there is no information if an interpreter was present for the assessment, there is no indication of the length of the assessment and the report is undated;
(ii) Ms. Forster was provided no reports or medical documentation to review at the time of her evaluation of A.M.;
(iii) the extent of A.M.’s health history noted by Ms. Forster was lacking given A.M.’s substantial medical history as Ms. Forster simply wrote, “Epilepsy Meds.;”
(iv) Ms. Forster reported that A.M. went to the hospital the day following the accident which is contrary to the CNRs from St. Joseph’s Healthcare Hamilton that showed A.M. first attended that hospital five days after the accident;
(v) in terms of A.M.’s activities of daily living, it is unclear from Ms. Forster’s report if Ms. Forster observed A.M. complete any of the activities or simulations of the actives or simply reported what A.M. told her without an interpreter what her abilities were; and
(vi) under barriers to recovery, Ms. Forster lists assistive devices that she is recommending for A.M. without any discussion on the reasons or uses for the devices.
114A.M. also relied upon a Neurology Evaluation by Dr. Lance B. Majl, neurologist, dated March 30, 2017.63 In his report, Dr. Majl diagnoses A.M. with post-traumatic migraine headaches and cervicogenic headaches without any discussion or analysis of A.M.’s pre-existing headache complaints and the only documentation that Dr. Majl reviewed in preparation of A.M.’s assessment was A.M.’s OHIP summary. Dr. Majl also diagnosed A.M. with chronic pain, a worsening of pre-existing mood disturbances and sleep difficulty, a moderate myofascial injury of the cervical and lumbar muscles and noted that A.M. had symptoms of a cervical and left lumbar radiculopathy.64 Dr. Majl also opined that A.M. had a complete inability to carry on a normal life because she was not independent with her personal care activities, had difficulty with her pre-accident care-giving and household duties and was not able to participate in her pre-accident social activities.65
115The difficulty in placing weight upon Dr. Majl’s opinion on A.M.’s complete inability is that his understanding of A.M.’s functionality both before and after the accident contradicts other evidence which may be a result of Dr. Majl only reviewing the OHIP summary as part of his assessment of A.M. For example, Dr. Majl reports that post-accident, A.M. has not been able to resume her pre-accident social activities, such as going out for a walk and coffee with friends, when the medical evidence supports that A.M. was socially isolated pre-accident, staying the majority of the time in her apartment. Moreover, while Dr. Majl noted that A.M. reported not being not independent in her personal care activities and that she required assistance bathing and dressing from her husband, this is contrary to A.M.’s testimony at the hearing that she was able to take care of her personal care and hygiene after the accident.
116The remaining medical reports relied upon by A.M. are those by Dr. Pilowsky dated August 7, 2018, which incorrectly reports that A.M. was, “functioning well in all respects prior to the accident,” and, “enjoyed an active social life”66 pre-accident and the September 2018 CAT determination reports which all report A.M.’s level of function far below that which was observed in the surveillance evidence, presented in A.M.’s testimony and observed of A.M. at the hearing.
117Wawanesa conceded that A.M. has not had an easy life and I agree. To A.M.’s credit, she has shown great resiliency and, in my opinion, has greatly improved her life circumstances and participation in post-accident activities. Given her improvement and any indication when it began to occur, I find that A.M. has failed to prove on a balance of probabilities that she suffered from a complete inability to carry on a normal life as a result of the accident within the period of dispute.
Attendant Care Benefits
118I find that A.M. has failed to prove on a balance of probabilities that she is entitled to attendant care benefits from February 10, 2017 to date and ongoing.
119To support her claim for attendant care, A.M. relies upon Ms. Forster’s undated report and an Assessment of Attendant Care Needs form (“Form 1”) dated February 10, 2017 which recommend a total monthly amount of attendant care benefits of $1,510.79.67
120I have set out in paragraph [113] above the reasons that I afford little weight to Ms. Forster’s report. Ms. Forster’s February 10, 2017 Form 1 is also equally problematic and not supported by the evidence. For example, Ms. Forster allocated 280 minutes per week for dressing and 210 minutes per week for undressing which is contrary to A.M.’s evidence that she has completed her own dressing and undressing since the accident. Further, additional time is provided under the category of “mobility,” for assisting applicant from the sitting position and for supervising walking. No evidence was presented at the hearing that A.M. had difficulties with her mobility aside from the length of time she testified that she could walk which was ultimately refuted by the surveillance evidence. Additionally, 90 minutes per week was allocated for bathing and drying A.M. when again, the evidence was that she was independent with her personal care since the accident. Finally, 105 minutes per week were allocated by Ms. Forster for preparing and administering TENS treatment when the TENS machine was denied by Wawanesa and there was no evidence that A.M. ever had a personal use TENS machine.
121I also agree with Wawanesa that no evidence was elicited from A.M. during her testimony regarding the amount of time that she required any assistance to support the amount of attendant care time that Ms. Forster assigned in the February 10, 2017 Form 1.
122For all of the reasons set out above, I find that A.M. has failed to prove on a balance of probabilities that she is entitled to attendant care benefits from February 10, 2017 to date and ongoing. I also note that there was no evidence before me that A.M. incurred any expenses for attendant care benefits or that anyone sustained an economic loss as a result of providing attendant care benefits to A.M. to the date of the hearing.
123Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.
124A.M. bears the onus of proving her entitlement to the claimed assistive devices, neurological assessment, orthopaedic assessment and needle EMG assessment by proving they are reasonable and necessary on a balance of probabilities.68
125For the reasons that follow, I find that A.M. is not entitled to the claimed assistive devices, orthopaedic assessment, needle EMG assessment and the unapproved portion of the OCF-18 seeking funding for a neurological assessment. A.M. is also not entitled to the unapproved portions of the multidisciplinary CAT impairment assessment.
Assistive Devices
126The treatment plan in the amount of $2,010.00 dated February 10, 201769 listed Mohannad Bakri, physiotherapist, as the health practitioner and Ms. Forster as the regulated health professional with the stated goals of pain reduction, increased range of motion and strength and a return to activities of normal living. This treatment plan sought funding for the following assistive devices: memory foam mattress cover; vacuum cleaner, lightweight; orthopaedic devices; pillow, cervical; TENS unit; personal massager; heat pad; brace; and compression stockings.
127Although not explicitly stated in the treatment plan, the recommended items were set out in Ms. Forster’s undated In-Home Assessment Report following her examination of A.M. on February 10, 2017. Although I have thoroughly canvassed Ms. Forster’s report above in paragraphs [113] and [120], I reiterate that that Ms. Forster listed her recommended assistive devices under the heading “barriers to recovery” without any explanation.70 Further, the only assistive device mentioned in her “objective observations/analysis and recommendations” portion of her activity charts in her report is the mattress cover and cervical pillow. Ms. Forster, however, noted that she did not observe A.M.’s sleep issues and solely relied upon A.M.’s reports that she wakes throughout the night and adjusts due to pain. There is no information if Ms. Forster examined A.M.’s current mattress or pillow or any analysis regarding A.M.’s pre-accident sleep issues in making this recommendation. I maintain that I am unable to place weight on Ms. Forster’s recommendations which appear to be the basis for the assistive devices set out in the OCF-18.
128Moreover, A.M. did not testify to the need for the proposed assistive devices during the hearing. The May 31, 2017 Insurer’s Occupational Therapy Examination report by Mr. Gord Hirano, occupational therapist,71 also does not support Ms. Forster’s recommendations. I agree with Mr. Hirano as he stated in his report that there was no evidence in Ms. Forster’s report to support the recommended light weight vacuum cleaner, the TENS machine, orthopaedic shoes and customized orthotics, seat massager, heating pad, back support belt and compression stockings. I also note the challenges Mr. Hirano reported in completing his assessment which included A.M. declining performance of some testing, demonstrating no effort with grip and pinch strength, symptom magnification behaviours, activity avoidance tendencies and inconsistencies between severity of pain complaints and observed activity during the assessment.72 Nonetheless, Mr. Hirano did discuss the recommended mattress cover and cervical pillow with A.M. after self-reporting testing that revealed that A.M.’s pain was a contributor to her difficulty sleeping. Mr. Hirano opined that these devices were not indicated in support of A.M.’s challenge with sleeping. I also note that Mr. Hirano did not provide an analysis or discussion regarding A.M.’s pre-accident sleep difficulties in arriving at his opinion.
129Based on the little weight that I afford to Ms. Forster’s recommendations set out in her in-home assessment report and Mr. Hirano’s report not supporting Ms. Forster’s recommendations, I find that A.M. has failed to prove on a balance of probabilities that the treatment plan for assistive devices was reasonable and necessary.
Neurological Assessment, Orthopaedic Assessment and Needle EMG Assessment
130The treatment plans in dispute for an orthopaedic assessment and a needle EMG assessment and partially in dispute for a neurological assessment were all dated December 9, 2016 and all listed Dr. Paton as the Health Practitioner.
131Wawanesa denied the proposed orthopaedic assessment and needle EMG assessment on December 23, 2016 and provided notice to A.M. of her required attendance at insurer’s examinations. Wawanesa also partially denied the treatment plan for the proposed neurological assessment on January 30, 2017.
132At the hearing, Dr. Paton attended to testify but Wawanesa sought to exclude his testimony from the hearing record as Dr. Paton brought material with him to aid in his testimony that had not been previously disclosed to Wawanesa. After hearing submissions from the parties and providing Wawanesa an opportunity to review Dr. Paton’s materials, I denied Wawanesa’s request because I found that Dr. Paton’s testimony was relevant.
133A further issue arose during Dr. Paton’s testimony, however, regarding the treatment plans for the neurological, orthopaedic and needle EMG assessment. In direct examination, Dr. Paton confirmed that the copies of all three of the disputed treatment plans included in the Joint LAT Hearing Document Brief were not signed by either Dr. Paton or A.M. despite Dr. Paton stating that it was his intention to sign them.
134On cross-examination, Dr. Paton agreed with Wawanesa that it was only his assumption, as opposed to his recollection, that he completed the disputed treatment plans and that he potentially could have forgotten to sign them. Dr. Paton also confirmed that he completed an OCF-3 dated December 9, 2016, which was also submitted as evidence for the hearing,73 that was signed by both him and A.M. unlike the OCF-18s.
135Section 38(3) of the Schedule requires treatment plans to be signed by both a regulated health professional and the insured person unless the insurer waives the signature requirement of the insured person. The Schedule does not set out what constitutes a waiver.
136Section 38(2) states that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3) with some limited exceptions which are not applicable in this case.
137Despite no evidence being before me that Wawanesa raised the lack of signatures on the disputed treatment plans at any time before the hearing and it also partially approved the treatment plan for a neurological assessment, Wawanesa argued at the hearing that the treatment plans are not payable because they were not signed by Dr. Paton or by A.M. in accordance with s. 38(3) of the Schedule.
138While I agree with other Tribunal decisions that have rejected an insurer’s raising arguments regarding s. 38(3) compliance at the hearing given the consumer protection nature of the Schedule and the electronic submissions of treatment plans through HCAI,74 the facts before me in this case are distinguishable.
139In this case, the OCF-3 and OCF-18s that were completed by Dr. Paton all listed his facility name as Meditecs Independent Medical Examinations. Wawanesa requested the clinical notes and records (“CNRs”) from Meditecs in its case conference summary dated March 28, 2014 which I referred to in my oral decision at the hearing to not exclude Dr. Paton’s testimony. Following the case conference in this matter on April 1, 2019, the Tribunal ordered A.M. to produce the CNRs from Meditecs to Wawanesa by no later than July 26, 2019.75 Wawanesa maintained that the CNRs from Meditechs were not produced as requested. A.M.’s counsel conceded that the CNRs from a related business, Spinetech, were produced to Wawanesa and not Meditecs. Given the non-disclosure of Meditech’s CNRs prior to the hearing, I find that Wawanesa would not have been aware or able to confirm the issue of non-compliance with s. 38(3) of the Schedule until Dr. Paton attended the hearing with his materials. It was only upon Wawanesa being provided an opportunity to review Dr. Paton’s material that non-compliance with s. 38(3) was confirmed as submission of OCF-18s through HCAI does not allow for signed forms to be submitted to insurers at first instance. As a result, a provider who is submitting OCF-18s through HCAI is required to print the OCF-18 and retain a physically signed copy in the applicant’s file at the treating facility. It was clear that Dr. Paton did not have any such physical signed copy of any of the disputed OCF-18s in his materials which were not provided to Wawanesa prior to the hearing despite its request for same.
140Finally, it was clear to me that A.M.’s counsel was aware of the issue of non-compliance with s. 38(3) as Dr. Paton was asked in direct examination if he had signed the three treatment plans. However, at no time did A.M.’s counsel seek to introduce any evidence before the close of the hearing that the OCF-18s were in fact signed by either Dr. Paton or A.M. despite having time to do so as Dr. Paton testified on day 2 of the 3 day in person hearing which ultimately concluded 5 days later via teleconference for closing submissions. The absence of the signed OCF-18s along with the evidence of the signed OCF-3 of the same date as the disputed treatment plans leads me to find that the OCF-18s for the neurological, orthopaedic and needle EMG assessment were not signed by Dr. Paton or by A.M. As such, these three OCF-18s fail to comply with the requirements set out in s. 38(3) of the Schedule and, therefore, Wawanesa is not liable to pay for these treatment plans pursuant to s. 38(2).
CAT Impairment Assessment
141Section 25(1)5 of the Schedule provides that an insurer shall pay for reasonable fees for the determination of whether the insured person has sustained a CAT impairment, including any assessment or examination necessary for that purpose.
142To determine entitlement, A.M. must prove on a balance of probabilities that each constituent assessment that makes up the multidisciplinary CAT impairment determination assessment is reasonable and necessary.
143The June 12, 2018 treatment plan in dispute for the CAT impairment assessment was completed Dr. Milad and sought funding for a multidisciplinary CAT impairment assessment in the total amount of $25,659.25. Wawanesa partially approved the treatment plan in the amount of $12,679.75 which left the following portions of the treatment plan in dispute:
(i) Biopsychosocial assessment ($2,000.00) and related travel time for Social Worker (Nazila Isgandarova) @ $140.00/hour X 3 hours ($420.00);
(ii) Functional Ability Evaluation ($2,000.00);
(iii) Psychiatric evaluation – Part 2 ($2,000.00);
(iv) Neuropsychological Assessment – Part 1 ($2,000.00) and Part 2 ($2,000.00);
(v) Occupational Therapy Situational Assessment ($2,000.00);
(vi) $199.50 ($299.25 less $99.75 approved) for three hours of travel time for Occupational Therapist (Mr. Amchislavsky) at a rate of $99.75/hour; and
(vii) $360.00 ($540.00 less $180.00 approved) for transportation for A.M. to attend the CAT assessment clinic for a minimum of 6 times (90 kms @ $0.50/km).
144On June 9, 2020, A.M. withdrew her claim for Part 2 of the Psychiatric evaluation and Part 2 of the neuropsychological assessment.
145For the reasons that follow, I find that A.M. is not entitled to payment for any of the denied assessments and the unapproved portions for travel time included in the multidisciplinary CAT impairment assessment as they are not reasonable and necessary.
Biopsychosocial Assessment and Social Worker Travel Time
146The OCF-18 sought funding in the amount of $2,000.00 for a biopsychosocial assessment by Ms. Nazila Isgandarova and associated travel time in the amount of $420.00 ($140.00 per hour times three hours). I find that a biopsychosocial assessment is not reasonable and necessary because:
(i) The OCF-18 states that the assessment would only focus on A.M.’s social functioning and deterioration or decomposition in work or work like settings when A.M. was not working pre-accident;
(ii) The OCF-18 states that the assessment would address the presenting problem and the environmental factors, medical factors and psychological factors that affect A.M.’s impairments without any explanation as to why this information could not be gathered from the various other approved assessments;
(iii) Although the OCF-18 stated that the biopsychosocial assessment would be completed to assist a psychiatrist in assigning impairment levels for a Criterion 8 CAT impairment determination, it is clear that Dr. Vitelli was able to provide opinions as to A.M.’s level of impairment in the four domains to arrive at his opinion that A.M. sustained a CAT impairment under Criterion 8 without the necessity of this assessment; and
(iv) A.M. failed to provide any further information or evidence as to the reasonableness and necessity of the biopsychosocial assessment and simply read out the information contained on the OCF-18 in closing submissions.76
147For these reasons, I find the biopsychosocial assessment is not reasonable and necessary. As a result, the associated travel time for Ms. Isgandarova to complete the biopsychosocial assessment is also not reasonable and necessary.
Functional Ability Evaluation
148I also find that the proposed Functional Ability Evaluation (“FAE”) is not reasonable and necessary. While the OCF-18 states that the FAE may be the, “most important part of the evaluation as each of the selected tests is an objective measure of functional loss which is the definition of ‘impairment,’”77 A.M. submitted that the FAE would go to her ability to work and typical work duties despite the fact that A.M. was not working pre-accident. A.M. also failed to provide me with information following my request as to what additional information the FAE would give that was different than the occupational therapy in-home assessment.
149Given A.M.’s pre-accident employment status and that FAEs typically provide useful information on function specifically in the context of the workplace, I find that A.M. has failed to prove that the FAE was reasonable and necessary on a balance of probabilities.
Neuropsychological Assessment – Part 1
150I find that A.M. is not entitled to Part 1 of the neuropsychological assessment as she has failed to prove that it was reasonable and necessary.
151The additional comments regarding Part 1 of the neuropsychological assessment in the OCF-18 state that, “a neuropsychological assessment is addressing [the] Central Nervous System which consists of [the] brain and spinal cord, as well as Muscular and Peripheral Nervous Systems. Neurological assessment also addresses pain in general, including chronic pain (my emphasis added).”78 The OCF-18 stated that the neuropsychological assessments would provide a WPI rating as per the Guides in order to determine A.M.’s current neuro-cognitive functioning, including memory, attention and concentration issues, even though there is not always an obvious brain injury.
152Wawanesa denied funding for Part 1 of the neuropsychological assessment on the basis that A.M. did not have any head trauma as a result of the accident and that there was no documented ratable cognitive impairment.79
153A.M. argues that Wawanesa’s denial of Part 1 of the neuropsychological assessment did not take into consideration A.M.’s epilepsy. I do not agree that simply having epilepsy pre-accident automatically renders Part 1 of the neuropsychological assessment reasonable and necessary especially as I previously found that the accident did not cause or worsen A.M.’s epilepsy.
154Further, while I appreciate that A.M. had post-accident complaints of memory and concentration issues, these complaints existed pre-accident. Moreover, a proposed neurological assessment in the amount of $2,000.00 was approved by Wawanesa as part of the multidisciplinary CAT impairment assessment but it was not completed by A.M. A neurological assessment in conjunction with Dr. Vitelli’s report, especially given the reference to a “neurological assessment” as opposed to a “neuropsychological assessment” in the additional comments portion of the OCF-18 in support of the neuropsychological assessment, leads me to concluded that A.M.’s complaints of memory and concentration issues could likely have been adequately canvassed between these two approved assessments. For all of these reasons, I find that Part 1 of the neuropsychological assessment was not reasonable and necessary.
Occupational Therapy Situational Assessment
155I find that A.M. is not entitled to the occupational therapy situational assessment as it was not reasonable and necessary.
156The OCF-18 stated that the purpose of the occupational therapy situational assessment was to evaluate A.M.’s current level of functioning in the community with regards to her activities of daily living, concentration, persistence and pace as well as her ability to make adaptations to stress. The OCF-18 noted that the assessment would be performed in a local community environment and entail rating of A.M.’s performances in various tasks involving community management. Notably, the OCF-18 stated that this assessment is completed in order to assist a psychiatrist in providing a psychiatric evaluation based on Criterion 8 with regards to A.M.’s impairment in the three domains of ADLs, SF and CPP.
157A.M. argued that in addition to the reasons provided for in the OCF-18 as to the reasonableness and necessity of the occupational therapy situational assessment, this assessment was required given A.M.’s reported low level of functioning in the community, that she only kept in close contact with her family members and given her experiences as a refugee in Canada.
158Wawanesa denied the occupational therapy situational assessment noting that no situation assessment was performed by Mr. Amchislavsky as part of his occupational therapy assessment which Dr. Vitelli relied upon. Further, Dr. Vitelli was able to assign A.M. impairment ratings in the ADLs, SF and CPP domains without an occupational therapy situational assessment.
159I disagree with Wawanesa that no situational assessment was completed by Mr. Amchislavsky as part of his occupational therapy assessment of A.M. Mr. Amchislavsky’s report was completed using several methodologies including a “situational community assessment in order to assess physical-functional, cognitive and psycho-emotional tolerances with community management,” which was performed at the “local community” on July 31, 2018.80 Further, under the heading of “Community Mobility,” Mr. Amchislavsky provided two tasks to A.M. which required her to leave her residence for completion. Mr. Amchislavsky noted that these tasks were 5 minutes and 10 minutes in duration.81
160I find that A.M. has failed to prove on a balance of probabilities that the occupational therapy situational assessment was reasonable and necessary. Mr. Amchislavsky assigned community tasks to A.M. as part of his occupational therapy assessment. No evidence was presented at the hearing that Dr. Vitelli required a separate occupational therapy situational assessment to arrive at his impairment designations. Also absent from Dr. Vitelli’s report was any discussion or comments about any gaps or further information that he required from an occupational therapy situational assessment to provide a further analysis or to confirm his impairment ratings of A.M.
Travel Time
161$199.50 and $360.00 remain in dispute for Mr. Amchislavsky’s travel time (3 trips) and A.M.’s travel time to the assessment clinic (6 trips), respectively. I find that A.M. is not entitled to either of these amounts as they are not reasonable or necessary.
162A.M. made no submissions on the reasonableness and necessity of the travel time and payments for same in closing submissions.
163Wawanesa partially denied the travel time amounts by only allocating one visit for Mr. Amchislavsky and two trips to the CAT assessment clinic for A.M. as opposed to the six trips sought in the application.
164As I have found that the occupational therapy situational assessment, which was to be completed by Mr. Amchislavsky, to not be reasonable and necessary, and Mr. Amchislavsky only attended A.M.’s residence on one occasion on July 31, 2018, I find that the additional amounts sought for Mr. Amchislavsky’s travel time to and from A.M.’s residence are not reasonable and necessary.
165Further, while the OCF-18 noted that A.M. lives 90 kilometers away from the clinic, A.M. only attended the CAT assessment clinic on July 17, 2018 for Dr. Vitelli’s assessment and on July 13, 2018 for Dr. Milad’s assessment. There was no mention in these two reports that A.M. was required to, or it would have been preferred to, re-attend the assessment clinic in addition to these two days for any further assessment. As three trips to the assessment clinic were approved and A.M. only traveled there twice, I find that any additional payments for A.M.’s travel time are not reasonable and necessary.
Award
166A.M. is not entitled to an award because I have found that there are no benefits owing to her.
Interest
167Because I have found that there are no benefits or costs that are overdue, no interest is payable.
CONCLUSION
168For the reasons outlined above, I find:
(i) A.M. did not sustain a CAT impairment under Criteria 7 or 8 as a result of the accident;
(ii) A.M. is not entitled to a non-earner benefit;
(iii) A.M. is not entitled to attendant care benefits;
(iv) A.M. is not entitled to the claimed assistive devices, orthopaedic assessment, needle EMG assessment and the unapproved portion of the OCF-18 seeking funding for a neurological assessment;
(v) A.M. is not entitled to the unapproved portions of the multidisciplinary CAT impairment assessment;
(vi) A.M. is not entitled to an award or interest; and
(vii) This application is dismissed.
Released: June 19, 2020
Lindsay Lake
Adjudicator
Footnotes
- O. Reg. 34/10.
- Joint LAT Hearing Document Brief, tab 4.
- In the Tribunal’s April 1, 2019 Order, the amount of non-earner benefits was not in dispute. However, A.M.’s counsel raised the issue of quantum of non-earner benefits after 2 years post-accident in his closing submissions.
- While A.M.’s claim for interest was not set out in the Tribunal’s April 1, 2019 Order as an issue in dispute, A.M. clearly claimed interest in her Application by an Injured Person dated September 14, 2018. As there was no indication that the issue of interest had been resolved or otherwise dealt with at the case conference, I find that the omission of this issue from the April 1, 2019 Order was likely a clerical error and, as such, interest remains an issue that requires a determination as part of this decision.
- There was no dispute between the parties that A.M.’s soft-tissue injuries were caused as a result of the accident.
- Sabadash v. State Farm et al., 2019 ONSC 1121.
- Ibid. at para. 39.
- Joint LAT Hearing Document Brief, tab 26, page 617.
- Ibid. at page 1.
- Ibid. at page 3.
- Joint LAT Hearing Document Brief, tab 26, page 503.
- Ibid. at page 5.
- Ibid. at pages. 2-3.
- Ibid. at page 3.
- Ibid. at page 5.
- Ibid. at page 3.
- Ibid. at pages 3 and 5.
- Joint LAT Hearing Document Brief, tab 56.
- Ibid. at page 9.
- Ibid. at page 8.
- Psychological Report by Dr. J. Pilowsky dated August 7, 2018, Joint LAT Hearing Document Brief, tab 43.
- Catastrophic Impairment Determination Psychological Evaluation Report by Dr. Romeo Vitelli dated September 23, 2018, Joint LAT Hearing Document Brief, tab 77.
- Supra note 21 at pages 12-13.
- Supra note 22 at pages 18-19.
- Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at para. 30.
- Schedule, s. 3(2)(e).
- Schedule, s. 3(2)(f).
- See page 322 of the Guides and the Combined Values Chart.
- Guides at page 294. The full name for “Adaptation” is actually, “Deterioration or decomposition in work or work life setting.”
- Ibid. at page 301.
- Joint LAT Hearing Document Brief, tab 79.
- Ibid. at page 9.
- See N.C. v TD Insurance Meloche Monnex, 2020 CanLII 27411 (ON LAT) at para. 19.
- I reserved on this objection at the hearing and proceeded with Dr. Milad’s evidence as a matter of efficiency.
- Joint LAT Hearing Document Brief, tab 76.
- Ibid. at page 19.
- Ibid. at page 17.
- A.M. testified that her youngest daughter was born in June 2016.
- Guides at pages 322-323.
- Ibid. at page 294.
- 2012 ONCA 642, 2016 ONCA 642 [“Pastore”].
- Supra note 8 at page 1.
- Ibid. at page 3.
- Supra note 11 at page 5.
- Supra note 18 at pages 14-15.
- Guides at page 294.
- Supra note 22 at page 22.
- Ibid. at pages 15-16.
- Guides at page 294.
- Supra note 22 at page 24.
- Joint LAT Hearing Document Brief, tab 59.
- Supra note 18 at page 16.
- Guides at pages 294-295.
- Supra note 22 at page 28.
- Supra note 18 at pages 16-17.
- Joint LAT Hearing Document Brief, tab 45, page 1161.
- Mr. Amchislavsky’s September 12, 2018 report included assigning two tasks to A.M. for completion outside of her home (page 24). Mr. Amchislavsky reported that the first task lasted 5 minutes and the second task was terminated after 10 minutes and A.M. failed to complete individual instructions that were given to her for task completion. As I have discussed at paragraph [46] however, Mr. Amchislavsky’s reporting of A.M.’s functionality was contradicted by surveillance evidence and it is unknown if the task completion was affected by the absence of an interpreter at this assessment.
- See 16-003195 v State Farm Insurance Company, 2017 CanLII 99136 (ON LAT) at para. 10.
- 2009 ONCA 391 (“Heath”).
- Ibid. at para. 50.
- Ibid.
- Joint LAT Hearing Document Brief, tab 33.
- Joint LAT Hearing Document Brief, tab 38.
- Ibid. at page 8.
- Ibid. at page 9.
- Supra note 21 at page 7.
- Joint LAT Hearing Document Brief, tab 34.
- Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
- Joint LAT Hearing Document Brief, tab 13.
- Supra note 62.
- Joint LAT Hearing Document Brief, tab 54.
- Ibid. at page 5.
- Joint LAT Hearing Document Brief, tab 36.
- See S.J. v Aviva Insurance Canada, 2019 CanLII 76996 (ON LAT) at paras. 31-34 and 17-005631 v. Aviva Insurance Canada, 2019 CanLII 63375 (ON LAT) at paras. 24-33.
- Order by Vice Chair White dated April 1, 2019.
- Dr. Milad also testified that the denied portions of the OCF-18 for the multidisciplinary CAT impairment determination assessment were not necessary for him to arrive at an opinion as to whether or not A.M. sustained a CAT impairment as a result of the accident. However, given my concerns over Dr. Milad’s expertise in applying the Guides as discussed in paragraphs [39] to [44] above, Dr. Milad’s opinion, while worthwhile to note, formed no part of my conclusions on the reasonable and necessity of the portions of the OCF-18 in dispute.
- Joint LAT Hearing Document Brief, tab 23, page 11.
- Ibid. at page 11.
- Insurer’s Examination – Paper Review by Dr. Darrin Milne dated November 13, 2018, Joint LAT Hearing Document Brief, tab 61, page 8.
- Supra note 35 at page 5.
- Ibid. at page 24.