Citation: [S.V] v. Wawanesa Insurance, 2022 ONLAT 20-001009/AABS

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

Between:

[S.V]

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

[S.V], Applicant

Anthony Mancuso, Counsel

Ramandeep Minhas, Co-Counsel

For the Respondent:

Darrell March, Counsel

Interpreter

Irina Iudina, Russian Language

Court Reporter:

Victory Verbatim (Various Court Reporters)

HEARD:

By videoconference on May 10, 11, 20, 21, 2021 and continued on July 7, 8 and 9, 2021

OVERVIEW

1[S.V], (the “applicant”) was involved in an automobile accident (“accident”) on September 12, 2016, and sought benefits from Wawanesa Mutual Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule (the “Schedule”) - Effective September 1, 2010 (including amendments effective June 1, 2016)¹. The respondent denied the applicant’s entitlement to various benefits including an income replacement benefit, attendant care, medical benefits and cost of examination expenses. The applicant also applied to the respondent for a determination that his accident-related impairments met the definition of catastrophic (CAT) impairment under the Schedule. The respondent conducted insurer examinations (IEs) and determined that the applicant’s accident-related impairments did not meet the definition of CAT.

2The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The matter proceeded to a seven-day videoconference hearing. On behalf of the applicant, I heard the testimony of the applicant, Dr. Yaroshevky, psychiatrist, Julian Amchislavsky, occupational therapist (OT), Lital Grinberg, psychotherapist and Natalya Khramtsova, registered nurse. The respondent did not call any witnesses.

3Both parties filed document briefs with the Tribunal which consisted of thousands of pages of medical records. At the outset of the hearing, I informed the parties that if they wanted me to consider a document, they would have to identify it and request that it be entered as an exhibit. I also reminded the parties of the importance of identifying records relating to the other issues in dispute and not to just focus on the CAT determination.

4The parties agreed that if they did not submit evidence through the testimony of a witness, that they would identify documents relevant to the issues in dispute in their closing submissions. In its closing submissions, the respondent identified various records it relied upon. Despite being reminded throughout the hearing to identify treatment plans regarding the medical benefits in dispute or records relating to the IRB issue, the applicant did not refer me to any additional records in his closing submissions. It is well established that if the Tribunal believes that a party meant to rely upon a document but failed to submit it, the Tribunal may request the party to submit the evidence for its consideration. I have declined to do so in this case as I provided the parties with several opportunities during the hearing to direct me to the evidence relevant to the issues in dispute.

ISSUES

5I have been asked to decide the following issues:

i. Did the applicant sustain a catastrophic impairment as defined under the Schedule?

ii. Is the applicant entitled to receive a weekly income replacement benefit, in an amount to be determined from September 19, 2016 to date and ongoing?

iii. What is the amount of weekly income replacement benefit that the applicant is entitled to receive?

iv. Is the applicant entitled to an attendant care benefit in the amount of $2,582.29 per month from September 12, 2016 to date and ongoing?

v. Is the applicant entitled to a medical benefit in the amount of $76,900.00 for dental services recommended by Treger Dentistry Professional corporation in a treatment plan (OCF-18) denied on July 15, 2019?

vi. Is the applicant entitled to $2,000.00 for a temporomandibular joint (tmj) assessment, recommended by Dr. Leon Treger in an OCF-18 denied January 18, 2017?

vii. Is the applicant entitled to a medical benefit in the amount of $2,460.00 for medical services recommended by Michael Goldfeld, in an OCF-18 denied on April 18, 2019?

viii. Is the applicant entitled to medical benefits and cost of examination expenses recommended by 101 Physio Medical Rehabilitation Centre (“101 Physio”) in the following OCF-18s:

a) $4,015.12 for physiotherapy denied December 23, 2019;

b) $499.54 ($1,238.94 minus $739.40 approved) for assistive devices denied November 25, 2016?

c) $355.93 ($812.54 minus $456.61 approved) for assistive devices denied November 15, 2016?

d) $2,000.00 for an orthopaedic assessment denied November 15, 2016?

e) $560.00 for a chiropractic assessment denied November 15, 2016?

f) $2,000.00 for an attendant care assessment denied January 20, 2017?

g) $2,200.00 for a functional cognitive occupational therapy assessment, denied September 13, 2017?

h) $2,128.51 for an attendant care needs assessment, denied September 11, 2018?

i) $1,895.00 for a nutritional assessment denied December 13, 2017?

ix. Is the applicant entitled to an award under s.10 of Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?

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

xi. Is the respondent entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (the “Rules”)?

RESULT

6After reviewing all of the evidence and for the reasons that follow, I find:

i. The applicant did not sustain a CAT impairment as a result of the accident.

ii. The applicant is not entitled to any of the benefits claimed, an award or interest.

iii. The respondent is not entitled to costs pursuant to Rule 19.

BACKGROUND

7The applicant was involved in an automobile accident on September 12, 2016, when his vehicle was t-boned by another vehicle. The applicant maintains that as a result of the impact he hit his head on the steering wheel damaging his two front teeth. Police attended the scene and the applicant declined ambulance services. He was driven home by the tow truck driver and later reported the accident at a self-reporting collision centre. Later that evening he had severe low back pain, so he went to the hospital. A CT scan revealed that he had a L5 disc protrusion. He remained in the hospital for four days, was discharged but was readmitted due to concerns about spinal cord compression for another three days. He followed up with his family doctor and began treatment at 101 Physio.

8On July 4, 2019, the applicant submitted an application for a CAT determination under section 3.1(1)(8) of the Schedule (Criterion 8) based on a mental and behavioural impairment. These impairments are assessed under Chapter 14 of the Guides.² Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The below chart sets out the four spheres of functioning and the levels of impairment.³

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

No impairment is noted

Impairment levels are compatible with most useful functioning

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

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

Activities of Daily Living

Social Functioning

Concentration, Persistence and Pace

Adaptation (Deterioration in a work-like setting)

9In order to meet the threshold for a CAT impairment under Chapter 14, an individual must have sustained a marked (class 4) or extreme (class 5) impairment as a result of the accident in three of the four spheres of functioning due to a mental or behavioural disorder.

10Both parties agree that the applicant has a moderate impairment in the sphere of concentration, persistence and pace so I need not address it. They disagree about the applicant’s level of impairment in the remaining spheres. The applicant asserts that he suffers a marked impairment in activities of daily living, social functioning and adaptation due to a mental or behavioural disorder. The applicant relies on the CAT reports completed by 101 Physio. The respondent takes the position that the applicant does not suffer a marked (class 4) or extreme (class 5) impairment in any one of the four areas of functioning due to a mental or behavioural disorder. Its assessors determined that the applicant sustained a mild (class 2) impairment in activities of daily living and social functioning and a moderate impairment (class 3) in adaptation. The respondent relies on the CAT assessments of Westpark Assessment Centre (“Westpark”).

11This matter is complicated by the fact that the applicant had a significant pre-accident medical history. He also had several falls post-accident in which he sustained physical impairments. The respondent argues that the accident did not cause the applicant’s physical or psychological impairments that form the basis of his application for a CAT determination. It maintains that the applicant had serious health issues pre-accident and that the accident was not the cause of the applicant’s impairments and resulting functional limitations.

12The applicant asserts that the accident caused his impairments and functional limitations. Therefore, before I determine whether or not the applicant meets the threshold for CAT under Criterion 8, I will first address the issue of causation.

ANALYSIS

Did the accident cause the applicant’s impairments?

13I find that the accident was a cause of the applicant’s psychological impairment.

14Both parties agreed that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident he would not have suffered the physical and psychological impairments which form the basis for his application for the disputed benefits. The court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment but a necessary cause. As per my reasons below, I find that the accident was a cause of the applicant’s psychological impairment.

15In analyzing causation, it is necessary to compare the applicant’s pre and post-accident life to determine to what extent any accident related impairment affected his ability to function. The applicant provided the following testimony regarding his pre-accident activities:

i. He was healthy and did not have any significant medical issues. He did not suffer from any pain and did not have a history of any psychological impairments;

ii. He was happily married and lived with his wife and two step-children;

iii. He was self-employed as a painter and worked approximately 50 hours per week;

iv. He was independent with self-care activities and housekeeping and home maintenance tasks;

v. He was socially outgoing and enjoyed going to restaurants with friends; and

vi. He enjoyed recreational activities such as playing basketball, cycling, rollerblading and going to movies.

16The above testimony was consistent with what the applicant reported to the assessors. The applicant submits that his accident related physical impairments resulted in chronic pain syndrome which resulted in his psychological impairment. He testified that post-accident his life has drastically changed as:

i. He is in constant pain which limits him from doing most activities;

ii. His accident-related impairments resulted in the breakdown of his marriage because his impairments interfered with sexual intimacy, his ability to carry out his housekeeping tasks and ability to work;

iii. He now lives with his mother and is fully dependent on her for support;

iv. He is socially withdrawn and rarely leaves his home;

v. He no longer drives and suffers from passenger anxiety which limits his mobility within the community; and

vi. He no longer participates in any recreational activities.

17The respondent submits that the applicant is not credible as there are extraordinary inconsistencies in the evidence about the applicant’s pre and post-accident status. Therefore, the applicant’s self-reports to assessors are not reliable. The respondent highlighted various contradictions in the medical records which challenged the applicant’s pre-accident medical, marital and functional status.

18The applicant submitted the decision of the Divisional Court in Sit v. Trillium Health Centre, 2020 ONSC 2458 (Sit v. Trillium) which sets out the factors to consider when assessing credibility which include the following:

i. The demeanor of the witness;

ii. Does the evidence make sense in light of the preponderance of probabilities which a practical and informed person would find reasonable?

iii. Does the evidence have an internal consistency and logical flow?

iv. Is the evidence consistent with the witnesses other statements?

v. Is there independent conferring or contradictory evidence? and

vi. Is there a motivation to lie or exaggerate?⁴

19The applicant’s testimony and self-reports to assessors about his pre-accident medical status was undermined by the medical record before me, which supports that he had significant pre-accident physical impairments. In the five-years leading up to the accident he suffered from chronic neck and low back pain. He also had the misfortune of having several falls which resulted in a significant brain injury and other physical impairments. The evidence supports that in the year before the accident, he had a fall in which he fractured his arm and was diagnosed with tendonitis in his right shoulder as well as left-hip osteoarthritis. In addition, an MRI revealed that he had a central disc protrusion impinging a nerve in the lumbar spine which was causing him great pain.

20During cross-examination, the applicant was asked about the various pre-accident falls and he responded with “I don’t remember” to almost every question. However, when probed further he seemed to have an explanation for things. For example, he was asked about his pre-accident balance issues and he replied by saying “I didn’t feel dizzy before the accident but would sometimes wake up in the middle of the night and hit my head against a wall.” I find that a reasonable person would find it difficult to accept this explanation as logical. In my view, the applicant’s pre-accident health issues more than likely affected his ability to function in his daily activities and employment in the year before the accident. The applicant’s lack of recall about his pre-accident medical status was not the only contradiction.

21The applicant testified that prior to the accident he was happily married and lived with his wife and two stepchildren. Three-months following the accident the applicant maintains his marriage fell apart because his impairments impacted his ability to be sexually intimate with his wife, limited his ability to complete household chores and resulted in his inability to work resulting in financial difficulties. Of significance, a few of the pre-accident medical records refer to the applicant having a girlfriend. During cross-examination the applicant explained that he was simply referring to a friend that was female. I might accept this explanation if it were the only inconsistency. However, these types of discrepancies are a pattern throughout the evidentiary record. For example, the applicant reported to assessors that he did not smoke or drink. The evidence supports that he is a smoker and had a history of substance abuse. During cross-examination, the applicant stated that the doctor who reported that he had a history of substance abuse was lying. I do not accept this explanation as there was no motivation for this doctor to be untruthful as it was an emergency hospital report which was unrelated to the accident.

22The applicant was also irregular throughout the claim in reporting that he lost consciousness as a result of the accident. Depending on the day he reported losing consciousness to some assessors and to others he did not. The hospital emergency records from the night of the accident do not document any loss of consciousness, head injury or damaged teeth. What I find lacking from the applicant’s evidence was any clinical notes and records (CNRs) from the hospital, dentist or his family doctor documenting these accident related impairments. In my view, where causation is an issue objective medical evidence is important. Instead, there are large gaps of missing information that either do not exist or were not submitted for my consideration.

23This matter is further complicated by the applicant’s post-accident medical history as he had several falls which also resulted in physical impairments. The applicant submits that as a result of the accident he suffered from dizziness which caused the post-accident falls. As already highlighted, the applicant had significant balance and gait issues pre-accident.

24Even the applicant’s own assessor, Dr. Gofeld raised credibility issues in the chronic pain report dated May 7, 2019 as the doctor refers to him as being a bad historian. The report notes that the interview was difficult to conduct because of the applicant’s depressed mood and gaps in memory. Dr. Gofeld acknowledges the significance of the applicant’s pre-accident medical history and indicates that he was not forthcoming about it. In opining on causation Dr. Gofeld states that “based on the mechanism of injury, pre-existing conditions and medical evaluation it is more likely than not that the accident has materially contributed to the worsening of his health status in physical, mental and emotional domains.”

25The respondent relied on surveillance evidence in support of its position that the applicant is not credible. The surveillance video depicts an individual walking in the parking lot of the applicant’s home and driving to a construction site. The applicant testified that it was not him in the video. I believe the applicant on this point. After reviewing the surveillance video, I am not convinced that the individual in the video is the applicant as that person was heavier set and has a different facial structure. Therefore, I have given the surveillance evidence no weight.

26Based on the evidence before me I find it difficult to differentiate what physical impairments and functional limitations existed before the accident, to what were sustained in the accident from those which occurred after the accident. Having said that, the evidence supports that the applicant did not have any psychological issues pre-accident. However, even the respondent’s psychological/psychiatric IE assessors determined that the applicant sustained a psychological impairment as a result of the accident and that his condition has deteriorated.

27None of the respondent’s experts testified regarding whether the applicant’s pre or post-accident medical history would have changed their opinions. Therefore, their opinions remain unchallenged. Although I have determined that the respondent has raised legitimate credibility issues, I cannot disregard the medical evidence of its assessors. For example, the IEs of Dr. Moshiri completed in 2017 and Dr. Peterkin completed in 2018 both diagnosed the applicant with a psychological impairment as a result of the accident. Dr. Wolf’s psychological IE completed in 2020 determined that the applicant presented with a number of depressive symptoms which were consistent with major depressive disorder with anxious distress. Further, Dr. Wolf acknowledged the applicant’s pre and post-accident health issues but still opined that the subject accident likely played a role in his psychological symptoms. Therefore, I find that the accident was a cause of the applicant’s psychological impairment. Now I will address whether I find the applicant’s psychological impairment resulted in a marked impairment under Criterion 8.

Did the applicant sustain a catastrophic impairment as a result of the accident?

28I do not find that the applicant sustained a catastrophic impairment as I do not find he sustained a marked impairment in activities of daily living, social functioning or adaptation as a result of his accident-related psychological impairment. Since the Schedule requires three marked impairments in three spheres of functioning the applicant does meet the threshold.

SOCIAL FUNCTIONING

29I agree with the respondent and find that the applicant has a mild impairment in the sphere of social functioning for the following reasons.

30According to the Guides, this area of functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. It is not only the number of aspects in which social functioning is impaired that is significant, but also the overall degree of interference with a particular aspect or combination of aspects.⁵

31All of the assessors who have interacted with the applicant reported that he communicated with them in an effective and pleasant manner. He did not show signs of irritability or have any angry outbursts. The applicant’s testimony about his post-accident social functioning was also inconsistent with what he reported to assessors. To the majority of assessors, he reported being socially withdrawn or having fights with family and friends. However, he reported to Dr. Peterkin that he has a good relationship with his mother and friends and sees his ex-wife’s children once a week. In addition, he also testified that despite the Covid pandemic he still keeps in touch with a group of five close friends over the phone. There was also evidence he has attended social gatherings since the accident as one of his post-accident falls happened while attending a party.

32Overall, I do not find the CAT assessments relied on by the applicant persuasive. The applicant relied on the CAT psychiatric report of Dr. Yaroshevsky which I find lacking in detail and analysis regarding the four spheres of functioning. For example, the bulk of the report provides quotes from other medical assessments and Dr. Yaroshevsky heavily relied on the OT report of Mr. Amchileskvy who focussed on the applicant’s physical versus psychological limitations. Further, Dr. Yaroshevsky acknowledged during cross-examination that he depended on the applicant’s self-reports and failed to carry out any collateral interviews with friends, family members or treating practitioners. The Guides set out that collateral interviews are a tool that should be utilized by medical practitioners when carrying out assessments under Chapter 14.

33In addition, Dr. Yaroshevsky did not review any of the applicant’s pre-accident clinical notes and records in completing his assessment. During cross-examination, the doctor acknowledged the importance of reviewing pre-accident medical records and that other factors could have contributed to the applicant’s psychological presentation. For these reasons, I find it difficult to accept Dr. Yaroshevsky’s opinion and give his report little weight.

34I also find Mr. Amchilevsky’s OT assessment to be of limited value because it focussed on the applicant’s physical versus psychological limitations which is the basis for his CAT application. Mr. Amchilevsky’s report detailed a community outing which consisted of the applicant walking 200 metres from his home and asking someone for the time. In my view, this brief exercise failed to convince me that the applicant has a marked impairment in social functioning as it is not consistent with the rest of the evidence before me. He also acknowledged during cross-examination that he could not conclude with certainty that the accident caused the applicant’s current functional limitations. This did not help the applicant’s position. Consequently, I find Mr. Amchilevsky’s assessment to be of limited evidentiary value.

35The applicant has not met his onus in proving on a balance of probabilities that he has a marked impairment in social functioning.

ACTIVITIES OF DAILY LIVING

36I agree with the respondent and find the applicant has a mild impairment in activities of daily living as a result of an accident related psychological impairment.

37The Guides specify that activities of daily living include: self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep and social and recreational activities. Any limitation in these activities should be related to the person’s mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual’s overall situation. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.⁶

38As noted above Mr. Amchilevsky’s OT assessment focussed on the applicant’s physical ability to carry out his daily activities. Other than the applicant’s self-reports about being unable to work or having passenger anxiety in a vehicle, very little evidence supports that the applicant was unable to carry out the remainder of his daily activities as a result of his psychological impairment. I find the evidence relied upon by the applicant failed to link his inability to carry out his activities of daily living with his psychological impairment. Further, Mr. Amchilevsky did not observe the applicant attempt to carry out any his daily activities and relied on his self-reports that he is unable to do them because of pain.

39The respondent relied on the CAT assessments of Joseph Wong, OT and Dr. Wolf, psychiatrist. The applicant argues that I should draw an adverse inference from the respondent’s failure to call its CAT assessors to testify at the hearing. The applicant relied on Sit v. Trillium⁷ where the court affirmed the well-established principle that where a medical expert is not called to testify their expert report should be given little to no weight. Although I agree that when a party fails to call an expert witness their opinion remains untested, it does not mean that I am unable to give this evidence any weight. It is important to note that s.15 of the Statutory Powers and Procedures Act⁸ provides authority to adjudicators to consider any relevant evidence. In addition, s.52 of the Ontario Evidence Act⁹ also provides considerable discretion to adjudicators to admit any evidence when it is determined to be relevant.

40Overall, I find Mr. Wong’s situational assessment to be more thorough and better designed to assess an individual’s function from a psychological, emotional, and cognitive perspective. I also find the applicant’s performance in Mr. Wong’s assessment inconsistent with Mr. Amchilevsky’s. For example, Mr. Wong’s report indicates that the applicant was able to pack for a three day trip, compile a list of painting supplies needed to do a painting job, take an uber to home depot and independently navigate the store; and gather a list of the cost of supplies needed to do a job. While the applicant complained of pain and did not do everything perfectly, I cannot overlook the fact that he was unable to walk 200 meters in Mr. Amchilevsky’s assessment to ask someone for the time. As already established, I do not find the applicant credible and his functional performance was inconsistent. Therefore, I do place some weight on Mr. Wong’s findings.

41The applicant has not met his onus in proving on a balance of probabilities that he has a marked impairment in activities of daily living as a result of his accident related psychological impairment.

ADAPTATION

42I do not find that the applicant has a marked impairment in adaptation.

43The Guides define impairment in adaptation as the repeated failure to adapt to stressful circumstances, in the face of which “the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate or having difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.”¹⁰ By definition, impairment in adaptation affects the ability to function across all activity areas. Regarding activities of daily living, their quality is judged by their independence, appropriateness, effectiveness, and sustainability.

44The CAT assessments of Dr. Yuroshevsky and Mr. Amchilevsky do not support that the applicant has a marked impairment in adaptation. Of significance, Mr. Amchilevsky’s OT assessment determined that the applicant has a moderate impairment in this sphere. While the report notes some moderate limitations with certain tasks, it states that the applicant is not limited in the following:

i. Sustaining an ordinary routine without supervision;

ii. Use of judgment in making simple decisions;

iii. Accepting instructions and responding appropriately to feedback; and

iv. Maintaining appropriate behaviours, communication and emotional control.

45As already noted above, Dr. Yaroshevsky heavily relied upon Mr. Amchilevsky’s assessment yet the doctor opined that the applicant has a marked impairment under this sphere without providing any details or analysis with regard to same. For the aforementioned reasons, I have given the evidence of these two assessors little weight.

46The applicant has not met his onus in proving on a balance of probabilities that he has a marked impairment in the sphere of adaptation. The applicant has not met the threshold required for a catastrophic designation.

Is the applicant entitled to payment of an income replacement benefit (“IRB”) from September 19, 2016 to date and ongoing?

47The applicant is not entitled to payment of an IRB from September 19, 2016 to date and ongoing.

48Section 5(1) of the Schedule provides that an insurer shall pay an IRB if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential duties of their pre-accident employment.

49After the 104-week mark, the test for ongoing entitlement to IRBs becomes more stringent. At this point post-accident, the insured must prove that they suffer a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

50Prior to the accident, the applicant maintains that he was self-employed as a painter. A job site analysis completed by Mr. Dennis Polygenis dated March 28, 2018 listed the essential duties of a painter as follows:

i) Carrying and climbing a ladder;

ii) Using rollers and paint brushes;

iii) Immediate and overhead reaching as well as repetitive overhead reaching;

iv) Ability to sit and stand for extended durations and the ability to sustain low level positions; and

v) Lifting and carrying five-gallon containers weighing up to 40 lbs.

51The applicant testified that he cannot work as a painter because of his chronic low back pain and his left shoulder impairment. Despite my prompts and reminders neither party spent much time addressing the IRB issue. The IE assessment of Dr. Peterkin dated March 28, 2018 supports that the applicant sustained a substantial inability from carrying out the essential tasks of his employment, as a result of his accident related psychological impairment. From the evidence submitted by both parties it is unclear when the IRB was denied and for what reason. Therefore, in the absence of a reason for the denial, I conclude that he meets the substantive test for entitlement based on a psychological impairment.

52Having said that, the applicant did not refer me to any financial records in support of his claim for an IRB to support that he sustained an income loss. One of the issues before me was to determine the quantum of the weekly IRBs payable. I am unable to make that determination in the absence of any evidence in support of same.

53The applicant has not met his onus in proving on a balance of probabilities that he sustained an income loss as a result of the accident and is not entitled to an IRB for either the pre-or post-104 time periods.

Is the applicant entitled to an attendant care benefit (ACB) in the amount of $2,582.29 per month from September 12, 2016 to date and ongoing?

54I find the applicant is not entitled to an attendant care benefit for the following reasons.

55Section 19 of the Schedule provides that an insurer is required to pay an ACB for all reasonable and necessary expenses incurred on behalf of an insured person as a result of an accident for services provided by an aid or attendant. A Form 1 prepared by an OT sets out the services and amount of care an individual requires as well as the monthly amount payable. In order to be eligible for payment of attendant care the applicant must prove that the services have been incurred.

56The applicant relied on the attendant care assessment report and Form 1 of Natalyia Karamtsova dated January 15, 2017 in support of his position that he requires attendant care. Ms. Karamtsova’s report and testimony confirmed that as far as she was aware the applicant did not have any pre-accident health issues. However, post-accident he needed assistance with his personal care and completing his activities of daily living as a result of physical impairments and limitations. Ms. Katamtsova’s Form 1 recommended $1,163.94 per month under part 1 for assistance with dressing, undressing, grooming and feeding. Under part 2 she recommended $306.38 per month for maintaining hygiene. Under part 3 she recommended $1,11.97 per month, for assistance with exercise, bathing and other therapy for a total of $2,582.29 per month.

57During cross-examination Ms. Karamtsova acknowledged that she was not aware of any of the applicant’s pre-accident health issues. Of significance, the applicant had a fall thirteen days prior to Mr. Karamtsova’s assessment in which he fractured three ribs. Ms. Karamtsova agreed that the functional imitations experienced by the applicant during her assessment could have been as a result of the fall which shortly preceded her assessment as opposed to the accident. Consequently, I find that the applicant has failed to establish a link between his accident related impairments and his need for attendant care. In addition, the applicant has not proven that he has incurred any attendant care services. Therefore, he has not established that he entitled to the benefit.

58The respondent relied on the OT assessments completed by Jeena Abraham dated May 10, 2017 and Andrew Philips dated December 13, 2017 who determined that the applicant did not require attendant care services as a result of his accident related impairments. In light of Ms. Karamtsova’s evidence I accept their opinions.

59The applicant has not met his onus in proving on a balance of probabilities that he requires attendant care services as a result of his accident related impairments or that he has incurred the benefit.

Is the applicant entitled to the medical benefit and cost of examination expense recommended by Dr. Treger?

60I find the applicant is not entitled to either OCF-18 recommended by Dr. Treger, dentist for the following reasons.

61To receive payment for an OCF-18 under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. It is well established law that in proving that a cost of examination is reasonable and necessary there must be a link between the accident related impairment and the assessment being sought.

62Since both OCF-18s recommended by Dr. Treger involve the same evidence to be concise I will address them together.

63The applicant relied on the report of Dr. Treger dated January 25, 2019 in support of his position that both OCF-18s are reasonable and necessary. The OCF-18 for the tmj assessment was recommended because the applicant reported that he had hit his face against the steering wheel as a result of the accident chipping his two front teeth. The OCF-18 noted that the applicant complained of ongoing headaches and jaw pain. The applicant incurred the assessment and Dr. Treger recommended the OCF-18 in the amount of $76,900.00 for dental implants, extractions and repair.

64The respondent denied the OCF-18 for the tmj assessment relying on the IE assessment of Dr. Ouanounou, dentist who determined that the OCF-18 was not reasonable and necessary as a result of any accident related impairment. Dr. Ouanounou opined that there was no medical documentation which referred to any accident related facial trauma or dental injury. Dr. Ouanounou’s examination revealed that the applicant had very poor oral hygiene, he was missing ten teeth, several teeth had decayed and he diagnosed him with moderate periodontal disease. Dr. Ouanounou concluded that the accident could not have caused these issues and the placement of the damaged teeth were not where the applicant reported the injury. For the following reasons, I prefer the report of Dr. Ouanounou and do not find either OCF-18 reasonable and necessary.

65Other than the assessment of Dr. Treger, the only other evidence in support of the OCF-18s is the applicant’s self-reports to assessors that he hit his head on the steering wheel in the accident breaking his two front teeth. Other than these self-reports there is nothing in the medical records to support that he sustained a head injury or damaged his teeth in the accident. In addition, Dr. Treger did not review any of the applicant’s pre-accident dental records in completing the assessment and relied on the applicant’s self-reports that the accident was the cause of his dental issues. As already established, I find the applicant’s self-reports are not reliable. In addition, Dr. Treger’s report was completed two-years post-accident. In my view, this was a significant gap in time from when the accident happened. For these reasons, I give Dr. Treger’s opinion little weight.

66I find that the applicant has failed to establish a link between his accident related impairment and the OCF-18s for the assessment and treatment being sought. Despite being reminded the applicant failed to submit the OCF-18s in support of the issues in dispute and did not make any submissions to support that the cost of the OCF-18s are reasonable. This is the test which must be met.

67The applicant has not met his onus in proving on a balance of probabilities that either of the OCF-18s recommended by Dr. Treger are reasonable and necessary.

Is the applicant entitled to the remaining medical benefits and cost of examination expenses recommended by Dr. Gofeld and 101 Physio?

68I find the applicant is not entitled to any of the OCF-18s in dispute for both medical benefits and cost of examination expenses for the following reasons.

69The applicant fell far short of meeting his onus in establishing that any of the remaining disputed OCF-18s are reasonable and necessary. Although the applicant was reminded to submit the OCF-18s and direct me to the evidence that same are reasonable and necessary he failed to do so. For example, the applicant did not provide me with information about what assistive devices were denied and why they are reasonable and necessary. Nor did he explain what specific medical goods and services were recommended by Dr. Gofeld. Likewise, no evidence was referred to about the goals of any of the OCF-18s, or why they are reasonable and necessary as a result of the applicant’s accident related impairments. Finally, the applicant did not make any submissions about the cost of same. Nor was I provided with any information that the applicant would benefit from any of the treatment or cost of examinations recommended.

70The applicant has not met his onus in proving on a balance of probabilities that the OCF-18s for the various medical benefits and cost of expenses are reasonable and necessary.

Is the applicant entitled to an award under s.10 of Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?

71The applicant is not entitled to an award.

72Regulation 664, R.R.O. 1990 ( Regulation 664) states that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

73The applicant did make any submissions or refer to any evidence on the award issue. The applicant has not met his onus in proving on a balance of probabilities that the respondent unreasonably withheld or delayed payment of benefits. Therefore, the applicant is not entitled to an award.

Is the respondent entitled to costs pursuant to Rule 19?

74The respondent is not entitled to costs pursuant to Rule 19.

75Rule 19.1 provides that a party may request costs of the proceeding, if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct. Costs are not meant to punish the losing party for being unsuccessful. The respondent has failed to establish that the applicant has acted unreasonably, frivolously, vexatiously or in bad faith during these proceedings. Therefore, the respondent is not entitled to costs.

ORDER

76For all of the above-noted reasons, I find:

i. The applicant did not sustain a CAT impairment as a result of the accident.

ii. The applicant is not entitled to any of the benefits claimed, an award or interest.

iii. The respondent is not entitled to costs pursuant to Rule 19.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, Ch.14.7: Mental and Behavioural Disorders (“Guides”).
3. 3Ibid, pg. 301, Table 1
4. 4Sit v. Trillium Health Centre, 2020 ONSC 2458, para 13.
5. 5Guides, p. 14/294
6. 6Guides, p. 14/294.
7. 7Sit v. Trillium, para 17.
8. 8Statutory Powers Procedure Act, R.S.O. 1990, c. S.22
9. 9Evidence Act, R.S.O. 1990, c. E.23
10. 10Guides, p. 14/294