Citation: Imeri v. Liberty Insurance, 2022 ONLAT 19-008097/AABS

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

Between:

Sami Imeri

Applicant

and

Liberty Insurance

Respondent

DECISION

ADJUDICATOR:

Lori Marzinotto, Vice-Chair

APPEARANCES:

For the Applicant:

Baldeep Virk, Counsel

For the Respondent:

Michael Cowan, Accident Benefits Examiner

Jennifer McGlashan, Counsel

Brendon Scott, Counsel

Jasmine Mehta, Law Clerk

Court Reporter:

Chris Delic

Held by Videoconference:

October 5, 6, 7, November 30, December 1, 2, 3, 4, January 21, 22, March 10, 2021

(Written submissions February 4, 22, 26, 2021)

OVERVIEW

1The applicant was injured in an automobile accident on January 25, 2017 (the “Accident”). The applicant sought benefits from the respondent, Liberty Insurance, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”) which Liberty denied. The applicant disagreed with the denials and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve the dispute.

ISSUES IN DISPUTE

2The issues in dispute are as follows:

i. Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400.00 per week for the period of June 19, 2019 to-date and ongoing?

ii. Is the applicant entitled to attendant care benefits in the amount of $8,581.69 per month for the period of January 25, 2017 to-date and ongoing?

iii. Is the applicant entitled to receive a medical benefit in the amount of $2,880.33 for assistive devices and mattress, recommended by Leslie Birkett, OT in a treatment plan submitted on June 26, 2017, denied by the respondent on July 14, 2017?

iv. Is the applicant entitled to a medical benefit in the amount of $4,440.31 for psychological services, recommended by Dr. Sean Shahroknia in a treatment plan submitted on September 30, 2019, denied by the respondent on October 17, 2019?

v. Is the applicant entitled to payments for the cost of examination in the amount of $2,199.26 for a chronic pain assessment, recommended by DeGroote Pain Clinic in a treatment plan submitted on August 27, 2019, denied by the respondent on October 17, 2019?

vi. Is the applicant entitled to payments for the cost of examination in the amount of $2,200.00 for a psychological assessment, recommended by Dr. Sean Shahroknia in a treatment plan submitted on March 20, 2019, denied by the respondent on April 1, 2019?

vii. Is the applicant entitled to payments for the cost of examinations in the amount of $16,272.00 (less $11,752.00 approved) for a CAT assessment, recommended by Dr. Harold Becker in a treatment plan submitted on May 22, 2019, denied by the respondent on June 18, 2019?

viii. Is the applicant entitled to an award for unreasonably held or delayed payments under section 10 of Regulation 664?

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

3A motion was heard at the outset of the hearing to add an issue in dispute. As a result of the motion, I ordered the following issue be added as an issue in dispute at the hearing²:

x. Added issue: Is the applicant entitled to a medical benefit in the amount of $2,995.12 for psychological services, recommended by Dr. Sean Shahroknia in a treatment plan dated April 28, 2020, denied by the respondent on June 3, 2020?

RESULTS

4Based on the evidence before me, I find that the applicant is entitled to:

i. Weekly income replacement benefits in the amount of $400.00 per week for the period of June 19, 2019 to-date and on-going;

iv. A medical benefit in the amount of $4,440.31 for psychological services;

x. A medical benefit in the amount of $2,995.12 for psychological services;

v. A cost of examination for a chronic pain assessment in the amount of $2,199.26;

vi. A cost of examination for a psychological assessment in the amount of $2,200.00;

vii. The cost of examination for the occupation therapist driving/phobia CAT assessments in the amount of $2,000.00 + harmonized sales tax = $260.00= $2,260.00; and

ix. Interest on any overdue payments of benefits.

5I find that the applicant is not entitled to:

ii. Attendant care benefits in the amount of $8,581.69 per month;

iii. A medical benefit in the amount of $2,880.33 for assistive devices/mattress; and

vii. The cost of examination for the clinical file review for the CAT assessments in the amount of $2,000.00 + harmonized sale tax = $260.00= $2,260.00.

BACKGROUND & ANALYSIS

6The applicant was driving a large commercial truck when another vehicle (minivan) came across the centre median from the opposing lane and hit the applicant’s vehicle head on. The applicant’s truck rolled several times and landed on the driver’s side and the applicant had to be extricated by emergency personnel. It was reported that the applicant was travelling 90 km/h and there were no air bags in his truck. The driver of the other vehicle died on the scene.

7Although the accident was not the applicant’s fault, the applicant feels guilty that the young driver of the other vehicle died at the scene. The applicant has been significantly affected by the accident.

8The applicant experiences chronic daily headaches which result in his agitation and irritability, on-going neck pain, low back pain during bending, prolonged sitting, standing, lifting, pushing and pulling. He has low mood, anxiety, fatigue, concentration and memory problems and panic attacks. The applicant has not been able to drive a truck since the accident and only drives a car short distances. The applicant has not worked since the accident.

9Prior to the accident the applicant was described as a very friendly, loving father who was very active (played soccer 2-3 times per week, went to the gym), he was very social and had a lot of friends, was active with his children and helped out a lot around the house and loved to travel.

10Post accident the applicant has changed. He complains about his injuries; headaches, neck pain and back pain and is very emotional and depressed. He no longer wants to do things and wants to be left alone in his room. His mood changes a lot and he gets angry quickly. The applicant receives Botox injections which help to reduce his neck pain but as it wears off his pain becomes unbearable. The Botox is only temporary relief. He takes a long list of medications and sees a psychiatrist.

11After the accident the applicant was prescribed a number of medications for muscle pain, sleep, anxiety and stress, headache and medication which the applicant indicated was to help with nightmares.³

12Ms. Ameri, the applicant’s spouse, gave evidence that the applicant cannot be left alone in the house because of his anxiety and he fears being alone. The applicant has panic attacks. He has poor memory and needs help with his medication and his appointments. He needs his food prepared for him and she leaves it in the fridge when she leaves for work. If she does not prepare and leave food for him he will not eat. The applicant now watches nature shows to help him relax.

13The applicant submitted that he cannot have any responsibility because he gets nervous and more anxious than usual with the added pressure.

14Ms. Ameri further, testified that the family moved because their old house was close to a hospital and the applicant could not sleep with the sounds of ambulances and helicopters.⁴

15Ms. Ameri testified that they used to do everything together and now the applicant often refuses to go anywhere. She is sometimes able to get him to go out for a coffee. The applicant’s doctors recommended that he travel, try to go out everyday, try to walk everyday and do more activities. He tries but is often unable to because of panic attacks and anxiety. He tries to avoid the news because he does not want to see accidents on news and avoids the highway.

16The applicant described having panic attacks sometimes 2-3 times per day and sometimes not having them for 3 days. When they happen, he feels his heart pumping, he has shortness of breath and he does not want to move. They last a few minutes and after one, he feels bad and does not want to do anything.

17Despite his testimony that the applicant suffers from panic attacks, none of the assessors witnessed the applicant having one. There was one assessment where the applicant started to breath heavily and needed to take a break and left the room but returned after a break. The report does not indicate that the applicant reported having a panic attack when he left the room. If the applicant did have a panic attack when he left the room, I would think that he would have reported that to the assessor and, if so, the assessor would have documented that given the applicant’s complaints.

Credibility

18It was clear that the applicant’s credibility was being called into question by the respondent during the hearing. In addition, the applicant’s credibility was also questioned by a number of the respondent’s assessors.

19The respondent questioned the applicant’s credibility given that interpreters where necessary for assessments but were not required for the hearing. During the hearing, the applicant stated several times that he can speak English and he can read it but cannot write in English.⁵

i) Income Replacement Benefit (“IRB”)

20The applicant seeks an IRB from June 19, 2019 to-date and ongoing (post 104 benefits).

21Entitlement to IRB is set out in sections 5 and 6 of the Schedule. Section 5(1)(1)(i) provides that the benefit is payable 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 tasks of that employment. Section 6(2) provides that the benefit is only payable after the first 104 weeks from the date of the accident if the insured person suffers a complete inability to engage in any employment or self-employment for which he/she is reasonably suited by education, training or experience.

22To be eligible to receive IRBs 104 weeks post-accident, an applicant must meet the stricter test of being completely unable to engage in any employment for which they are reasonably suited by education, training, or experience. This is referred to as the “complete inability” test and is more stringent than the pre-104 week IRB test.

23The applicant bears the onus of establishing on a balance of probabilities that he is entitled to the IRB claimed.

24The Respondent submits that the applicant has not satisfied his onus and is not entitled to IRBs. It relies on the insurer examination (“IE”) assessors reports from Dr. Khaled, Dr. Newell, Neil Edwards, Jonathan Kaine, Dr. West, Dr. Desai, Dr. Patterson and Denis Remedios.

25I disagree and find that the applicant has proven his entitled to IRB from June 19, 2019 to date and on-going. I find that the medical evidence did not support the termination of the applicant’s IRB and question the neutrality of some of the IE assessors and therefore gave little weight to their reports as later elaborated on in my decision.

26As summarized by the applicant, since the termination of the IRB, the respondent has been provided with several medical opinions confirming the applicant’s inability to return to employment:

i) Dr. Ford, treating psychiatrist⁶

ii) Dr. Perera, treating physiatrist⁷

iii) Dr. Becker, psychologist⁸

iv) Ali Habash, OT⁹

v) Marjorie Green, OT¹⁰

vi) Dr. Ali, psychiatrist¹¹

vii) Rayna Ghats, OT¹²

27The applicant had been working as a truck driver and has not been able to return to work. His work history includes working for a bus company when he lived in Kosovo and when he came to Canada he started working in a factory, was a truck driver for the Salvation Army, he then had his own dump truck company and had been driving for another company for seven years at the time of the Accident.

28The applicant is unable to work as a driver. He has significant driver and passenger anxiety. While he is sometimes able to drive, it is only for short distances and he sometimes needs to pull over because of anxiety.¹³

29The applicant suffers from ongoing and severe chronic pain and was diagnosed with post-traumatic headaches and migraines often leaving the applicant unable to do anything except rest. He describes the headaches as a strong pressure that may last for days and impact his daily activity level.

30Dr. Shahroknia submitted that the applicant would have great difficulty handling a workplace because of his anxiety, difficulty with concentration and his difficulty handling emotional situations are barriers to work.

31Dr. Gihan Perera, physiatrist, report dated September 2, 2019¹⁴, is important and I place a great amount of weight on it. Dr. Perera was clear in his evidence that any employment would not be gainful employment but therapeutic. There was a suggestion by the respondent that Dr. Perera testified that his report was “reviewed and revised by counsel”. Dr. Perera did not testify that his report was reviewed and revised by counsel. In cross-examination, Dr. Perera submitted that he had spoken with applicant’s counsel to clarify questions, as he usually does when asked to provide an opinion, and that the discussion did not change his opinion on the questions that were asked.

32Dr. Perera opines that from a physiatric perspective, the applicant is unable to return to his pre-accident employment. Also, the applicant’s physical impairments and post-concussive symptoms have resulted in a competitive disadvantage in the workplace. The applicant is better suited for lighter physical demands; however, his mood and cognitive impairments would require a highly supportive and modified work environment. Dr. Perera opined that any form of employment would need to be therapeutic.

33Dr. Perera comes to his conclusions based on the applicant’s reported symptoms, from observations over time, aggravated pain factors and physical examination findings.

34Dr. Perera was of the opinion that the applicant sustained permanent impairments given they have been continuous since the accident despite his participation in the recommended treatment. Dr. Perera submitted that the applicant was not a malingerer. The applicant engages in treatment and shows up for assessment even though the applicant reports anxiety and he continues to have mental, cognitive and emotional difficulties. He recommended that the applicant receive long-term and continuous support in his functional, recreational and community engagement.

35Dr. Dory Becker, psychologist, submitted that the applicant would not be able to return to work as a truck driver and would not be able to maintain a competitive full or part-time job based on his scores on the Global Assessment of Functioning scale (“GAF”) which indicate a serious impairment in occupational functioning.

36Dr. Ford, psychiatrist, has followed the applicant since the accident. Dr. Ford met the applicant when he came to the hospital from the accident. He was in acute distress. Since the accident, Dr. Ford has followed the applicant, provides assessments, prescribes medication and consults with the social workers. Dr. Ford submitted that the applicant’s progress has been minimal and slow and attributes this to the applicant being profoundly impacted by the accident. The applicant avoids speaking about the accident but is otherwise cooperative with treatment and attends appointments and is compliant in taking his medications.

37Dr. Ford indicated that the applicant has mental fatigue, fogginess, sensitivity to light and sound, severe headaches, difficulty focusing. Given the applicant’s anxiety, it was very difficult for him when his social worker changed.

38Dr. Ford opines that the applicant is unable to return to work because of his psychiatric disorders, severe mental health issue as well as brain injury.¹⁵

39The applicant submits that the respondent’s reliance on Dr. West’s, psychologist, report, where he finds that the applicant had suboptimal neurocognitive testing and no reliable data could be obtained, was also relied upon by the other assessors.

40The respondent argued that the applicant does not follow the advice of his treating physicians, misses appointments and that the surveillance shows that the applicant has the ability to work.

41I did not find that the evidence supported the allegation that the applicant did not follow the advice of treatment providers. Although the applicant did miss some appointments with Ms. Vandenberg, his rehabilitation therapist, some were cancelled due to weather and some were cancelled because of insurer examinations (“IEs”) scheduled on the same days.

42Ms. Vandenberg’s job was to get the applicant out into the community to do things which he found challenging. She would go to Tim Hortons with him but he would not go inside because it was too overwhelming. He could go into Williams Coffee because, as Ms. Vandenberg described, this was a different environment, it was larger and not as busy. She encouraged him to go on outings. The applicant found a waterfront park which he found calming and soothing.

43Leslie Birkett encourages the applicant to engage in daily walking activities to help improve his pain and mood. His participation in daily walking in variable but typically walks 2-4 times per week (15-30 minutes in duration). Sometimes he does not feel well enough to walk due to headaches. He attempted to walk indoors at a mall on a Saturday afternoon when it was bad weather but found that the stimulation of the mall made him nauseous.¹⁶

44Dr. Patterson, psychiatrist, opined on May 6, 2019, that as a result of the accident, the applicant had an episode of major Depressive Disorder with Psychotic Features, Post-Traumatic Stress Disorder (PTSD) and panic disorder and has residual symptoms of all three diagnosis with “some” improvement in all three areas. Despite this, Dr. Patterson was of the opinion that from a psychiatric standpoint, the applicant was not at a level of severity which would result in a complete inability to engage in employment.¹⁷

45Dr. Patterson also indicated that although the applicant looked very fatigued, suffers from sleep difficulties and hypersomnia (sleeps until noon), which may pose a barrier to work, in the absence of other disabling symptoms, “hypersomnia alone does not pose a barrier to work and can be treated by cognitive behavioural treatment…”

46Dr. Patterson also found the applicant suffered from cognitive difficulties in both attention and memory and even indicated in the report that the applicant exhibited “severe cognitive difficulties” during the testing and recommended a change in medications and indicated that further assessment and treatment of the applicant’s headaches was warranted.

47Despite acknowledging the existence of major Depressive Disorder with Psychotic Features, Post-traumatic stress disorder and panic disorder, headaches, cognitive issues, difficulty with concentration, persistence and pace, impaired short term memory and sleep maintenance difficulties, Dr. Patterson still finds that the applicant does not suffer a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. I find Dr. Patterson’s conclusion unsupported given the applicant’s impairments and difficulties that Dr. Patterson points out.

48Dr. Newell, physiatrist, opined that the applicant does not suffer a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

Surveillance

49Surveillance of the applicant was conducted on nine days which included, on some days, two investigators in two separate vehicles.

50Although much was made of the multiple days of surveillance of the applicant, I did not find the surveillance to be the smoking gun the respondent submitted it to be. While the surveillance did show the applicant driving, going to a garage, driving his daughter, drinking coffee and attending a coffee shop with his wife, the activities were consistent with the community engagement recommended by the applicant’s treatment providers. It was recommended that he try driving and did so for short durations. It was also recommended that he try and engage in the community and socialise which was depicted in the surveillance.

51In the surveillance, the applicant was not seen driving on the highway, was not seen driving for more than 20 minutes, was not active for large blocks of time, on some days the applicant was not seen at all, on some of the days he was out attending insurer examinations or attending medical appointments.

52In the November 7, 2018 surveillance report, which covers four days of surveillance, there was 30 plus hours of surveillance done, and 27 minutes of captured footage of the applicant. Twenty (20) minutes of the captured footage was the applicant sitting. This was a lot of surveillance which shows very little of the applicant.

53There is no suggestion or allegation that the applicant was working. The private investigator, Gary Lockwood confirmed that the applicant was not at any of the locations for work hours or for periods that would suggest that he was working.

54The respondent relied on the report of Neil Edwards, registered kinesiologist, certified work capacity evaluator, who conducted a Functional Capacity Evaluation (FCE) on February 26, 2019. I did not give much weight to this report.

55In-chief, Mr. Edwards indicated that the purpose of the FCE was to see the applicant’s capacity to perform physical demands. The Reasons for Referral, however, asked Mr. Edwards to answer: i) Did Mr. Imeri provide high levels of physical effort throughout testing? and, ii) Are Mr. Imeri’s reports of pain and disability reliable?

56Although Mr. Edwards submitted that these questions were not posed by the respondent but rather are standard, I find these questions set a biased tone to the FCE. Mr. Edwards did not have a copy of the instruction letter from the respondent when he was testifying. Mr. Edwards opines that the applicant does not suffer a complete inability to engage in any employment or self-employment for which he is reasonable suited by education, training or experience. Mr. Edwards found that the applicant demonstrated low levels of physical effort, was guarded and self-limiting and he did not want to do many of the physical tests or withdrew during the tests and also refused some assessments due to pain and headaches.

57Despite this, Mr. Edwards felt he had enough information to complete his report and opined that the applicant has the ability to perform light sedentary work. Mr. Edwards submitted that the applicant was able to fill out the forms but did not do the tests. Mr. Edwards did not find any organic signs of limitation.

58Mr. Edwards submitted that the applicant’s headaches are subjective and did not interfere with the assessment and based this opinion on the fact that the applicant did not show overt signs of pain, for example, he did not squint, he did not have difficulty with bright lights and he stood up from a seated position. The applicant assessed his pain level as being 7 out of 10. For Mr. Edwards, a pain level of 7 out of 10 would require the applicant to lay down or cause tearing up which the applicant did not demonstrate.

59Mr. Edward’s report clearly indicates that the applicant did not complete some of the assessments, for example the Bennett Hand Tool Dexterity Test, because of headaches and lack of concentration and cognitive issues.¹⁸

60Mr. Edwards did not comment or take into account the applicant’s psychological impairments because it is outside his scope. Mr. Edwards did not take into account the applicant’s PTSD or panic attacks because he only looked at physical function and ability.

61This is a direct opposite of the eport of Rayna Ghatas, occupational therapist, who did take the applicant’s psychological issues into consideration in the assessment.¹⁹ Ms. Ghatas found that the applicant lacks sufficient mental and emotional reserves to perform task initiation, planning and execution and would not be able to function under increasing task demands.

62I place greater weight on the OT CAT Report of Rayna Ghatas. While her assessment was conducted in a different context (CAT rather than FCE or the IRB test specifically), I find that in determining an applicant’s ability to function, in an IRB context (as was communicated to the applicant by Mr. Edwards), diagnosis of PTSD or other cognitive limitations for example, which were documented, should factor into the assessment.

63Although Dr. Emilie Newell, physiatrist, was not asked to examine the applicant in terms of the post-104 IRB test, she conducted a Physiatry Independent Medical Evaluation on March 28, 2018,²⁰ and opined that the applicant was substantially disabled from the essential tasks of employment. In this report, it is clear that Dr. Newell takes the applicant’s “severe mental health conditions and the chronic pain…” into consideration.

64In an addendum dated May 2, 2019, Dr. Newell is asked to address IRB and finds that the applicant does not suffer a complete inability to engage in any employment or self employment. This was qualified by Dr. Newell indicating that she only referred to his physical condition and did not address his headaches or psychological difficulties.²¹

65A second physiatry addendum of Dr. Newell dated June 8, 2020, which also addressed post-104 IRB, indicated that her opinion had not changed and from a physiatrist’s perspective, the applicant does not suffer a complete inability to engage in any employment or self-employment. However, Dr. Newell added that commenting on the applicant’s mental health and headaches is outside the scope of her practice.²²

66The respondent also relies on the report of Denis Remedios, an expert in vocational assessments, who conducted a vocational independent evaluation addressing IRB on April 17, 2019.²³ Mr. Remedios opined that the applicant was suited for a number of occupation categories and listed suitable jobs such as inventory clerk or production coordinator.

67I gave little weight to Mr. Remedios’ evidence for the following reasons. Mr. Remedios quite candidly and with honesty testified that medically speaking, it is beyond his scope to determine whether the applicant could return to work. Within his scope though, is to identify what would be suitable for the applicant if he were able to return to work. He defers whether the applicant is actually able to return to work to the medical professionals. This is also indicated in Mr. Remedios’ report. The potential job matches as a result of the vocational evaluation does not suggest that the applicant has the ability to perform or retain the listed positions.

68Whether the applicant is suffering a complete inability to engage in any employment or self-employment for which he is reasonably suited is the issue in dispute, not what employment would be suitable if he was able to return.

69Dr. Curt West, psychologist, prepared a neuropyschology addendum dated June 10, 2020²⁴ to opine on IRB. In Dr. West’s previous report, which he quotes in his addendum, he indicated that there was evidence of ongoing mental health sympomatology but would defer to the psychiatrist in terms of diagnosis and impairment. From a neurocognitive perspective, Dr. West found that the applicant does not suffer a complete inability to engage in any employment. Dr. West points to the fact that the applicant is able to operate a motor vehicle as indication that the applicant’s neurocognitive abilities are “grossly intact”.

70It was clear that Dr. West did not find the applicant credible. Dr. West submitted that the applicant failed validity testing and therefore Dr. West did not obtain reliable data, and he coud not trust the applicant’s subjective reporting because of the failed validity testing. Dr. West would not describe the applicant as a “maligerer” but did described him as a “non-credible historian”.

71I did not place much weight on Dr. West’s evidence. I find that Dr. West discounted the evidence of the applicant’s headaches and indicated that you have to take everything the applicant is saying “with a grain of salt” because he failed the validity testing. It was Dr. West’s opinion that there is no other explanation for sub-optimal results on the assessments and further submitted that the science indicates that when people fail these tests they are not trying, or are not engaged and that was the case with the applicant. There is ample evidence that points to the applicant withdrawing or stops engaging when experiencing anxiety. It is unclear if that was taken into consideration by Dr. West who places a high degree of weight on the fact that the applicant failed the validity testing. It appears that Dr. West was unwilling to take other factors into account or consider them in a neutral fashion as a result. Dr. West further indicated that there appears to be a level of “iatrogenesis” present, which he described as, the person having a perception of illness that is disproportionate to the actual symptoms for example, if someone tells someone long enough that they are ill, they believe that.

72Other doctors did opine that there are other reasons for failed validity tests. Dr. Sherese Ali, psychaitrist, in her report dated April 17, 2020²⁵ indicated “while there is no empirical studies to guide definitive interpretation of failed validity tests i.e. whether they are related to malingering versus to underlying psychiatric disorders which influence effort, attention and response biases…” Dr. Ali attributes the applicant’s failed validity test to his psychiatric diagnosis. Dr. West’s response to this during the hearing was that that Dr. Ali is wrong.

73I find Dr. West placed a greater amount of emphasis on the validity testing without considering the possibility that there may be other reasons for the results.

74Dr. Jamsheed Desai, neurologist, conducted a neurology independent medical evaluation report dated February 20, 2019.²⁶ to provide an opinion on IRB. Dr. Desai acknowledged the applicant’s ongoing headaches and indicated this was likely a consequence of mild traumatic brain injury and potential whiplash. Dr. Desai found that from a neurologic perspective, the applicant did not have a complete inability to engage in any employment or self-employment.

75For the above noted reasons I find the applicant is entitled to IRB.

ii) Attendant Care Benefits (“ACB”)

76I find that the applicant has failed to prove on a balance of probablities entitlement to ACB.

77Section 19 (1)(a) of the Schedule provides that ACB shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of the accident for services provided by an aide, attendant, long-term care facility or chronic care hospital.

78Section 3 (7) of the Schedule provides guidance on when an expense is incurred:

i. the insured person has received the goods or services to which the expense relates;

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

iii. the person who provided the goods or services a) did so in the course of the employment, occupation, or profession in which he or she would ordinarily have been engaged, but for the accident, or b) sustained an economic loss as a result of providing the goods or services to the insured person.

79Section 3 (8) of the Schedule provides 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, for the purpose of determining an insured’s entitlement to the benefit, deem the expense to have been incurred.

80The issue of deeming the ACB to have been incurred was not argued at the hearing. No evidence was presented on ACB being incurred. The respondent submitted that there has been no claim for ACB. The applicant submitted that he did not want strangers in his home to provide the care and that his wife or family assists. There was also no argument or evidence put forth to support an economic loss claim for the applicant’s spouse or family members.

81Although the respondent did assess entitlement to ACB and found that an amount for ACB was supported in Assessment of Attendant Care Needs forms (Form 1), I have no evidence or even argument that the expense was incurred in accordance with s.3 of the Schedule.

82The dispute is essentially over the quantum of the ACB and whether the applicant requires twenty-four (24) hour supervisory care. The respondent first recommended $1,535.15 per month and then reduced the amount to $1,374.76 for ACB.

83The respondent submits that the applicant has not submitted anything for ACB and he does not require “top up” twenty-four (24) hour care at $8,000.00 per month. The respondent, in good faith, has been paying monthly ACB as per its Form 1.

84The applicant’s wife testified that she missed some work the first two months after the accident. This was not quantified. At the time of the hearing, she testified that she was working 40 hours per week.

85Ms. Ameri confirmed that they had not submitted claims for attendant care benefits and no one has attended their home to provide care. Ms. Ameri testified that she does everything and prepares everything for the applicant while working full time.

86Section 19(3)4 of the Schedule provides that if a person who provided attendant care services for the insured did not do so in the course of employment, occupation, or profession of the provider but for the accident, the amount of ACB payable shall not exceed the amount of the economic loss sustained by the provider while and as a result of providing the attendant care.

87Section 19(3)5 of the Schedule provides that if the actual expenses for ACB are lower than the amount of the monthly ACB benefit as determined under ss. (2), the insurer shall only be liable for payment of the incurred expenses.

88The onus is on the applicant to prove entitlement to ACB and that the amount of the ACB claimed is reasonable and necessary pursuant to s. 19 on a balance of probabilities.

89The applicant was asked what he needs in terms of his attendant care. He replied that he needs reminders for appointments, to fix his clothes, his wife sets a schedule on a white board for him and his wife still has to call him even with the white board. Safety concerns were not an issue identified by the applicant.

90Ms. Birkett,²⁷ expert in occupational therapy, indicated that the applicant requires 24 hour attendant care support that may include remote monitoring. ²⁸

91Ms. Birkett’s reports confirms that the applicant has difficulty concentrating and remembering information and that his inattention leads to task errors and safety concerns. It was Ms. Birkett’s opinion that the applicant is incapable of independently managing minor domestic crises.

92Ms. Birkett notes that objective AMPS²⁹ testing shows the applicant’s safety was compromised and the results supported that it was essential for the applicant to have access to daily supports to ensure his personal safety. The applicant requires monitoring because of his depression and anxiety. Ms. Birkett noted that at the time of the evaluation, it was unsafe for the applicant to be left alone in the event of an emergency.

93Ms. Birkett opined that the the applicant’s process/cognitive skills were well below normal leading to requiring help with his activities of daily living (“ADL”). She further noted the applicant’s motor skills were at a questionable level, he had difficulty with concentration, inattentiveness which led to safety concerns, fatigue, headaches, depressive mood and his unpredictable panic attacks were cause for concern requiring supervision.

94Ms. Birkett opined that the applicant’s emotional state impacts his safety because he withdraws from tasks – he gets to a point in a task and then stops immediately, he feels angry and withdraws. He tried to make a sandwich one day and cut his hand, on another occasion he left the burner on, on another occasion he left the tap running. Ms. Birkett agreed that the applicant’s safety can be monitored remotely and not necessarily requires someone by his side.

95Ms. Birkett, on cross-examination, was asked the frequency of the panic attacks and submitted that she understood they were quite frequent, sometimes one a day, sometimes more than one per day. Ms. Birkett submitted that 24 hour x 7 days per week of supervisory care is needed because of the applicant’s unpredictable panic attacks that occur at different times and places. Assistance for this would be provided by calling a “safe person” to help him.

96Dr. Newell³⁰ agrees with Ms. Birkett’s recommendation for ACB in November 2017 as being reasonable and necessary primarily because of the applicant’s mental health diagnosis but that it should be addressed by a psychiatrist. From a physiatry perspective, Dr. Newell did not find physical musculoskeletal impairments that would require attendant care.

97Jonathan Kaine,occupational therapist, assessed the applicant’s ACB at $1,533.15, finding that 24 hour supervision was not reasonable and necessary and reducing some levels of assistance and increasing others in comparison to Ms. Birkett’s recommendations. Mr. Kaine subsequently reduced the amount of ACB to $1,374.76 with the difference being a reduction of exercise to zero minutes, a small increase for hygiene (14 minute increase) and a small reduction for medication assistance (7 minute reduction).

98Jonathan Kain conducted an in-home assessment on March 8, 2019 and opined that based on the applicant’s low mood and anxiety the applicant required attendant care or cueing for grooming, basic food preparation, hygiene, basic supervisory care (emotional support), medication management, bathing and oral hygiene.

99I agree with the OT Joanthan Kaine that there is insufificent compelling evidence to support a need for 24 hour supervision.³¹ Mr. Kaine recommended 840 minutes per week for basic supervisory care compared to 7843 of supervisory care recommended by Leslie Birkett.

100Mr.Kaine agreed that panic attacks would be important to consider for supervisory care, and that when they come on is unpredictable, however, given that the applicant was accessing the community on his own at times and without queuing, was a factor in determining that he did not need 24 hour supervisory care. Mr.Kaine submitted that he did not have any evidence that the applicant would not be able to respond to an emergency.

101Although both parties agreed that some attendant care is needed, I have no evidence that it has been incurred or evidence of economic loss and find that a need for 24 hour supervisory care has not been established.

102For the above noted reasons I do not find the applicant entitled to ACB.

iii) Assistive Devices

iv) Psychological Services $4,440.31

x) Added Issue: Psychological Services $2,995.12

iii)Assistive Devices

103Sections 14-16 of the Schedule provides that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that each assessment and treatment plan is reasonable and necessary. The applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.

104The applicant is seeking payment for the balance of a partially approved treatment plan. The treatment plan submitted was in the amount of $4,762.21. The evidence at the hearing was with respect to payment of a mattress in the amount of $2,199.00. The issue in dispute for the hearing indicates the amount of the treatment plan is in the amount of $2,880.33. I did not hear evidence with respect to the difference in the amount of the mattress and the amount remaining at issue.

105While there are notations in the evidence that the applicant suffers from disturbed sleep with resultant fatigue, the applicant has failed to prove on a balance of probabilities the reasonabless and necessity of a mattress.³²

106Ms. Birkett did not comment on the state of the applicant’s mattress. Dr. Newell opined that the mattress was not reasonable and necessary.³³ I agree. Dr. Newell’s report indicated that this issue came up after the applicant’s wife went to a mattress store and spoke with a salesperson who recommended the type of mattress.

107For the above reasons I find that the applicant has not met the burden of proof on this issue as there was little to no evidence on this issue and is therefore not entitled to the benefit in dispute.

iv) Psychological Services $4,440.31 and x) Added Issue: Psychological Services $2,995.12

108The applicant claims entitlement for two treatement plans for psychological services recommended by Dr.Shahroknia, psychologst.

109The respondent’s reasons for the denial of the treatment plan in the amount of $4,440.31 were duplication of services, a s.44 report deemed it not reasonable and necessary and that no further psychiatric treatment is necessary “as the applicant has been deemed able to work”.³⁴

110The applicant submitted that despite the applicant’s immediate onset of psychological issues, it is odd that the respondent has not paid for psychological treatement.

111Dr. Patterson, opined that “it is unlikely” that further psychological treatment would improve the applicant’s function or psychological well-being and recommended that the applicant minimize his time in bed which would improve symptoms of depression, anxiety and trauma.³⁵

112This was in spite of the fact that Dr. Patterson found that the applicant suffers from cognitive difficulties of both attention and memory and recommended psychopharmacologic interventions or changes to his medications.³⁶

113Dr. Patterson submitted that the applicant tested so poorly that she felt the applicant was faking, for example, that his short term memory was impaired and he could not remember 4 out of 4 words. Later in her evidence she acknowledged that Topomax, a migraine medication that the applicant is taking, is a “neuro toxin” which causes cognitive impairments.

114Dr. Patterson opined that the applicant is a malinger and he does not need any more assessments and felt the respondent was more than generous with assessments. The fact that Dr. Patterson characterises the applicant as a malingerer does not appear in the report but was Dr. Patterson’s testimony at the hearing.

115Dr. Patterson’s opinion of the applicant is that he is “not really interested in getting better, he’s interested in getting money”. Dr. Patterson also submitted that the non-institutional chronic pain program is an “industry that’s borne out of these motor vehicle accidents….other people get better without them, and yet these patients who have car accidents don’t get better in spite of them. So I think…the whole industry is problematic”.

116I found these statements of Dr.Patterson concerning and question whether her evidence was fair, objective and non-partisan as required in providing evidence to the Tribunal despite having signed an Acknowledgment of Expert Duty form.

117Dr. Shahroknia submitted that the psychological treatment was provided and the applicant received some improvement but it has been slow and guarded but that maintaining gains to prevent relapses is a viable goal of the treatment plan.³⁷

118Dr. Shahroknia submitted that pain was constant in the applicant’s life which reflects in his depression and stress symptoms. The treatment is to improve the applicant’s psychological symptoms which helps improve pain management.³⁸

119Dr. Dory Becker, psychologist, conducted a mental/behavioural assessment of the applicant as part of a catastrophic impairment assessment.³⁹ Dr. Becker opined that the applicant meets the DSM-5 criteria for “post-traumatic stress disorder with persistent major depressive episode, severe, and somatic symptom disorder with Predominant Pain, Persistent, Moderate”.⁴⁰

120The respondent objected to the DSM-5 diagnosis because Dr. Becker’s report was with respect to the catastrophic impairment assessment. I allowed the evidence of the DSM-5 diagnosis. Dr. Becker is a psychlogist and part of the issues in dispute are whether the applicant is entitled to psychological services and a psychological assessent. The DSM-5 diagnosis was relevant evidence which may assist the Tribunal in coming to its decision.

121For the above reasons I find that these treatment plans are reasonable and necessary and that the evidence of the respondent’s witness, Dr. Patterson, psychiatrist, lacks the neutrality that is required in order to give fair and objective assistance to the Tribunal.

COST OF EXAMINATIONS

v) Chronic Pain Assessment

vi) Psychological Assessment

vii) Balance of CAT Assessments

v) Chronic Pain Assessment $2,199.26

122Section 25(1) of the Schedule provides that the insurer shall pay reasonable fees charged by a health practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose. The applicant bears the onus to prove on a balance of probabilities that the assessment is reasonable and necessary. Evidence should demonstrate that the applicant may have the condition the assessment will investigate.

123The applicant disputes the denial of the OCF-18 submitted August 27, 2019 for the chronic pain assessment recommended by DeGroote Pain Clinic.⁴¹

124The reason for denial by the respondent dated October 17, 2019, indicated that it appeared to be a duplication of services of an OCF-18 dated March 20, 2019, signed by Dr.Sharhrokhniain the amount of $2,000.00 proposing a psychological assessment. I note that the March 20, 2019 treatment plan was also denied and is an issue in dispute in this hearing.

125I question how this issue could be a duplicaton of services if both OCF-18s, including the earlier March 2019 OCF-18 were denied. The respondent further indicated that a neuropsychological review was completed in March 2019 which found no cognitive impairment and opined that the applicant was able to work from a psychiatric perspective based on Dr. Patterson’s findings. The respondent also indicated that there had been no compelling evidence provided to support the submitted requests for assessments.

126The psychological assessment is only one part of a chronic pain assessment and an interdisciplinary assessment is required in order to make a recommendation for the chronic pain program. Mental heath and physiological issues are treated together.

127Ms. Persaidie, Social Worker, submitted that chronic pain can affect mental health and just because a psychiatrist thinks the applicant did not need the chronic pain program does not make it true. Mental health and chronic pain go hand in hand regardless of a psychological diagnosis.

128Dr. Patterson opined that the treatment plan was not reasonable and necessary from a psychiatric standpoint nor required a psychological assessment. Dr. Patterson opined that “it is unlikely” that a psychological assessment would improve the applicant’s function or psychological well-being and recommended that the applicant minimize his time in bed which would improve symptoms of depression, anxiety and trauma.⁴²

129As noted earlier in the decision, Dr. Patterson gave the same recommendation when she opined that there was no need for further psychological treatment.⁴³

130Dr. Patterson relies on Dr. West’s findings that the applicant does not have a neurocognitve disorder in finding that the psychological assessment was not reasonable and necessary.

131Dr. Gihan Perera, a physiatrist with a specialty in concussions, conducted a physiatry examination and prepared a report dated September 2, 2019. Dr. Perera diagnosed the applicant with: chronic myofascial neck pain, chronic mechanical low back pain, chronic post-traumatic headaches, post-concussion syndrome, post-traumatic stress with associated anxiety and depressive symptomatology.⁴⁴

132Having reviewed the submissions and the evidence, I find that a chronic pain assessment is necessary. The evidence confirms that the applicant has chronic pain and also confirms that the applicant was diagnosed with psychological injuries. The evidence provided by the applicant is credible, the complaints contained in the evidence are consistent, and when assessed altogether, the evidence supports the need for a chronic pain assessment. The combination of psychological and physical injuries can lead to chronic pain syndrome and warrant further investigation.

vi) Psychological Assessment $2,200.00

133The applicant disputes the denial of this treatment plan. I find that this treatment plan is reasonable and necessary. There is ample evidence that the applicant suffers psychologically as a result of the accident.

134Dr. Dori Becker, pyschologist, diagnosed the applicant with: post-traumatic stress disorder, persistent Depressive Disprder with Persistent Major Depressive Episode (Severe), and Somatic Symptom Disorder with Predominant Pain which is persistent and moderate.⁴⁵

135Dr. Patterson opined that the applicant did not require a psychological assessment in a treatment plan submitted March 20, 2019, as he had a neuropsychological review in March 2019 which found that the applicant did not have a cognitive impairment and was deemed able to work from a psychiatric perspective.⁴⁶

136Dr. Sean Shahrokhnia, psychologist, disagreed with Dr. Patterson’s assessment and diagnosed the applicant with: post-traumatic stress disorder, adjustment disorder with mixed anxiety and depressed mood, chronic pain, driver/passenger phobia and functional limitations.⁴⁷

137Dr. Shahrokhnia opined that psychotherapeutic intervention was reasonable and necessary.

138I prefer Dr. Shahroknia’s evidence over that of Dr. Patterson’s. As stated earlier in the decision, I found Dr. Patterson’s evidence concerning.

139I find the applicant entitled to the treatment plan.

viii) Balance of the CAT Assessments

OT Driving/Phobia Assessment $2,000.00 + harmonized sale tax

140The applicant must establish, on a balance of probabilities, that the assessments themselves are reasonable and necessary for the purpose of applying for a determination of catastrophic impairment under s. 45 and further, that the fees charged in connection with the recommended assessments are reasonable.

141Section 25 (1) 5 of the Schedule provides that an insurer shall pay reasonable fees incurred by or on behalf of an insured charged for preparing an application under s. 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment necessary for that purpose. Section 45 (1) provides that an insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.

142The wording in s. 25 establishes that the test of reasonable and necessary applies to both the fees and “any assessment or examination necessary for that purpose”. In addition, s. 38(8) requires an insurer to inform an insured person of the medical and other reasons why it considered assessments and examinations not to be reasonable and necessary if it denies a treatment plan. That the word “necessary” is included in the wording in both s. 25 and 38(8) places emphasis that each assessment or examination must be considered for the necessity of the determination of catastrophic impairment. There is no separation of the reasonableness and necessity requirement for catastrophic assessment funding and the reasonableness and necessity of each assessment and examination.

143Dr. Harold Becker of Omega Medical submitted an OCF-18 date May 22, 2019 proposing catastrophic assessments totalling $16,272.00, as follows⁴⁸

1. Neurophysiatry Assessment $2,000

2. Psychology Assessment $2,000

3. OT ADL/Community Assessment $2,000

4. OT Situational Assessment $2,000

5. OT Driving/Phobia Assessment $2,000

6. Clinic File Review Report $2,000

7. CAT Analysis & Ratings Report $2,000

8. OCF-19 Certificate $200

9. OCF-18 Form $200

144This treatment plan was partially approved in the amount of $11,752.00. The respondent did not find two (2) assessments; the occupational therapist driving assessment and the clinical file review as reasonable and necessary. The applicant disputes these denials.

145Dr. Harold Becker submitted that the driving assessment was included because the applicant was suffering psychological issues and had been seen by an OT who had documented her findings. Dr. Becker submitted that the OT he works with has.⁴⁹

146The driving assessment assisted in forming the final conclusions in the CAT rating: the applicant had vehicle anxiety which was part of the overall psychological review and opinion. Part of the applicant meeting the DSM-5 criteria of the diagnosis incorporated his vehicular anxiety.⁵⁰

147The CAT assessment Activities of Daily living indicated that the applicant’s anxiety contributes to the avoidance of driving, passenger and pedestrian travel at times. Driving exacerbates his anxiety.⁵¹

148Dr. Mohamed Khaled, General Practitioner, felt that the driving assessment was not necessary and you can look to the history on the file. He opined that once a diagnosis is made, a driving assessment is not required and opined that this is not part of a CAT assessment. He opined that the psychologist considers the diagnosis and a diagnosis can be made without a specific assessment.

149I do not agree. In this case, the applicant was a truck driver and driving was a significant activity of daily living. Other than indicating that he has conducted hundreds of CAT assessment and has not seen a OT conduct a driving phobia test as part of the assessment, Dr. Khaled’s report and evidence does not support a finding that the assessment is not reasonable and necessary. In chief, Dr. Khaled indicated that the driving phobia assessment is not relevant to mental behavioural issues. In his report Dr. Khaled simply states that “there is no indication for an occupational therapist to make a driving assessment. This is not part of any catastrophic impairment analysis”.⁵²

150I find that the OT driving/phobia CAT assessment is reasonable and necessary given the applicant’s well-documented DSM-5 diagnosis and its impact on his activities and level of functioning especially when it comes to driving. Part of the applicant’s noted diagnosis was as a result of his vehicular anxiety which also contributed to his inability to continue working. This was a significant activity of the applicant’s daily living prior to the accident.

Clinic File Review Report $2,000.00 + harmonized sales tax

151The second disputed portion of the denied treatment plan was for the clinical file review in the amount of $2,000.00.

152As with the driving/phobia CAT Assessment, the onus is on the applicant to show that this assessment is reasonable and necessary.

153A plain language reading of section 25(5) of the Schedule establishes that medical practitioners conduct an assessment and file review within the $2,000.00 limit. Section 25(5) specifically states that “an insurer shall not pay more than $2,000.00 in respect of fees and expenses for conducting any one assessment”. Since a file review is a necessary and inherent component of an assessment, the fee is captured within the $2,000.00 limit in s.25(5).

154A file review is a necessary part of an assessment and should be treated as part of the assessment’s expense. I find seeking a clinical file review as a separate fee in addition to an assessment fee is a duplication and therefore not reasonable and necessary.

155Dr. Harold Becker agreed during cross-examination that each assessor carries out their own file review within their area of expertise.

156Dr. Khaled, when asked whether one comprehensive file review would help narrow the assessments for the other assessors, he submitted that he did not know how to answer that. Dr. Khaled explained that under their College, doctors are responsible for a review of the file. Doctors are responsible for their findings and if he only relied on a pre-screen rather than his own review and something was missed, he would be responsible.

157A clinical file review is a duplication of the work that each assessor conducts in their own assessments and is part of their fee. A separate clinical file review is not reasonable and necessary.

viii) Award

158The parties agreed to provide written submissions on the award issue. At the hearing I ordered the following submission lengths; 15 pages for applicant’s submissions, 15 pages for respondent’s submissions and 3 pages for Reply.

159The respondent pointed out that the applicant exceeded the ordered page limits and therefore asked that I not consider the applicant’s award submissions and reply submissions. I do agree that the applicant took liberties with the page limits; however, I do not agree that there were 40 pages of submissions. The approximately 3.5 single spaced pages of footnotes were excessive and do contain some argument but mainly contained summaries of the cases the applicant provided. I have not considered any additional argument by the applicant in these pages. Pages 21-24 were quotes from evidence submitted during the hearing. Given that there were in excess of 120 Exhibits in this hearing, the quotes did assist the Tribunal. However, this was not new evidence and the exhibits with pinpoints could have simply been footnoted. Pages 28-40 were documents not included in the briefs but the parties agreed could be considered.

160It 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, the insurer’s conduct must be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”.⁵³ There are ample cases decided by the Tribunal which outline what the Tribunal considers when deciding whether to grant an award.

161The idea of written submissions on the award was not to reargue the hearing but point to the evidence that would substantiate or refute the ordering of an award. The question to be addressed was: did the respondent unreasonably withhold or delay payment of a benefit?

162I find that the applicant is not entitled to an award.

163Pursuant to section 10 of Regulation 664, the applicant may be entitled to an award if the respondent unreasonably withheld or delayed payment of a benefit.

164Section 10 of Regulation 664 states that if the Tribunal finds that an insurer 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.

165The fact that the Tribunal has found the applicant entitled to certain benefits is not evidence of unreasonably withholding or delaying of the payment of benefits.⁵⁴

166The applicant and respondent’s medical experts had very different opinions. The respondent conducted a number of assessments which demonstrates a continuing adjustment of the applicant’s file. It was reasonable for the respondent to rely on its medical professionals in maintaining the denials.

167While I do question the continued denial of the IRB given the medical evidence that the applicant has driver and passenger anxiety, it was reasonable given the surveillance of the applicant driving to rely on the reports that indicated that he could work.

168A mitigating factor in the respondent’s favour is also the payment of ACBs without evidence that it was incurred or even in the absence of claims having been submitted.

169I do not find the respondent’s conduct to be at a level that support’s an award and find the applicant is not entitled to an award.

ix) Is the applicant entiteld to interest on any overdue payment of benefits?

170The applicant is entitled to interest on the benefits I have found owing. Interest is payable in accordance with s.51 of the Schedule.

CONCLUSION AND ORDER

171For the reasons set out above I find that the applicant is entitled to :

i. Weekly income replacement benefits in the amount of $400.00 per week for the period of June 19, 2019 to-date and on-going;

iv. A medical benefit in the amount of $4,440.31 for psychological services;

x. A medical benefit in the amount of $2,995.12 for psychological services;

v. A cost of examination for a chronic pain assessment in the amount of $2,199.26;

vi. A cost of examination for a psychological assessment in the amount of $2,200.00;

vii. A cost of examination for the occupation therapist driving/phobia CAT assessments in the amount of $2,000.00 + GST = $260.00= $2,260.00;

ix. Interest on the above amounts payable in accordance with s.51 of the Schedule

Date of Issue: March 17, 2022

Lori Marzinotto, Vice Chair

APPENDIX

Preliminary Issue Motion #1: Added Issue

172A motion was heard at the outset of the hearing to add an issue in dispute. I rendered my decision orally at the hearing with written reasons to follow. As a result of the motion, I ordered the following issue be added as an issue in dispute at the hearing:

Added issue: Is the applicant entitled to a medical benefit in the amount of $2,995.12 for psychological services, recommended by Dr. Sean Shahroknia in a treatment plan dated April 28, 2020, denied by the respondent on June 3, 2020?⁵⁵

173The added issue is essentially the same as a treatment plan already in dispute in this hearing. It is for the same type of treatment, recommended by the same doctor but in a different amount.

174The respondent denied the treatment plan citing a duplication of services, that is, it was similar to the treatment plan dated March 20, 2019 for a psychological assessment recommended by Dr. Shahroknia in the amount of $2,200.00 (also an issue in dispute in this hearing), a s.44 assessment deemed it not reasonable and necessary and that no further psychiatric treatment was necessary as the applicant was deemed able to work.⁵⁶

175Further indicated in the denial is that there was no compelling evidence to support the request and that a second opinion was required as it had been two years since the accident.

176Rule 3.1 (a) of the Common Rules⁵⁷ provides for the liberal interpretation of the Common Rules in order to ensure an efficient, proportional and timely resolution of the merits of the proceedings before the Tribunal.

177I find it would not be efficient to have the applicant commence a separate application for this treatment plan and therefore it is added to the issues in dispute for this hearing.

178Further, I find that there is no prejudice to the respondent with the addition of this treatment plan as an issue in dispute. The respondent conducted IEs in 2019 and in 2020 for the treatment plans of Dr. Shahroknia already in dispute in this hearing.

Preliminary Issue Motion #2: Added Documents

179The applicant seeks to add i) prescription summaries ; ii) photos of the applicant pre-accident; iii) news article; iv) link to news video; v) chronic pain program brochure with description of program.

i) The applicant states that the prescription summaries are essentially a compendium of all of the separate prescription records he obtained over the last several years. I will allow the prescription summaries to be admitted. I find that there is no prejudice in admitting these pages, described as a compendium of the prescription summaries that have been provided over time. Nothing new is added. If the respondent finds that there are new additions then I leave it to the respondent to bring that to my attention prior to the end of the hearing.

ii) Photos: The applicant explained that they will show a change in condition of the applicant, that may or may not be relevant. I allowed the pictures to be admitted and will decide what weight I give them.

iii) News article & iv) News video: These will not be admitted. While they may show the nature of the accident I do not know how fair the reporting is, there is no way for the respondent to respond to it at this time. It also comes very late in this proceeding. The applicant has had them for a long time and they were previously available to the applicant and if they were important to the applicant’s case then they should have been brought forward much earlier than now.

v) Chronic pain brochure – This will be admitted and I will assess the weight. It may or may not be relevant. It is for treatment that can be provided, I am not sure how it is relevant to the cost of examination issue but I will let it in now and determine what weight I give to it.

Preliminary Issue Motion #3: Admitting documents

180Admitting the following documents without the necessity of calling the authors of those documents to prove authenticity: i) Police Report and Officers’ Notes;⁵⁸ ii) Property Damage File;⁵⁹ iii) OHIP Summary Jan 2014-Feb 2, 2017;⁶⁰ iv) Hamilton General Hospital Records;⁶¹ v) Family Dr. File (Dr. Aderibigde);⁶² vi) OCF-3 Dr. Raymond, chiropractor⁶³

181The applicant submitted that the witness list is already very long and these documents are made in the ordinary course and to have to add the authors of each document would put the Tribunal and applicant to great expense.

182The respondent did not take issue with the authenticity of the documents. The respondent is not admitting the documents for the truth of their content at this time but authenticity is not at issue and the documents could be entered without calling the authors.

Motion to exclude witnesses and quash summonses

183The applicant takes issue with the Respondent’s Response to Applicant’s Response to Notice of Motion Dated September 25, 2020 which is essentially a new motion and asks for new relief, includes new grounds, asks to exclude witnesses, and includes further relief to quash the summons that have been served which was not in the original notice of motion.

184I rendered my decision orally at the hearing with written reasons to follow.

185To summarize what I will describe as an overly adversarial motion, a number of witnesses were being added to the hearing by the applicant and as a result, the respondent requested that I adjourn the hearing if I was inclined to permit the additional witnesses.

186Originally the applicant was calling six witness and the respondent had ten. The hearing was originally scheduled for 8 days which included a CAT designation issue. When that issue was resolved, the parties agreed to a 4 day hearing. With 16 witnesses originally contemplated, a 4 day hearing is not realistic.

187I order that the hearing be extended but not adjourned. The witnesses to be heard on the first day of the hearing were on the witness list and were anticipated witnesses and therefore there is no prejudice to commencing the hearing as scheduled. I have looked at that the case conference summary and witness list from September 22, 2020, considered all of the submissions, considered the summons and the prejudice to both parties, and I have decided to allow the following witnesses: Shapresa Imeri, Leslie Birkett, Dr. Dori Becker, Dr. Shahroknia, Dr. Ford, Dr. Perera, Dr. Ali, Rayna Ghatas, and Lisa Becker.

188In terms of the remaining witness that the applicant has asked to add, I am going to allow the applicant to testify, even though he was not listed in the witness list of September 22, 2020. It would be hard for me to decide this matter without hearing from the applicant. I am also going to allow Dina Vanderbeng, Fatos Ademi, Isa Fejza, Gerry Lovell, Mike Strvinko, Melissa Persadie, John Boulanger and Tara Drabnick but they will be last and will not be heard until we continue the hearing. This will allow the respondent to prepare for the additional witnesses and remove any potential prejudice.

Footnotes

1. 1O.Reg. 34/10, as amended
2. 2The details of the preliminary issue motion and reasons for my order are included in the Appendix to this decision which also contains several other preliminary issue motions.
3. 3Exhibit #64, Applicant’s Brief, page 2889.
4. 4Exhibit #7, Applicant’s Brief, page 1731 & 1735. This was mentioned in Ms. Birkett’s (Occupational Therapist) June 18, 2018 report. The applicant lived down the street from Hamilton General Hospital and experiences panic every time he hears an ambulance; the sound will make him feel sick and weak and as a result wanted to move.
5. 5Exhibit #4, Applicant’s Brief page 1709. Ms. Leslie Birkett’s Report, November 27, 2017, indicates that the applicant appeared to understand the content of the assessment although he required translation of information written in English.
6. 6Exhibit #51, Applicant’s Brief, p.1060.
7. 7Exhibit #30, Applicant’s Brief, p.84.
8. 8Exhibit #55, Applicant’s Brief, p.144.
9. 9Exhibit #55, Applicant’s Brief, p.175.
10. 10Exhibit #55, Applicant’s Brief, p. 183.
11. 11Exhibit #28, Applicant’s Brief, p.187.
12. 12Exhibit #40, Applicant’s Brief, p.247.
13. 13Exhibit #8, Applicant’s Brief, p.2468.
14. 14Exhibit #30, Applicant’s Brief, p.71.
15. 15Exhibit #51, Applicant’s Brief, p.1060.
16. 16Exhibit #8, Applicant’s Brief, p. 2467.
17. 17Exhibit#120, Respondent’s Brief, p.169.
18. 18Exhibit #87, Respondent’s Brief, p.64.
19. 19Exhibit #40, Applicant’s Brief, p.219.
20. 20Exhibit #91, Respondent’s Brief, p.421.
21. 21Exhibit #93, Respondent’s Brief, p.21.
22. 22Exhibit #94, Respondent’s Brief, p.138.
23. 23Exhibit #80, Respondent’s Brief, p.81.
24. 24Exhibit #111, Respondent’s Brief, p.154.
25. 25Exhibit #27, Applicant’s Brief, p.187.
26. 26Exhibit #114, Respondent’s Brief, p.38.
27. 27Ex#2 Applicant’s Brief, pdf p.3334.
28. 28Applicant’s Document Brief, Occupational Therapy Consultation Report, Attendant Care Assessment of Leslie Birkett pdf pg. 1705, Ex#4.
29. 29Assessment of Motor and Process Skills
30. 30Exhibit #91, Respondent’s Brief, p.430.
31. 31Exhibit #103, Respondent’s Brief, p.210.
32. 32Exhibit #8, Applicant’s Brief, Occupational Progress Report #2, Leslie Birkett,p.2466.
33. 33Exhibit #91, Respondent’s Brief, p.431.
34. 34Exhibit #18, Applicant’s Brief, p. 714.
35. 35Exhibit #124, Respondent’s Brief, p.465.
36. 36Exhibit #119, Respondent’s Brief, p.514.
37. 37Exhibit #19, Applicant’s Brief, p. 2942.
38. 38Exhibit #19, Applicant’s Brief, p. 2970.
39. 39Exhibit #37, Applicant’s Brief, p.132.
40. 40Exhibit #37, Applicant’s Brief, p.143.
41. 41Exhibit #58, Applicant’s Brief, p.823.
42. 42Exhibit #124, Respondent’s Brief, p.465.
43. 43Exhibit #124, Respondent’s Brief, p.461.
44. 44Exhibit #71, Applicant’s Brief, p.71.
45. 45Exhibit #37, Applicant’s Brief, p.132
46. 46Exhibit #124, Respondent’s Brief, p.459.
47. 47Exhibit #15, Applicant’s Brief, p.2915.
48. 48Exhibit #56, Applicant’s Document Brief, page 838-846, OCF-18 CAT Assessments, May 22, 2019.
49. 49Exhibit#53, CV of Ms. Green
50. 50Exhibit #55, Applicant’s Brief, p.88-184
51. 51Exhibit #55, Applicant’s Brief, p.88-184
52. 52Exhibit #84, Respondent’s Brief, Report of Dr. Khaled, p.577.
53. 5317-006757 v Aviva Insurance Canada, 2018 CanLII 81949.
54. 5418-00838 v. Aviva Insurance Company, 2019 CanLII 14396 (ON LAT), 2019 CanLII14396 (ON LAT) at para 39.
55. 55Exhibit #21, Applicant’s Brief, p.738. (OCF-18)
56. 56Exhibit #22, Applicant’s Brief, p.749 (Denial)
57. 57Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (the “Common Rules”)
58. 58Applicant’s Brief, p.3170-3230
59. 59Applicant’s Brief, p.3240-3291
60. 60Applicant’s Brief, p.1055-1059
61. 61Applicant’s Brief, p.1263-1564
62. 62Applicant’s Brief, p.2474-2888
63. 63Applicant’s Brief, p.50-54