Citation: Shalto v. Intact Insurance Company, 2022 ONLAT 19-014473/AABS

Licence Appeal Tribunal File Number: 19-014473/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:

Jihan Shalto

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Jihan Shalto, Applicant

Aaron Zaaltz, Counsel

For the Respondent:

Kevin Kane/Joanna Lemon, Adjuster

Darrell March, Counsel

Interpreter

Kameron Akrawi/Samar Ibrahim - Arabic

Court Reporter:

Bruce Porter/Anthony Ng

HEARD: by Videoconference:

Nov 29 – Dec 2, Dec 13 – 14, 2021; Apr 11-14, 19 & 20, 2022

OVERVIEW

1The applicant, J.S., was injured in an accident on May 29, 2016, and sought benefits from the respondent, Intact, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”). In June 2020, J.S. applied to Intact for a determination that her accident-related impairments met the definition of catastrophic (“CAT”) impairment under the Schedule. Intact conducted insurer examinations (“IEs”) and determined that J.S.’s accident-related impairments do not meet the definition of CAT.

2J.S. disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the ‘Tribunal”) for resolution of the dispute.

ISSUES

3I have been asked to decide the following issue:

a. Did J.S. suffer a CAT impairment as a result of the accident, in accordance with section 3(2)(f) of the Schedule?

4If J.S. is found to have suffered a CAT impairment, then I must determine the following:

a. Is J.S. entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week for the period of May 29, 2016 to date and ongoing?

b. Is J.S. entitled to an attendant care benefit (“ACB”) in the amount of $4,469.10 per month, for services recommended by Q Medical Assessment Centre for the period of August 19, 2019 to date and ongoing?

c. Is the medical benefit in the amount of $1,964.00 for chiropractic treatment recommended by Shadi Jahandideh-Sheijani in a treatment plan (OCF-18) dated January 10, 2018, and denied on February 8, 2018, reasonable and necessary?

d. Is the medical benefit in the amount of $3,828.20 for chiropractic treatment recommended by Shadi Jahandideh-Sheijani in an OCF-18 dated May 7, 2018, and denied on May 22, 2018, reasonable and necessary?

e. Is the medical benefit in the amount of $3,416.56 for psychological services recommended by Aparna Sekhar in an OCF-18 dated March 5, 2018, and denied on March 19, 2018, reasonable and necessary?

f. Is the medical benefit in the amount of $3,341.75 for psychological services recommended by Aparna Sekhar in an OCF-18 dated May 7, 2018, and denied on May 22, 2018, reasonable and necessary?

g. Is the medical benefit in the amount of $2,486.00 for psychological services recommended by Doreen Payan in an OCF-18 dated October 23, 2019, and denied on November 4, 2019, reasonable and necessary?

h. Is the medical benefit in the amount of $14,012.00 for medical services, recommended by Doreen Payan in an OCF-18 dated October 23, 2019, and denied on November 4, 2019, reasonable and necessary?

i. Is the cost of examination in the amount of $2,486.00 for a psychological assessment recommended by Doreen Payan in an OCF-18 dated October 23, 2019, and denied on November 4, 2019, reasonable and necessary?

j. Is the medical benefit in the amount of $2,401.25 for medical services recommended by Doreen Payan in an OCF-18 dated October 11, 2019, and denied on October 30, 2019, reasonable and necessary?

k. Is the medical benefit in the amount of $1,755.89 for medical services recommended by Doreen Payan in an OCF-18 dated October 2, 2019, and denied on October 17, 2019, reasonable and necessary?

l. Is the medical benefit in the amount of $339.28 for medical services recommended by Jane Legaspi in an OCF-18 dated October 2, 2019, and denied on October 17, 2019, reasonable and necessary?

m. Is the cost of examination expense in the amount of $2,818.51 for an attendant care assessment recommended by Jane Legaspi in an OCF-18 dated June 26, 2019, and denied July 10, 2019, reasonable and necessary?

n. Is the cost of examination expense in the amount of $1,400.00 for a functional cognitive assessment recommended by Evgeni Amchislavsky in an OCF-18 dated April 4, 2017, and denied on April 19, 2017, reasonable and necessary?

o. Is the cost of examination expense in the amount of $12,000.00 for catastrophic determination recommended by Naguib Milad in an OCF-18 dated May 31, 2016, and denied on June 8, 2018, reasonable and necessary?

p. Is J.S. entitled to interest on any outstanding payments of benefits in accordance with s. 51 of the Schedule?

q. Is J.S. entitled to an award under Ontario Regulation 664, R.R.O. 1990?

r. Is Intact entitled to costs?

5The parties agreed at the hearing, that the remaining issues would be addressed pending the outcome of the CAT impairment determination.

FINDING

6J.S. did not sustain a CAT impairment as a result of the accident.

7J.S. is not entitled to the disputed benefits as she did not establish that they are reasonable and necessary, and no interest is payable.

8J.S. is not entitled to an award.

9Intact is not entitled to costs.

Criterion 8 – Mental and Behavioural Impairments

10As a result of the accident, J.S. suffered several injuries, documented in the June 13, 2016 Disability Certificate (“OCF-3”)². The injuries listed on two OCF-3s dated January 9, 2017 and June 13, 2016 are as follows: myalgia, closed spine fracture, sleep disorder, other chronic pain.

11On June 1, 2020, the applicant submitted an Application for Catastrophic Determination (“OCF-19”) under s. 3(2)(f)³ of the Schedule (commonly known as Criterion 8) signed by Dr. Mathoo, physiatrist, which deals with mental and behavioural impairments. These impairments are assessed under Chapter 14 of the Guides.⁴

12The Guides do not use percentages to establish mental/behavioural impairments in the same manner that physical injuries are determined. Mental and behavioural impairments are rated in accordance with how seriously they affect a person’s useful daily functioning. The chart below sets out the four areas used to determine levels of functioning and impairment.⁵

Area or Aspect of Functioning

Class 1:

No Impairment

Class 2: Mild Impairment

Class 3:

Moderate Impairment

Class 4:

Marked Impairment

Class 5:

Extreme Impairment

Activities of Daily Living

No impairment is noted

Impairment levels are compatible with most useful functioning

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

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

Social Functioning

Concentration, Persistence and Pace

Adaptation (Deterioration in a work-like setting)

13In order to meet the threshold for CAT impairments under Chapter 14, an applicant must have sustained a marked (Class 4) or extreme (Class 5) impairment as a result of the accident in any one of the four areas of functioning due to a mental or behavioural disorder.⁶

14In the subject proceeding, J.S. asserts that she suffers a marked impairment in adaptation and concentration, persistence and pace due to a mental or behavioural disorder. Intact takes the position that J.S. does not suffer a marked impairment in any of the four areas of functioning due to a mental or behavioural disorder. Its assessors determined that J.S. suffered a mild (Class 2) impairment in adaptation and concentration, persistence and pace.

ANALYSIS

Did the accident cause J.S.’s impairments?

15I find that the accident was not a necessary cause of J.S.’s psychological impairment.

16The test to determine causation in accident benefits is the “but for” test. It is well-settled that the test was set out by the Divisional Court in Sabadash v. State Farm, 2019 ONSC 1121, which I am bound by. In order to establish causation, J.S. must prove on a balance of probabilities that “but for” the accident, she would not have suffered the impairments which contributed to her application for CAT status. In Sabadash, the court established that the existence of pre-existing medical issues does not negate the insurer’s liability. The court further established that the accident need not be the only cause of the impairment but a necessary cause. For the reasons to follow, I find that the accident was not a necessary cause of J.S.’s psychological impairment.

Did J.S. suffer a catastrophic impairment as a result of the May 29, 2016 accident?

17The test to determine the issue of catastrophic impairment due to mental or behavioural disorders was established by the Court of Appeal in Pastore⁷. The Court set out the following three step approach:

a. Did the accident cause the applicant to suffer a mental or behavioural disorder?

b. If it did, what is the impact of the mental or behavioural disorder on the applicant’s life?

c. In view of the impact, what is the level of impairment?

Did the accident cause J.S. to suffer a mental or behavioural disorder?

18I do not find that the accident was a necessary cause of J.S.’s psychological impairments. I base my finding on my conclusion that J.S. reported to the clinical counsellor Emily Tibbits in a March 20, 2018 note, that she has lost around 20 people (friends and family) to the war in Syria. Further, there has been the loss of two friends to cancer. In addition, her daughter was struggling in school for a period of time and her son had a run-in with the police.

19In my view, these unrelated factors significantly impacted her mental well-being, as J.S. was very emotional during her testimony regarding these circumstances. These same circumstances were noted in the reports of the s. 25 and s. 44 assessors, which will be discussed below.

20In analyzing causation, it is necessary to consider J.S.’s pre- and post-accident life to determine the extent that any accident-related impairment affected her functional ability. During her testimony, J.S. provided the following regarding her pre-accident history:

a. She prepared meals for her family independently, she was able to perform all housekeeping tasks, and grocery shopping. She was independent with her self-care and personal hygiene tasks.

b. She attended school and was taking English language and computer courses.

c. She would frequently spend time with friends, go shopping and socialize with family and friends.

d. Her relationships with her husband and children were good, they would travel frequently and spend a lot of time together.

21J.S. submits that her accident-related impairments resulted in her psychological impairments. She testified about her post-accident life as follows:

a. She attempted to return to school but was not able to due to pain and not able to focus.

b. She is unable to manage the household budget and is forgetful with her words and tasks.

c. Her relationship with her husband and children has been impacted. Her husband rarely sleeps in the same room/bed, they frequently argue, and she is short-tempered and yells at her children.

d. She no longer regularly engages in social functions, exercise and spending time with friends.

e. She keeps in contact with family by video on her telephone, and only spends in person time with one or two friends on an infrequent basis.

f. She no longer is able to take care of her family and home like she did pre-accident, explaining that she does not cook as often, and she needs help with cleaning and laundry.

g. She also reported being anxious when having to travel in the car, and her sleep has been affected.

22Intact argued the issue of causation, and I agree with its position that there were significant pre- and post-accident factors that J.S. reported on that were noted to be of significance.

23Both J.S. and Intact rely on various psychiatric and psychological reports in support of their respective positions as to whether J.S. suffered a mental or behavioural disorder as a result of the accident. However, the medical professionals have diagnosed J.S. with various findings and the parties disagree on the appropriate diagnosis.

24J.S.’s treating practitioners have diagnosed her with anxiety, phobia and depression⁸. Regarding reports of accident-related psychological impairments, J.S. reported:

a. no loss of awareness or amnesia (neurologist Dr. Rathbone – September 10, 2018);

b. no loss of consciousness or impact to her head (psychiatrist Dr. Waisman – November 17, 2018);

c. no loss of consciousness or amnesia (neuropsychologist Dr. Duhamel – May 30, 2017); and

d. Glasgow Coma Scale score noted to be 15 on several occasions and only back pain indicated, no other pain complaints noted (ortho Dr. Paitich – April 18, 2019).

25In my view, these reports of the s. 25 assessors do not confirm that J.S. suffered from any psychological impairments as a result of the accident, as these findings are consistent with someone who is confirmed not to have suffered a brain injury. These reports are not helpful in support of J.S.’s claim of catastrophic impairment.

26Intact’s s. 44 insurer examination (“IE”) assessors found that:

a. a formal psychological diagnosis was not possible due to symptom magnification (Dr. Koepfler, psychologist); her responses showed signs of symptom exaggeration (Dr. West, neuropsychologist);

b. she did not suffer a neuropsychological impairment as a result of the accident (Dr. Duhamel, neuropsychologist); and

c. J.S. suffered a Class 2 impairment in the area of concentration, persistence, pace and adaptation (Dr. Sivasubramanian, psychiatrist).

27I find that despite the differences in diagnoses, amongst the medical practitioners, on the whole, the medical evidence does support that J.S. suffered some level of psychological impairment as a direct result of the accident. In particular, Dr. Sivasubramanian notes a Class 2 impairment, which I find persuasive, as he reviewed the medical records as part of his assessment, and was able to review previous assessor reports, including some of the s. 44 reports. Dr. Sivasubramanian concluded that the accident was the cause of J.S.’s psychological impairment.

28However, I must still consider the impact of the accident on J.S.’s daily functioning, in order to determine if she suffered a catastrophic impairment as a direct result of the accident.

What is the impact of the mental or behavioural disorders on J.S.’s life?

29Although I am directed to the clinical notes and records (“CNRs”) from her treating physicians, I note that many of her complaints are either not accident-related or fail to mention any psychological complaints. I also note several physical pain complaints reported to treating and assessing practitioners, however, as the issue before me is determining impairment under Criterion 8, I reserve comment on her physical injuries.

30J.S. relied on psychological progress notes in support of her position, which addressed her accident-related impairments. Psychologist Aparna Sekhar in her January and March 2017 reports, notes that J.S. suffers from significant anxiety, vehicular phobia, and depression that has impacted her ability to properly function in her activities of daily living as she was able to pre-accident.

31On the evidence, I find that J.S. was a credible witness that was able to articulate the impact the accident has had on her life. I do not doubt there was a level of trauma experienced as a result of the accident. What the decision turns on, is the severity of the impairment in each of the four domains, being mild, moderate, marked or extreme in accordance with the Guides.

What is the severity of any limitations J.S. may suffer from in relation to concentration, persistence, pace and adaptation?

32I find that J.S. is not catastrophically impaired because her impairments do not meet the requirement of being “marked” within any of the four domains. Dr. Zakzanis’s and Dr. Sivasubramanian’s reports are important to my finding.

33Dr. Zakzanis diagnosed J.S. with major depressive disorder, single episode, moderate, adjustment disorder with anxiety, specific phobia, situational – vehicle and somatic symptom disorder with predominant pain, moderate. Dr. Zakzanis opined that the “breadth and severity would not have occurred but for the accident.” With respect to estimating a rating under emotional or behavioural impairments, Dr. Zakzanis concluded that J.S. scored a 40% whole person impairment (“WPI”). In combining her physical impairment rating (20%) with the mental and behavioural score of 40%, the resultant score is a WPI rating of 52%.

34Dr. Zakzanis did acknowledge that the 52% WPI falls below the required 55% threshold. Dr. Zakzanis further relied on the mental status examination, file review, the in-home activities of daily living situational observations, the community situational observations and the social work assessment. Based on his review of these documents, and his own assessment, he concluded that J.S. meets the Chapter 14 Table definition of a Class 4 (marked) mental and behavioural impairment among two of the four spheres of function, those being concentration, persistence, and pace and adaptation. Dr. Zakzanis concluded that J.S. suffered a 67% WPI.

35While Dr. Sivasubramanian makes similar findings to those of Dr. Zakzanis, he concludes that J.S. suffers a moderate impairment in in the four areas of functioning. On the evidence, J.S. is able to engage in several of her pre-accident activities, including meal preparation, attending medical appointments, cleaning, laundry, attending Canadian Citizenship class and socializing outside of the home on occasion. While she reports that these activities have been impacted as a result of the accident, I find her physical pain complaints have had more of an impact on her engagement in these activities, than her psychological impairments have.

36I prefer the report from Dr. Sivasubramanian over that of Dr. Zakzanis because Dr. Zakzanis does not consider the breadth of J.S.’s abilities to continue to engage in a number of her pre-accident activities. While he does note that she reported a decreased ability or level of participation, I find that her abilities to continue to do so, albeit with physical pain, is not indicative of a 40% WPI rating. Further, with a total rating of 67% WPI, I find that this score would be indicative of an individual with a much more severe level of disability, which is not present in J.S.’s case.

CONCENTRATION, PERSISTENCE and PACE

37I find that J.S.’s level of impairment in this category is moderate.

38The Guides require consideration of an individual’s ability to sustain focused attention long enough to permit the completion of tasks. For example, in activities of daily living, concentration may be present in terms of one’s ability to complete everyday household tasks.

39Similarly with the determination under social functioning, the parties’ medical experts rated J.S. as moderately (Class 3) impaired under concentration, persistence and pace.

Occupational Therapy Assessments

Section 25 assessment - Elyse Freedman

40On behalf of J.S., an occupational therapy assessment report was prepared by Elyse Freedman. In the February 6, 2020 report, Ms. Freedman noted significant impediment of useful functioning in spheres of decreased insight into her personal health and safety; self-initiation/sustaining of meaningful daily routine, daily task integration and an inability to recall personal and health-related information. Lastly, Ms. Freedman noted J.S.’s impairments preclude useful functioning in spheres of an ability to meet work-like demands such as school attendance and housekeeping.

41Despite Ms. Freedman’s opinions, which suggest a Class 4 or Class 5 level of impairment, I disagree with this opinion. J.S. contradicts what she reported to other assessors about her functional capabilities; for example, her successful completion of her Canadian Citizenship course, which requires a significant level of memorization, concentration, persistence and pace.

42I disagree with J.S.’s impairments being at the level of “significant impediment” and “precluding useful functioning” on a psychological basis. On the evidence, I find that J.S.’s physical pain complaints to be more of a barrier and causing impediments and at times precluding useful functioning. On this basis, I find the report of Ms. Bhatnagar to be persuasive, and consider it below.

Section 44 assessment – Alexandra Bhatnagar

43Intact relied on the April 18, 2019 s. 44 IE report of Alexandra Bhatnagar, who noted that J.S. was “oriented to person, date and time.” Ms. Bhatnagar reported J.S.’s ability to follow conversation and properly answer questions, including timeline questions and recollect treatment providers. Regarding physical and functional testing, J.S. was able to follow multi-level instructions. Cognitive testing resulted in a scoring indicative of difficulty with attention, language, abstraction and delayed recall. It was also noted that J.S. seldomly goes out and mainly stays home lying down for most of the time due to pain.

44I prefer the report of Ms. Bhatnagar as I find her report supports that many of J.S.’s limitations are pain-based (as J.S. also reported to Ms. Freedman) and are not captured under Criterion 8.

45The rating for this category was similar for the medical experts for both parties, where J.S. was rated as moderate (Class 3). While J.S. reported that each sphere was impacted as a result of the accident, she was still able to function, albeit with some pain, in most of the areas. She reported independence with her self-care, personal hygiene, and eating. She did not cook as often, now only 2-3 times per week and/or with the assistance of her children. She did make attempts to return to school, however, was not able to do so on a long-term basis. She did complete the Canadian Citizenship course, which required extensive communication, speaking and writing.

46While she did report discomfort with standing and sitting for long periods, this was not due to any psychological impairment. She reported that she would often take the bus or sometimes walk to appointments and on occasion, be driven by her son or travel long distances by car. She does not regularly engage in relations with her husband; however, she does stay connected with her family and friends by using her phone to video chat.

47The occupational therapy assessors on behalf of J.S. and the IE assessors noted that J.S. was appropriately dressed and groomed during assessments. While there were occasions where she needed to take breaks during the assessments, it was noted to be pain related and some feelings of anxiety being in public settings. However, when the assessments were rescheduled, she was able to participate and engage in the required tasks to eventually complete the required assessments. While Intact relied on surveillance evidence, I place little weight on the surveillance, as it only captures snapshots of J.S.’s activities outside of her home on an infrequent basis.

48For these reasons, I am persuaded by the report of Ms. Bhatnagar, that J.S. was not significantly impeded or suffering from psychological impairments that preclude useful functioning. I do not find her accident-related psychological impairments meet the threshold of a Class 4 or Class 5 impairment, therefore not meeting the threshold of a marked or extreme impairment.

Psychological Assessments

Section 25 assessment – Dr. Peric-Todorovic

49In her report dated September 18, 2016, Dr. Peric-Todorovic applied the Beck Depression Inventory test, the Beck Anxiety Inventory test and the Perceived Stress Scale. Testing results revealed severe depression, severe anxiety and a severe level of stress. Dr. Peric-Todorovic noted that although J.S. receives treatment for her physical injuries, she has not addressed the psychological aspect of any accident-related impairments. Dr. Peric-Todorovic opined that J.S. suffers from significant psychological impairments as a direct result of the accident. Dr. Peric-Todorovic diagnosed J.S. with generalized anxiety disorder, severe depression disorder without psychotic features and specific (isolated) phobia.

Section 44 assessment – Dr. Koepfler

50In her April 25, 2018 report, Dr. Koepfler noted that J.S. had previously received 24-hour long sessions of counselling, but indicated that her condition hadn’t changed as a result of this treatment. Dr. Koepfler noted the impact on her adult life from the war in Syria. J.S. reported that she felt “fed up” with the psychological treatment she previously received. I noted that J.S. reported that she travelled by car regularly and used public transportation independently. Dr. Koepfler’s report discussed a report from Dr. Duhamel, neuropsychologist, who noted that J.S. had not sustained a neuropsychological injury. Dr. Duhamel opined that J.S.’ prescription history was indicative of a history of cognitive impairments prior to the accident that were interfering with her academic studies.

51Dr. Koepfler went on to comment on a report from psychological treatment provider Aparna Sekhar, who noted in a May 19, 2017 progress report that J.S. “became stuck in her mind when experiencing fear, and instead of using techniques, she preferred to isolate herself and stay home.” Dr. Koepfler noted that it appeared J.S. was not taking the advice given to her, i.e. to avoid lying in bed all day and napping, which interfered with her night sleep.

52Testing did not result in a formal diagnosis, as Dr. Koepfler noted J.S.’s tendency to magnify her difficulties on paper-pencil testing. Dr. Koepfler opined that no psychological disability is anticipated in daily activities.

53On the evidence, I prefer the report of Dr. Koepfler over that of Dr. Peric-Todorovic. Dr. Koepfler noted in her report, that J.S. stated, “she has little interest in continuing with this (psychological) therapy.” J.S. reported to Dr. Koepfler that although she experienced some benefit from counselling, she has not engaged in many of the recommendations that were made.

54J.S. did not argue that it was her inability to concentrate, stay persistent or her pacing that prevented her from continuing treatment. She still engaged in a variety of activities, notably taking the bus to and from appointments, attending school classes, meal prep, and occasional outings with a friend. I find these several examples, which require various levels of concentration, persistence and pace, are indicative that J.S. was able to maintain to completion of said task. On the evidence, it appears that her physical pain was a significant contributing factor in her limitations to engage in daily activities as noted with many of her assessments that she was not able to complete due to pain and had to reschedule to continue.

55Therefore, I concur with the determination that J.S. suffered a moderate (Class 3) impairment in the domain of concentration, persistence and pace.

ADAPTION – DETERIORATION OR DECOMPENSATION IN WORK OR WORK-LIKE SETTINGS

56Dr. Zakzanis and Dr. Sivasubramanian disagree on J.S.’s impairment rating under this sphere. I find that J.S.’s level of impairment is moderate.

57Under adaptation, the Guides set out that the consideration of one’s ability to respond appropriately to changes in the work setting or to be aware of normal hazards and take appropriate precautions, to use public transportation and travel to and within unfamiliar places, and to set realistic goals and to make plans independently of others.

58On the evidence, I prefer Dr. Sivasubramanian’s moderate rating over Dr. Zakzanis’ marked rating, because I find Dr. Sivasubramanian’s rating to be more in line with the evidence on a whole and J.S.’s self-reported level of functioning.

59J.S. made several attempts to return to school, although she reported that she was not able to and stopped attending. However, she also reported that her desire to return to school was put on hold as she was dealing with the issues with her children. Her focus was no longer on school, but on the welfare of her children.

60As noted earlier, post-accident, J.S. enrolled in a Canadian Citizenship class, completed the course, took the test and was able to receive her Canadian Citizenship, which I find to be a realistic goal for a recent immigrant to Canada. There is also evidence that she took several long-distance car-rides (to attend funerals). While I am mindful of her reduced engagement in various areas of social functioning and daily activities, I find she has still managed to participate in many of her pre-accident activities, both within her home and outside of it.

61While she reports a decrease in her functional abilities, I do not find that her reduced ability equates to a marked level of impairment. J.S. has not put forth evidence that she is unable to appropriately function in public places, she is not completely secluded from her family, or suffering from a traumatic brain injury. Further, she testified that she would walk and/or take the bus to her family physician or other medical appointments, demonstrating an ability to plan, use public transportation and travel to various destinations.

62For the reasons above, I find that she has suffered a moderate impairment, that fails to meet the threshold of a catastrophic determination.

Are the benefits in dispute reasonable and necessary?

63It is my understanding that J.S. has reached the limit of her non-catastrophic limits. Further, as J.S. has not established that she suffered a catastrophic impairment as a result of the accident, it is not necessary to determine whether the medical benefits are reasonable and necessary.

64As remaining benefits in dispute are not payable and no benefits are outstanding, it follows that there is no determination to be made regarding whether interest is payable.

AWARD

65Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which an insured was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that an insurer has “unreasonably” withheld or delayed payments.

66As I have found that J.S. is not catastrophically impaired, no benefits are payable and therefore Intact cannot have unreasonably withheld or delayed payments.

67Accordingly, I find that an award is not appropriate.

COSTS

68Intact seeks its costs in this proceeding, pursuant to Rule 19 of the Tribunal’s Common Rules of Practice and Procedure. Rule 19 provides that costs may be awarded where a party believes that another party has acted unreasonably, frivolously, vexatiously, or in bad faith.

69Here, Intact argues that J.S. filed an application for a CAT impairment determination, knowing that her case was unsuccessful, that she filed “late” Motions which caused delay, failed to provide the necessary productions as set out in the Tribunal Orders, and lastly, further delay caused by the hearing brief not being properly formatted.

70I disagree. J.S. claimed to be CAT impaired based on her ongoing complaints that were a result of the accident. She sought opinions on her post-accident condition, which she believed supported her claim for a CAT determination. I do not find that her application was frivolous and unwarranted, as Intact’s own assessors did find some similarities to the findings of J.S.’s assessors, further supporting her belief that she may have a valid claim. Second, Intact also filed “late” Motions as the hearing was about to begin, for example, on an extensive list of productions that it submits were not provided, which I found that J.S. had made best efforts, including providing proof thereof, to obtain. Lastly, regarding the hearing brief, while I do agree the lack of proper format did cause delay, I do not find that such action warrants costs against J.S.

71The threshold for costs is high, and whether it was an oversight or for whatever other reason, I do not find that an improperly assembled hearing brief meets the threshold for frivolous, vexatious or bad faith.

CONCLUSION

72For the reasons outlined above, I find that J.S. has not met her burden to prove on a balance of probabilities that she suffered a catastrophic impairment as a direct result of the accident.

73Further, none of the remaining benefits are reasonable and necessary. No payments for benefits are outstanding or unreasonably withheld or delayed. Accordingly, J.S. is not entitled to an interest or an award.

74Intact is not entitled to costs.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2Disability Certificate dated June 13, 2016 description of injuries includes, but not limited to: concussion, headache, fracture of thoracic vertebra T7-T12, WADII, sprain/strain – cervical/thoracic/lumbar spine and pelvis, muscle strain, low back pain, subluxation complex (vertebral), nausea, sleep disorders, injury of muscle/tendon – neck, thoracic spine pain, malaise and fatigue, tension-type headache, restlessness and agitation, unhappiness, nervousness, and, symptoms of depressive episode.
3. 3Section 2(1.1) of the Schedule states that the previous Schedule’s provisions on catastrophic impairment, e.g. s. 3(2), apply to accidents from September 1, 2010 to before June 1, 2016 – which applies to this case.
4. 4American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, Ch.14.7: Mental and Behavioural Disorders.
5. 5Ibid, pg. 301, Table 1
6. 6Pastore v. Aviva, 2012 ONCA 642 at para. 43
7. 7Pastore v. Aviva Canada Inc., 2012 ONCA 642 para. 6.
8. 8Dr. Peric-Todorovic, psychologist – September 9, 2016 report; Dr. Kachooie, psychiatrist – noted in a March 7, 2017 report; Scarborough Medical Centre – January 11, 2017 entry; Dr. Sekhar, psychologist – January 11, 2017 and March 1, 2017 progress reports; Dr. Waisman, psychiatrist – November 17, 2018 psychiatric evaluation report; Dr. Zakzanis, psychologist – June 1, 2020 report.