Citation: Powell v. Aviva Insurance Company of Canada, 2022 ONLAT 19-012928/AABS

Licence Appeal Tribunal File Number: 19-012928/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:

Jayne Powell

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Roger R. Foisy, Counsel

Harpreet S. Sidhu, Counsel

Daniel Berman, Counsel

Rusald Laloshi, Paralegal

For the Respondent:

Suzanne Clarke, Counsel

HEARD:

By videoconference October 18 to 29, 2021 followed by written submissions

OVERVIEW

1The applicant was involved in an automobile accident on February 19, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 [“Schedule”].¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service [“Tribunal”].

ISSUES

2The issues to be decided are:

a. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

b. Is the applicant entitled to attendant care benefits of $644.63 per month from February 19, 2015, and ongoing?

c. Is the applicant entitled to medical benefits of $2,763.50 for occupational therapy services?

d. Is the applicant entitled to medical benefits of $2,593.89 for occupational therapy services?

e. Is the applicant entitled to medical benefits of $2,505.43 for rehabilitation support services?

f. Is the applicant entitled to medical benefits of $5,935.00 for vision therapy?

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

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

Result

3The applicant has sustained a catastrophic impairment as defined by the Schedule. She sustained a marked impairment (Class 4) in Adaptation.

4The applicant is entitled to attendant care benefits at the rate of $644.63 per month from the date the first Form 1 was submitted, subject to the benefits being properly incurred in accordance with section 3(7)(e) of the Schedule.

5The applicant is entitled to $2,593.89 for occupational therapy (professional organizing services) and $5,935.00 for vision therapy.

6She is not entitled to $2,763.50 for aquatherapy sessions with an occupational therapist or $2,505.43 for aquatherapy sessions with a rehabilitation support worker.

7The applicant is entitled to interest on denied benefits, payable in accordance with the Schedule. The respondent is not liable to pay an award pursuant to Regulation 664.

BACKGROUND

Pre-Accident

8The applicant was single with no dependents and lived alone in an apartment above the garage of a detached home. She has a post-secondary degree in French, a diploma in early childhood education and a master’s degree in education. The applicant was employed full time for six years, and at the time of the accident was teaching a grade 3/4 split class in French immersion. She also ran different clubs/after school programs.

9In her youth, the applicant was a competitive synchronized swimmer and played rugby. Prior to the accident, she was a volunteer coach for a local swim team. She had an active social life and had good relationships with friends and family and would host them in her home. She travelled internationally. She was very organized and worked with colleagues to prepare lesson plans.

10Prior to the accident, she dated but was on “hiatus” after a messy breakup, so she did not have any serious romantic relationships.

11The applicant’s medical history reveals that she had issues with her left knee and had arthroscopic surgery in 2011. Knee issues arose again in 2013 and 2014, when she underwent further arthroscopic surgery.

12The applicant also experienced a period of depression in 2008 following her brother’s suicide and sought counselling. A consult note with a psychiatrist in March 2011 indicates that she did not have a major depressive disorder or anxiety disorder, but that her issues were related to family dynamics. Psychotherapy but not pharmacotherapy was recommended. The applicant had issues with anxiety at work in 2010 and was prescribed medication. Another entry in the clinical notes and records in June 2014 notes that she had depression but was feeling better since starting medication again.

The Accident

13The accident occurred on February 19, 2015 when the applicant was driving to work. She was stopped at a red light, waiting to make a right turn, when she was rear-ended. The applicant was driving a relatively small car, a Mazda 3, and is quite a tall woman at 6’2”. She struck her head on the roof of the car upon impact. The applicant drove to work but was feeling unwell and was taken to hospital by a co-worker.

Post-Accident

14An Emergency Department Triage Assessment noted Ms. Powell presented to the emergency room with symptoms of feeling dizzy initially, feeling fuzzy, pain on the top of her head, and pain in the left side of her neck which radiated to her left shoulder. She was examined by the emergency room physician and discharged with a diagnosis of whiplash.

15The applicant presented to Dr. Sohi, her family physician, approximately five days following the accident. A note dated February 24, 2015 indicates that Ms. Powell presented with complaints of ongoing headache, nausea, reduced focus, fatigue, and difficulty with mental processing and word finding. She also reported neck to upper back and shoulder aches. Ms. Powell was examined and diagnosed with a concussion. She was referred for cervical spine x-rays, which were negative for acute injuries or fractures. The applicant was referred to a concussion clinic by her family physician, but the applicant elected to discontinue treatment after a month because it was similar to that she received with her physiotherapist.

16In April 2015, the applicant sought psychological treatment with Dr. MacDonald, who diagnosed the applicant with an adjustment disorder with anxiety, major depressive disorder, and specific phobia (in-vehicle passenger).

17In July 2015, the applicant underwent a s. 44 neuropsychological assessment with Dr. Syed.² Dr. Syed diagnosed the applicant with a major depressive episode and adjustment disorder with anxiety as a result of the accident. Dr. Syed recommended counselling.

18The applicant’s family doctor referred her to a psychiatrist. A consultation report prepared by Dr. Philips in November 2015 diagnoses the applicant with post-traumatic stress disorder and major depressive episode with feature of anxiety. He concurred with Dr. Rosenfeld’s prescription medication and to continue psychological counselling to manage her anxiety and improve her mood and behaviour avoidance.

LAW

Catastrophic Impairment

19Pursuant to section 3(2)(f) of the Schedule, an impairment is catastrophic if, in accordance with the American Medical Associations Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”), results in a class 4 (marked) impairment or a class 5 (extreme) impairment due to mental or behavioural disorder.

20Per chapter 14 of the Guides, there are four domains of functioning that are considered in evaluating mental or behavioural impairment. The applicant bears the onus to prove, on a balance of probabilities, that as a result of the accident she sustained a marked or extreme impairment in one of the domains.

21Impairments are classified according to how seriously they affect a person’s useful daily function in four broad, overlapping, activity categories, or “domains” using word descriptions in a five-category scale that ranges from no impairment to extreme impairment. It is not the category label that has to be assessed, but rather the language in the descriptions. Each of the four domains of functioning, classes of impairment, and rating criteria are set out in the following table from Chapter 14 of the Guides³:

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
Adaptation

ANALYSIS

Catastrophic Impairment

22The parties initially assessed the applicant for catastrophic impairment under both Criteria 7 and 8 but conceded that her injuries did not meet the threshold of 55% whole person impairment for Criteria 7. The applicant proceeded to the hearing on Criteria 8 only.

23The applicant submits that she sustained a marked impairment in two domains: (1) Social Functioning; and (2) Adaptation. The applicant submitted an OCF-19 Application for Determination of Catastrophic Impairment completed by her family physician in April 2019. The severity of her mental and behavioural impairments has been assessed by medical specialists for both sides.

24The applicant was first assessed by her own assessors from Canadian Medical Assessment Centre (“CMAC”). Ms. Naumann completed in-home and situational occupational therapy assessments in October 2018. Dr. Solomon (neuropsychologist) assessed the applicant in November 2018 and provided a psychological/neurocognitive assessment report. She diagnosed the applicant with a Major Depressive Disorder, Generalized Anxiety Disorder, Somatic Symptom Disorder, and Post-Traumatic Stress Disorder (residual). Associated with the foregoing, along with the ongoing post-concussion symptoms, Dr. Solomon diagnosed a Mild Neurocognitive Disorder. Dr. Solomon considered causation, acknowledging that the applicant had suffered from PTSD and depression prior to the accident due to her brother’s suicide, but referred to the psychiatrist’s note in March 2011 that “she did not have any current symptoms of a major depressive disorder or a generalized anxiety state. Her problems are related to her pathological family”. Dr. Solomon attributed the current diagnoses to the subject accident and its sequelae.

25The applicant underwent catastrophic assessments in June 2019 on behalf of the respondent with CanAssess (reports dated September 16, 2019).

26Dr. Zakzanis completed the neurocognitive behavioural assessment in July 2019. He concluded that her scores on the performance and validity measures were in the normal range, indicating the assessment was valid, and there was no evidence of feigning of cognitive impairment. Dr. Zakzanis opined that the applicant was functioning below her premorbid intellectual and cognitive abilities. However, he did not diagnose a neurocognitive disorder, and opined that it was improbable that she had sustained a mild traumatic brain injury. However, Dr. Zakzanis was careful to emphasize that he did not discount her accident-related cognitive impairment; rather, that it was more probably related to her pain, headache/migraine symptomatology, susceptibility to fatigue, and psychological symptomatology, exacerbated by a second accident that occurred in December 2018.

27Two occupational therapy assessments (in-home and situational community) were completed by Ms. Tandon. Dr. Ali prepared a psychiatry assessment, in which she diagnosed the applicant with a Somatic Symptom Disorder and Post-Traumatic Stress Disorder (with partial improvement, not currently meeting full criteria for diagnosis).

28The applicant subsequently underwent further catastrophic assessments with CMAC, including a second situational assessment with Ms. Nauman, and a psychiatry assessment, this time with Dr. Patel. He diagnosed the applicant with Major Depressive Disorder with Anxious Distress, Somatic Symptom Disorder with Predominant Pain, and Specific Phobia (vehicular).

29Both the respondent’s and the applicant’s experts agree that the applicant suffered a psychological impairment as a result of the accident. Having considered the totality of the evidence before me, I am satisfied that the applicant suffered a mental or behavioural disorder as a direct result of the accident.

30The assessors assigned the following impairment ratings:

	Respondent Dr. Ali	Applicant Dr. Solomon	Applicant Dr. Patel
Activities of Daily Living	Moderate Impairment (Class 3)	Moderate to Marked (Class 3 to 4)	Moderate Impairment (Class 3)
Social Functioning	Moderate Impairment (Class 3)	Marked Impairment (Class 4)	Moderate Impairment (Class 3)
Concentration, Persistence, and Pace	Moderate Impairment (Class 3)	Moderate Impairment (Class 3)	Moderate Impairment (Class 3)
Adaptation	Moderate Impairment (Class 3)	Moderate to Marked (Class 3 to 4)	Marked Impairment (Class 4)

Impact of Impairments

31The respondent submits that the applicant exaggerates her level of impairment, noting that while she usually went with her mother or her rehabilitation support worker (RSW) to the grocery store, she could go alone if absolutely necessary, and that she demonstrated the ability to complete the occupational therapist’s (OT’s) situational task in an unfamiliar mall without complaint. The respondent points out that the applicant was able to take at least three trips after the accident: travelling to Edmonton for a wedding with her family, to Florida with her mother, and to visit a friend in Mexico. She has been denied twice of long-term disability (LTD) benefits and has never received any written negative performance reviews. The respondent concedes that she has some impairments, but she has been able to return to work at a minimum of part time and was able to increase her income after the accident.

32The applicant’s ability to work fluctuated over time. The pattern that emerged was that the applicant was able to resume work only on a limited basis with significant support for a limited period of time, and at the expense of all of her other activities of daily living. She would repeatedly push herself to increase her hours and job duties before regressing and having to take time off again.

33The applicant experienced a progressive decline in her ability to maintain her pre-accident independence in all areas of daily living, evidenced by the state of her home, such as clutter and garbage scattered throughout, stacks of boxes, and cat feces noted by the occupational therapist. She demonstrated significant decline in her hygiene and healthy eating habits. She struggled to shower, exercise, engage in meaningful activities, or prepare a healthy meal, due to the low levels of motivation, initiation, and energy associated with her psychological impairments. The applicant reported that she showered once a week, no longer wore makeup, rarely dressed up, did not attempt to eat healthy and did not exercise. Her mother would come over and encourage her to get dressed. She relied on her mother and sister to help with her daily activities and housecleaning. The applicant moved in with her mother several times post-accident, as she was unable to go to work and complete her activities of daily living. The applicant described a lack of interest in dating since the accident due to her lack of motivation or desire to engage in conversation. She stopped coaching synchronized swimming. She no longer participated in any clubs or afterschool activities.

34The applicant’s first attempt to return to work was about four months post-accident, about three weeks before the end of the 2014-2015 school year.⁴ She was off on summer break and attempted to go back to work on a modified schedule in fall 2015. The applicant worked part-time in the fall of 2015, working five half-days per week.

35During one of her sessions with Dr. MacDonald on February 4, 2016, the applicant reported that she had increased work to full-time Mondays, Wednesdays and Fridays but she found this to be very tiring. She told Dr. MacDonald that while she enjoyed her work, it was also overwhelming, with increased stress leading to increased irritability. The applicant reported struggling with report cards and had difficulties working on a computer, requiring extra effort to complete this task. She reported that over the winter holidays, she felt better but was also feeling increased pressure with teaching because people were wondering why she hadn’t returned to full-time work yet. She booked a trip to Florida along with her mother during the March Break of 2016 because she had seen the Christmas holidays’ positive effects on her. The applicant testified that she travelled to Florida with her mother and stayed with her mother’s friends in a retirement village. They did little activity, apart from some walks on the beach and floating in the pool. The applicant testified that her mother planned the trip. It did help boost her mood.

36In order to continue teaching, she required modifications including turning off the lights as she could not tolerate fluorescent lighting, wearing earplugs during assemblies due to noise sensitivity, assistance from her mother and colleagues in setting up the classroom. She had difficulty focusing, multi-tasking and processing new information.

37During her next counselling session in March 2016, the applicant reported increased workplace stress, and having let things go in her home, requiring increased support from her mother. She reported difficulties managing her stress load at work, leading to panic attacks. She felt unsupported at work and hoped to transfer to a new position.

38The applicant started the new school year in 2016. By November 2016, the applicant was reporting difficulty managing full-time work due to decreased energy and motivation, and increased stress, depression and fatigue.⁵ By December 2016, the applicant requested a reduction to her work hours.

39Beginning in January 2017, the applicant reduced her hours to four days a week, taking Wednesdays off for rest and medical treatment. The reduced hours and accommodations allowed her to finish the school year. She experienced improvement during the summer break but recognized that she could no longer continue teaching a split class the next year and sought other opportunities. Dr. MacDonald completed a medical workplace accommodation for a single grade class, and the occupational therapist, Ms. Chera, recommended an ergonomic workstation.

40In September 2017, the applicant began teaching full time in a Grade 5 class. Despite accommodations, by January 2018 the applicant reported to her family doctor that she experienced increased stress, felt overwhelmed, was tearful and had poor focus. Her family doctor increased her medication dosage, and they again discussed a leave of absence.⁶

41The applicant saw Dr. MacDonald in January 2018 and reported that she was struggling with the demands from work. She was so tired at the end of the day that she went home and slept. Her mood had begun to decline in October 2017 and was worse by Christmas. On her family doctor’s advice, in February 2018, the applicant started taking Tuesday and Thursday afternoons off, which gave her more time to participate in rehabilitation. Her mood continued to worsen, and she was unable to complete the school year, stopping on June 13, 2018.

42She again recovered over the summer during the break from work and prepared for a new role, teaching children with special needs in fall 2018. The applicant had trouble adjusting to the new role. She felt stressed, and her decline began again in October. She reached out to the principal for help, fearing burn-out. She reported feeling angry, frustrated and helpless. In December 2018, the family doctor completed a medical leave form, recommending that she remain off work for three months due to a major depressive episode.

43By the end of 2018, the applicant had reportedly accumulated significant debt from paying for treatment, and she had developed impulsive buying habits. She regularly bought new clothes instead of doing her laundry or buying new items she could not find in her home. She filed a consumer proposal.

44The applicant was also involved in another accident on December 19, 2018, which exacerbated her physical and mental health conditions. The applicant was off work for the remainder of the 2018-2019 school year.

45As with her previous times off, the applicant experienced an improvement in her mood and depressive symptoms. It was during this period, in the summer of 2019, that the applicant underwent the respondent’s catastrophic assessments.

46The applicant attempted a gradual return to work in September 2019, starting with half-days, three days a week. She was also provided with a teacher’s aide at school. The applicant also moved in with her mother in September 2019 to receive support with her daily activities. She increased her work to half-days, five days a week, and by January, the pattern repeated itself. She felt exhausted and stressed again. The pandemic hit in March 2020 and the applicant was switched to remote learning. This was actually beneficial for her as it allowed her to work from home, keeping the lights dim, and was actually less for work for her. Essentially, she would assign work to her students, and lay on the couch and rest unless a parent reached out for help. She was able to increase her hours because it was actually less work. While she had been pushing for years to continue working with modifications, multiple medical leaves, assistance from the school, and support from her treatment team, the applicant testified that she was not able to return to work in September 2020.

Catastrophic Assessments

47The final step in assessing the effect of the mental or behavioural disorder on the applicant’s life is to determine the severity of the impairment in each of the four spheres according to the criteria set out in the Guides. Given that the dispute involves only two spheres, I have limited my analysis to social functioning and adaptation.

48Overall, I preferred the evidence of Dr. Patel. His assessment was more thorough, and more accurately reflected the applicant’s abilities in accordance with the Guides.

49In my view, Dr. Ali made a critical error, repeatedly stating in her testimony that because the applicant was not precluded from useful functioning (class 5), she had a class 3 impairment or moderate impairment. In other words, Dr. Ali’s evidence suggests that a person who is not precluded from useful functioning (class 5) must necessarily mean he or she is moderately impaired (class 3) or better; however, such evidence fails to account for a marked impairment (class 4).

50Furthermore, at the time of Dr. Ali’s assessment in June 2019, Dr. Ali reviewed the records provided by the insurer which only went up to May 2018. This was despite the fact that additional medical records had been provided by the applicant on March 7, 2019. However, these additional records were never provided to Dr. Ali, nor was an addendum sought. Dr. Ali was also incorrect in her conclusion that the applicant did not gain any weight since the accident. She had in fact gained 60 pounds post-accident, which was available in the records provided.⁷ Dr. Ali also concluded that the applicant’s cognitive complaints were not credible, despite the conclusion of her colleague, Dr. Zakzanis, as well as Dr. MacDonald and Dr. Solomon who all found that there were no validity concerns, and that the applicant had cognitive impairments.

51Dr. Ali had did not review the surveillance with the applicant. The respondent’s investigators conducted surveillance on a weekend and filmed her picking up dropped papers and appearing to enjoy lunch with a friend. I did not find this surveillance compelling. In context, the applicant was at a mindfulness course trying to learn to look at life as a “glass half full”. People can have good days and bad. Dr. Ali didn’t review the surveillance with the applicant and therefore lacked the context of what she was viewing.

52Further surveillance of the applicant captured her sitting outside her home in a coat and hat. The version provided to Dr. Ali had no date or time stamp. Dr. Ali concludes that there is no indication of emotional distress, and she was presenting normally. In my view, there is nothing particularly revealing overall. If anything, it is somewhat helpful to the applicant’s case. I disagree with Dr. Ali that the applicant was presenting normally or without distress. She appears to painfully sit in a chair, is seen grimacing, sighing deeply and rising from the chair seemingly in pain, slowly returning into the home, and then returning to gather some items she left outside, again moving slowly and grimacing.

Social Functioning

53The Guides indicate that social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others, such as family, friends, neighbors, grocery clerks, landlords, or bus drivers. I find that that the applicant has sustained a class 3, moderate impairment in this domain.

54While Dr. Solomon felt that a marked impairment was appropriate for this range, both Dr. Patel and Dr. Ali assigned a moderate impairment.

55Dr. Solomon noted that the applicant engaged in less than 50% of her pre-accident social activity, and that the majority of the social activity was in the form of surface engagement with her mother, sister, and students at work. It appears from both parties’ occupational therapy assessments that the applicant was able to interact politely with store clerks.

56However, although the applicant’s relationships had been affected, she was able to maintain her relationships with both of the witnesses (colleagues/friends) albeit in a reduced capacity. She continued to visit her sister and mother. The applicant reported that she “was on a hiatus” from dating prior to the accident, which is not noted by Dr. Solomon. The applicant talked on the phone with her friends and continued to see them albeit less frequently. She attended an art class once a week. I accept that the applicant has experienced non-trivial limitations to her capacity for social functioning, namely that she is less involved in the community, such as her coaching, and reduced interactions with friends. However, I agree that the description “impairment levels are compatible with some but not all useful functioning,” i.e. moderate impairment, accurately describes the applicant in this domain.

Adaptation

57Impairment in adaptation is defined by the Guides 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 have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.”⁸ Therefore the focus of the analysis in this domain is on the psychological stress tolerance of the individual. Impairment in adaptation affects the ability to function across all activity domains, not only work-like settings.⁹ The Guides provide examples of adaptation, such as the ability to use public transportation, travel to and from unfamiliar places, to set realistic goals and make plans independently of others.

58I prefer Dr. Patel’s ratings to Dr. Ali’s in this domain. The applicant’s impairments significantly impede useful function.

59Dr. Ali concluded that “at most, there appears to have been an initial temporary exacerbation of the pre-existing anxiety as a result of the subject accident”. This conclusion seems to wholly ignore the reams of medical evidence of the applicant’s psychological and cognitive issues that are well documented. Dr. Ali relied on Ms. Tandon’s occupational therapy assessments, which made no comment on the state of the applicant’s home and noted that despite the applicant’s subjective reports of symptom aggravation, she was observed to complete the assessment without deterioration.

60In contrast to Dr. Ali’s conclusions, I find the evidence is largely consistent that the applicant’s attempts to return to full-time work came at the expense of all her other activities. For example, a progress report from the treating psychologist indicate that the applicant had become more depressed, and that “her mood decline is considered to be secondary to the increased stress associated with her rather rapid increase in work hours from that time, from being disabled, to now working on a full time basis. Stress tolerance appears to be reduced and she has little to no energy left to take care of herself at the end of the day, including maintaining healthy eating and exercise; or for social activities. Most likely feelings of helplessness and hopelessness have increased, and passive suicidal ideation is present”.

61This is consistent with Ms. Naumann’s findings that the applicant’s home was very cluttered, visibly disorganized and soiled; there were boxes stacked throughout the house; and garbage from fast food scattered on most surfaces in the home.¹⁰ Cat feces were also noted to be present on the carpet under the coffee table. During the functional tolerance assessment, the applicant was unable to lay in her bed on account of it being soiled by cat feces at the time. The applicant’s cognitive symptoms were noted to impact her function more significantly as the assessment progressed and she became more fatigued. Ms. Naumann noted that it appeared that the applicant applied all of her energy to her job as a teacher, resulting in no residual ability to engage in self care or leisure tasks, taking care of her home, or maintaining basic hygiene. She was noted to be unable to maintain a functional level of cognitive ability when experiencing increasing stimuli and fatigue. Her cognitive ability declined as the day progressed.

62Dr. Patel noted that through a “maladaptive coping strategy,” the applicant avoids stress and pain escalation to reduce the impact of her symptoms at the sacrifice of her quality of life and engagement in activities that were previously enjoyable. The applicant found it difficult to balance the various aspects of her life. When she engages in some activities that are mentally or physically demanding, she will not be able to engage in another task due to worsening of her symptoms until she recovers. She had gained more than 60 pounds since the accident and had been referred to a treatment for help with emotional eating. Dr. Patel’s findings were largely consistent with the treating psychologist’s records.

63The evidence indicates that the applicant demonstrated a substantial inability to engage in the meaningful roles and responsibilities of her normal life. She required cueing and support to perform many basic self-care and hygiene activities, and even with support, she was not performing to a standard that is consistent with moderately impaired function. Her cognitive changes become more pronounced with fatigue. She presented with functional impairments with resilience, endurance, persistence, reliability, coping, emotional regulation, and overall employability. Although she is highly motivated to engage in work-related tasks, she was not able to pace herself effectively without using up all of her cognitive reserves. The nature of her employment as an elementary school teacher makes it difficult to put the necessary supports in place. Even with significant support and accommodations, the applicant was unable to balance the various aspects of her life as a result of her impairments.

64The available information supports a marked (Class 4) impairment with respect to Adaptation.

Attendant Care

65Section 19 of the Schedule provides that an insurer is required to pay an attendant care benefit (“ACB”) for all reasonable and necessary expenses incurred on behalf of an insured person as a result of an accident for services provided by an aid or attendant. An assessment of attendant care needs (“Form 1”) prepared by an OT sets out the services and amount of care an individual requires as well as the monthly amount payable. An insured person who is not deemed CAT is entitled to an ACB for only the first 104 weeks following the date of the accident.

66Section 42(5) of the Schedule provides that an insurer may, but is not required to, pay an expense incurred before a Form 1 that complies with this section is submitted to the insurer.

67The first Form 1 recommending attendant care for the applicant was completed, by Ms. Chera, dated November 23, 2016, totalling $644.63. The Form 1 was accompanied by functional assessment report by Ms. Chera, dated December 14, 2016. Ms. Chera recommended assistance with meals, due to the applicant’s difficulty preparing regular healthy meals, as well as assistance with bathroom and bedroom hygiene.

68In response to the Form 1, the respondent arranged a s. 44 assessment. The applicant was assessed by Ms. Dhillon, who produced a report dated March 23, 2017 in which she concludes that the applicant did not require attendant care.

69I found the report of Ms. Chera more consistent with the totality of the evidence before me. The Tribunal heard evidence from the applicant, her mother, two of the applicant’s friends, the RSW, and Ms. Chera and the other OT, Ms. Naumann, who confirmed the applicant’s inability to maintain a clean or hygienic home. They explained how it was full of junk food waste, garbage and clutter. The applicant moved in with her mother on multiple occasions because she was unable to manage taking care of herself.

70The report completed by Ms. Chera takes into account the applicant’s cognitive and emotional impairments that were impacting her ability to complete these aspects of her care. Whereas the report by Ms. Dhillon focuses on the applicant’s physical ability to complete the tasks. The applicant is not physically unable to complete the tasks due to her injuries, but rather due to her psychological emotional and cognitive issues, and their impact on her motivation and energy levels which led her to not cleaning the bathroom, changing soiled linens or preparing healthy meals etc.

71The applicant has conceded that the attendant care was not “incurred” in accordance with the Schedule. The applicant submits that the Tribunal should deem the benefits incurred as provided by section 3(8) which states that, if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Tribunal may deem the expense to have been incurred. The applicant submits that her failure to incur the benefit was based solely on her inability to afford the expense.

72While I find that the applicant is entitled to attendant care benefits, I decline to deem the benefits incurred. The first Form 1 was submitted a couple of months prior to the two-year mark. Although I have concluded that the respondent was wrong, and find the applicant is entitled to the benefits, I do not agree that the insurer unreasonably withheld the benefit. It arranged an assessment with an appropriate expert who concluded that attendant care was not required.

73The applicant is entitled to attendant care benefits at the rate of $644.63 per month from the date the first Form 1 was submitted, subject to the benefits being properly incurred in accordance with section 3(7)(e) of the Schedule.

Medical Benefits

$2,593.89 for professional organizing services¹¹; $2,763.50 for aquatherapy sessions with an occupational therapist¹²; and $2,505.43 for aquatherapy sessions with a rehabilitation support worker¹³

74The three plans (dated April 13, April 3, and May 14, 2019, respectively) were denied by the respondent in a letter dated May 15, 2019.¹⁴

75The plans were denied on the basis that the applicant had received adequate treatment, personal organizer services appear to be a combination of housekeeping and attendant care, the plans for the RSW and OT services for aquatherapy overlapped, and she already had a gym membership with pool access and a personal trainer. The respondent also relies on the surveillance footage of the applicant collecting papers off the ground and folding a blanket, as well as the applicant’s ability to drive and to plan lessons for her students as evidence that the treatment plans were not reasonable or necessary.

76I agree that the treatment plans for RSW and OT services appear to be a duplication of services. Given that the applicant already has pool access and a personal trainer, I find that these treatment plans are not reasonable or necessary.

77However, I am persuaded that the treatment plan for the professional organizer services are reasonable and necessary. The services are intended to train and assist the applicant with systems that help keep a person organized. The applicant has significant clutter issues and an inability to stay organized. She missed the deadline to file her paperwork for long term disability benefits, let her health coverage expire, and had to file a consumer proposal due to her inability to budget and stay organized. The Tribunal heard evidence from the RSW that worked with the applicant twice a week for almost a year about the applicant’s issues with clutter, staying organized, and the “mountain of paperwork” on the applicant's floor. Both the applicant’s friend and her mother described it as almost a hoarding situation.

78I am satisfied that the evidence overall supports the need for the professional organizing services.

$5,935.00 for vision therapy

79Dr. Patrick Quaid, a neuro optometrist submitted a report dated February 27, 2019 after assessing the applicant in which he diagnosed post-trauma vision syndrome as a result of the concussion she sustained in the accident.¹⁵ Dr. Quaid submitted a first treatment plan for vision therapy, which was approved by the respondent. A progress report dated August 30, 2019 indicates that the applicant was making progress and had reduced her symptoms about 30% overall. Her oculomotor function and visual processing scores were improved, but she continued to experience visual fatigue. Dr. Quaid submitted a second treatment plan, dated September 5, 2019 proposing further vision therapy sessions.¹⁶ The plan was denied by the respondent in a letter dated October 10, 2019 following a paper review report prepared by Dr. Moddel, a neurologist. Dr. Moddel testified that there is no such thing as vision fatigue, and she had no neurological impairment. The respondent submits that he is more qualified then Dr. Quaid, who is not a medical doctor.

80I accept that the vision therapy treatment plan is reasonable and necessary. The applicant consistently reported issues about her vision after the accident, as evidenced by Dr. MacDonald’s first treatment plan in April 2015 which notes that she was experiencing light sensitivity and blurred vision.¹⁷ In July 2017 she sought assistance from Dr. Ubhi at the Sheridan Optometric Centre, who also documented visual fatigue, eye strain, and reduced ability to change visual focus.¹⁸ The applicant requested lighting accommodations at work. The applicant reported improvement in her symptoms with the treatment received.

REGULATION 664 AWARD

81Section 10 of Regulation 664, R.R.O. 1990 states that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum of up to 50% of the amount to which the person was entitled at the time of the award with interest on all amounts then owing including unpaid interest.

82The applicant submits that the award is warranted for denied benefits, due to unreasonable assessments, for not reviewing updated medical documentation prior to arranging assessments, reducing the voluminous medical documentation to half a page summary without explanation when considering whether the applicant was catastrophically impaired, and spending only fifteen minutes discussing whether the applicant was catastrophically impaired in the CAT Committee meeting.

83Just because I have found that the respondent was wrong in its denials does not automatically entitle the applicant to an award. An insurer is not to be held to a standard of perfection, but rather, it should be held to a standard of reasonableness. The purpose of an award is to punish an insurer for misconduct and to deter it and others from future similar actions.¹⁹

84It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under Reg.664 the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate. I am not satisfied that threshold was met in this case. The applicant is not entitled to an award under Regulation 664. The respondent acted in accordance with the schedule and retained appropriate medical professionals to provide opinions on the reasonableness and necessity of proposed treatment plans.

CONCLUSION AND ORDER

85The applicant has sustained a catastrophic impairment as defined by the Schedule.

86The applicant is entitled to attendant care benefits at the rate of $644.63 per month from the date the first Form 1 was submitted, subject to the benefits being properly incurred in accordance with section 3(7)(e) of the Schedule.

87The plans for professional organizing services and vision therapy are reasonable and necessary. The two plans for aquatherapy sessions are not.

88The applicant is entitled to interest on denied benefits, payable in accordance with the Schedule. The respondent is not liable to pay an award pursuant to Regulation 664.

Footnotes

1. 1O. Reg. 34/10.
2. 2Exhibit 1 page 2446.
3. 3Guides page 301.
4. 4Exhibit 1 page 2971 to 2973.
5. 5Exhibit 1 page 1289.
6. 6Exhibit 1 page 1225.
7. 7Exhibit 3 Tab 4C and D.
8. 8AMA Guides 14/294.
9. 9AMA Guides 14/294.
10. 10Exhibit 1 page 155.
11. 11Exhibit 1 Tab 2(D).
12. 12Exhibit 1 Tab 2(C).
13. 13Exhibit 1 Tab 2(E).
14. 14Exhibit 1 Tab 4 page 793.
15. 15Exhibit 3 Tab 6.
16. 16Exhibit 2 page 147.
17. 17Exhibit 1 page 2419.
18. 18Exhibit 1 page 1653
19. 19Persofsky v Liberty Mutual Insurance Company (FSCO P00-00041, January 31, 2003).