Licence Appeal Tribunal File Number: 20-014052/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:
Tashrin Islam
Applicant
and
Toronto Transit Commission Insurance Company
Respondent
DECISION AND ORDER
VICE-CHAIR:
D. Gregory Flude
APPEARANCES:
For the Applicant:
Tashrin Islam, Applicant
Dejan Ristic and David Schell, Counsel
For the Respondent:
Rowin Gocheco, AB Specialist
Chad Townsend and Alexandra Vaiay, Counsel
Court Reporter:
Giles Tingey
Heard by Videoconference:
January 17 to 21, 2022
REASONS FOR DECISION AND ORDER
BACKGROUND
1The applicant, Tashrin Islam, was involved in motor vehicle accident (“MVA”) on January 22, 2016 when she was struck by a Toronto Transit Commission (TTC) bus while crossing at an intersection. The collision knocked her several feet and caused numerous injuries. She applied to the Toronto Transit Commission Insurance Company (TTCIC) for a determination that the MVA caused her to sustain a catastrophic impairment as that term is defined in s. 3(2) of the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg 34/10 (the “Schedule”). The TTCIC takes the position that she does not meet the catastrophic impairment definition, so Ms. Islam submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) to resolve the dispute.
2Section 3(2) of the Schedule sets out various impairments that constitute a catastrophic impairment. They range from quadriplegia and paraplegia to loss of sight and loss of use of a limb. It also imports a guide to calculating catastrophic impairment, the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”). The Guides permit an analysis of the total impact of various impairments not as severe as the list above that can be aggregated to a percentage of complete impairment – 100% being complete impairment and 0% being no impairment. This is referred to as a whole person impairment (“WPI”). The catastrophic threshold is 55% WPI. Practically speaking, because scores are rounded up or down to the nearest 5%, a score of 53% WPI meets the catastrophic threshold. Ms. Islam submits that she has passed that threshold. TTCIC asserts that she has not.
3The Guides have criteria to consider psychological impairments resulting from the MVA in two ways. If the psychological impairment is sufficiently severe, then it may result in a finding of catastrophic impairment without the need to do any further analysis. For situations where the psychological condition does not meet the catastrophic threshold, it may be assigned a WPI score and combined with the score from the various physical impairments.
4There are 4 areas or domains in which psychological function is measured, activities of daily living, socialization, concentration, persistence and pace, and decompensation in work or work-like settings. These areas are then rated on a five-point scale addressing the degree to which any identified condition impairs function. A Class 1 rating indicates no impairment through to a Class 5 rating indicating impairment levels that preclude useful functioning. To be determined catastrophically impaired, Ms. Islam must show that her impairment level in one of the 4 domains is a Class 4 marked or Class 5 extreme impairment. Class 4 refers to impairment levels that significantly impede useful functioning.
5In Ms. Islam’s case, her assessors found that her purely physical impairments did not reach the 55% WPI threshold. When the psychological impairments were factored in, she did reach the threshold. Ms. Islam submits that she also meets the threshold with respect to her purely psychological impairments. She submits that she has Class 4 marked impairments in all 4 domains. The focus, then, will be largely on the psychological evidence.
6There is a dispute over Ms. Islam’s physical impairments. Her assessors, many years post-MVA, determined that she had post-concussion syndrome arising out of a mild traumatic brain injury and assigned impairment ratings accordingly. If she does not have post-concussion syndrome, then, if her psychological impairments are at less than marked level, she does not reach the combined physical and psychological WPI threshold.
7I could not help but be impressed by Ms. Islam. She has coped with learning difficulties throughout her educational career, starting early in her school years. With accommodations, she has earned a degree, upgraded her high school credits, and has now embarked on a second degree. Her post-secondary success was achieved after the MVA, when she refocussed her life on things that were important to her and completed her first degree. She also realigned her social life to those she considered to be her true friends and ceased the extensive socializing that was hurting her educational prospects pre-MVA. It is difficult, looking at these facts, to conclude that she meets the Class 4 level of psychological impairment in any of the domains.
PRELIMINARY ISSUES
8TTCIC initially submitted that two of Ms. Islam’s medical witnesses should not be qualified to give expert and opinion evidence. Following questioning of Dr. Joan Quinn, a psychiatrist, TTCIC withdrew its objection and Dr. Quinn was qualified to give expert and opinion evidence in the field of psychiatry.
9The second expert witness TTCIC took issue with was Dr. Rahul Pathak. Dr. Pathak trained as a neurologist in New York State and practised there until 2015. During his training he developed an interest in pain management. He was registered by the College of Physician’s and Surgeons of Ontario (“CPSO”), with an initial designation in neurology and pain medicine, but more recently, due to policy changes at the CPSO, his designation has been changed to pain management. He is also a Clinical Associate in the Department of Neurology at the University of Toronto. He examined Ms. Islam and authored a Neurology Catastrophic Assessment Report. TTCIC submits that as he is not currently registered as a neurologist with the CPSO, he should not be permitted to give expert and opinion evidence in neurology.
10TTCIC’s objection to Dr. Pathak was nuanced. It did not question his qualifications in pain medicine and had no objection to the report except to the extent that it made neurological findings that, in its view, should only be addressed by a neurologist.
11TTCIC did not raise its objection to Dr. Pathak’s qualifications until the opening of the hearing. I was pointed to no evidence of compliance with Rule 10.4 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”) which states:
A party intending to challenge an expert’s qualifications, report, or witness statement shall give notice, with reasons, for the challenge to the other parties as soon as possible and no later than 10 days before the hearing and must file a copy with the Tribunal.
12The test for the admission of expert evidence is well established. It involves a consideration of four factors: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert. [R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9]. TTCIC did not raise concerns over three factors. Its sole concern was Dr. Pathak’s qualification in the field of neurology. The failure to comply with Rule 10.4 is fatal to its application to exclude Dr. Pathak’s report. Even in my exercise of the gatekeeper function, I would still find his evidence admissible. Dr. Pathak trained as a neurologist and is currently a Clinical Associate in Neurology at the University of Toronto. He meets the generally accepted definition of an expert, that is, someone who by education, training or experience has specialized knowledge that may assist the trier of fact.
ISSUES
13The issues in dispute were identified and agreed to as follows:
I. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
II. Is the applicant entitled to payments for the cost of examinations in the amount of $2,550.00 for a chronic pain assessment plan by Dr. Gupta, dated November 14, 2018?
III. Is the applicant entitled to interest on any overdue payment of benefits?
ANALYSIS
Ms. Islam’s Educational Career and the MVA
14As stated above, Ms. Islam has had laudable success in her academic career, despite having learning difficulties that were identified early on. After graduating from high school in 2014, Ms. Islam decided to study for a degree in architectural technology at Humber College. She had a lifelong interest in architecture and hoped to work in the field. The degree was a 3-year program. Humber College is on the opposite side of Toronto from Ms. Islam’s home, so she decided to stay in student housing near the campus rather than commute. It was her first experience living away from home.
15To be successful in any undertaking requires discipline. Experiencing personal freedom for the first time, Ms. Islam did not find the requisite level of discipline. She spent her time working out, a passion of hers, and socializing. She was in a romantic relationship. She did not attend classes as required, so over the first three semesters before the accident she had been placed on academic probation and had earned seven out of a possible 18 credits. Then the MVA happened.
16Ms. Islam was crossing in the crosswalk at an intersection with a green light. A left-turning TTC bus hit and knocked her several feet. Although there were later suggestions in the medical record that she lost consciousness, there is no contemporaneous evidence that she did so, and Ms. Islam has denied losing consciousness. She described being knocked and dragged and hearing people talking around her. She was taken to the nearby Humber River hospital.
17Thankfully, despite the violence of the collision, Ms. Islam did not suffer any broken bones or internal organ damage. She checked herself out of the hospital after she was seen by a doctor and her friends helped her back to her residence. After several hours the pain hit. She went back to the hospital, but they would not readmit her. She was given painkillers and sent home. She decided that she wanted to move back to her parents’ apartment, so her boyfriend, his brother, and a close friend drove her across Toronto in the early morning hours. She has resided with her parents since.
18For some time, Ms. Islam was largely bedridden. The exact amount of time she needed to be helped from bed to the washroom is in dispute, TTCIC pointing to medical notes that suggest a few weeks to a month and Ms. Islam testifying, supported by her sister’s testimony, that it was about four months. An in-home assessment done by Inna Dainov, Occupational Therapist (“OT”), two months post-MVA noted Ms. Islam had “resumed all her pre-accident self-care activities.” Whatever the exact amount of time, Ms. Islam lost the fourth semester of study at Humber due to her injuries.
19In September 2016 Ms. Islam returned to her studies. She focussed on her work, socialized less, and graduated in 2019 with a B average. This achievement contrasts starkly with the fact that she was on academic probation after each of the pre-MVA semesters.
20The major lifestyle change after the MVA was that Ms. Islam continued to reside with her parents in east Toronto. This resulted in a long commute each way to Humber College. Her sister, Tamrin, had started Humber in 2016, so they were able to commute together in the morning, but due to different class schedules, they did not necessarily commute home together. Tamrin described them leaving home around 7:00 a.m. and returning around 8:00 p.m. Dr. Eisen, a psychiatrist who examined Ms. Islam in February 2019 on behalf of TTCIC, noted she was carrying a heavy book bag when she attended for her assessment, so it is not unreasonable to conclude that she carried a heavy book bag during the commute.
21The two sisters also did not see each other much during the day, so Ms. Islam’s sister Tamrin was unable to confirm or deny if Ms. Islam was going to the college gym or socializing during the day. Other evidence suggests that Ms. Islam had returned to some measure of working out. TTCIC funded a personal trainer, and his reports indicate that Ms. Islam had built up to lifting 95 lbs. This is below her pre-MVA maximum weight of 175 lbs but is still significant. She reported feeling better during this period. When TTCIC stopped the funding for the personal trainer, she stopped working out.
22Ms. Islam has switched the focus of her studies from architecture to nutrition. There is conflicting evidence about the reason for this switch. She testified that she switched because the impairments arising out of her injuries would prevent her from being able to withstand the rigours of a job in architecture. Tamrin testified that it was because a job in architecture involves slouching over a desk, something Ms. Islam could not do because of pain. It is hard to imagine how a career in nutrition would differ markedly in the physical demands it makes on Ms. Islam. Evidence from two friends who testified on Ms. Islam’s behalf, Janan Hassan and Tithi Paul, suggests that it was because of poor job prospects and an increasing interest in nutrition, a subject that was also a lifelong passion. Ms. Paul stated during both examination-in-chief and cross-examination that “she changed fields because of job prospects.” Ms. Hassan testified that Ms. Islam wanted to change to nutrition, because she was more focused on her health.
23Ms. Islam’s actions during the summer of 2019 convince me that the switch in field of study arose out of job prospects. During the summer of 2019 she explored the possibility of pursuing a degree in architecture at the University of Toronto. She felt her marks, on their own, were probably not good enough to get a place in architecture, so she explored options for accommodations because of her learning difficulties. The evidence is not clear whether she got a formal rejection or came to the realization that she would not be offered a place, but by the end of the summer she had decided to switch to nutrition at Ryerson University.
24Both Ms. Islam and Tamrin applied for courses at Ryerson. They were short several high school prerequisites. During the fall of 2019 for two and a half months both attended and successfully completed SCEAS Adult High School. They both started Ryerson in 2020 just as COVID restrictions hit. Courses have been largely online. While the evidence indicates that Ms. Islam is enjoying her nutrition course, she is finding it hard to keep up. She has been given accommodations for assignments, but even with those, she had several assignments outstanding from the previous semester at the time of hearing. There is no evidence that she is failing or has failed any of her courses. In addition, she is involved in the nutrition club and on the executive of the nutri-rights group. She downplays this involvement as requiring minimal effort, but it surely is indicative of engagement with the wider community.
25Ms. Islam had two summer jobs while studying. The first was working for Tim Horton’s in the summer of 2017 and the second as a camp counsellor in July and August 2018. Her 2017 job lasted a month. On the last day she went home with chills, fevers, aches and pains. Both she and her friend, Janan Hassan, with whom she worked, attribute this to pain from the MVA. There is no medical support for this belief. In 2018 she worked at Dorset Park Community Hub. There are no reported problems with this job, although Ms. Islam testified that she was able to isolate for periods when tensions or pain were building.
26Socially, Ms. Islam realigned her social life following the accident. She was described as a social butterfly pre-MVA, which, as shown above, detracted from her studies to the point of her being on the verge of failing. After the MVA she found and focussed on her “true friends,” two of whom testified. She did not cease social interaction, she reduced it. Ms. Hassan describes going to bars and sleepovers before the COVID restrictions were imposed. Ms. Paul describes Ms. Islam attending Ms. Paul’s graduation and having a good time at a party afterwards. She testified that Ms. Islam visited her several times in Hamilton where Ms. Paul is doing a post-graduate degree. She ascribes a recent drop in face to face meetings to COVID. Ms. Paul concluded her evidence-in-chief by saying of Ms. Islam that things had been picking up in the last couple of months.
The Psychological Evidence
27It is against this backdrop of triumph over adversity that I examine the psychological evidence. Ms. Islam relies on the psychiatric report of Dr. Quinn. TTCIC relies on the report of Dr. Eisen. They come to completely opposite conclusions. Dr. Quinn found that Ms. Islam was marked in all four domains, that is, Ms. Islam’s psychological condition significantly impedes useful functioning. According to Dr. Quinn, Ms. Islam is significantly impeded in activities of daily living, socialization, concentration, persistence and pain, and decompensation in work or work-like settings. Dr. Eisen found no diagnosable psychological condition arising out of the accident. He did not discount other stressors, such as coping with learning difficulties and school work, but focussing on functionality, he concluded that Ms. Islam did not manifest a marked impairment in any of the domains as a result of the MVA.
28My difficulty with Dr. Quinn’s opinion is that it ignores the objective evidence of functionality in favour of the subjective presentation of Ms. Islam at the assessment. When Ms. Islam’s high level of academic achievement was put to Dr. Quinn in cross-examination, she took two positions that I think are indefensible. Firstly, she made no attempt to distinguish between pressures on Ms. Islam as a result of her pre-existing learning difficulties and MVA-related issues. Secondly, she mischaracterized Ms. Islam’s academic performance, partly basing her opinion on the fact that Ms. Islam took five years to complete her 3-year Humber degree. Dr. Quinn simply ignored the fact that the lion’s share of the extra two years was Ms. Islam’s underperformance in three semesters prior to the MVA and that the fourth semester was lost due to Ms. Islam’s physical, not psychological condition.
29Dr. Quinn assigned a “marked” designation in the activities of daily living (“ADL”) domain. There is competing evidence about the degree of Ms. Islam’s inability to engage in ADL. Starting with Ms. Dainov’s OT report in March 2016 stating that Ms. Islam was fully functional in all of her personal care activities, through the later OT report of Nina Munir, indicating that Ms. Islam jogged up 8 stairs and completed shopping tasks without problems, it is TTCIC’s position that there are no functional deficits in ADL. Ms. Islam herself limited her personal care issues to being unable to put on a bra, and Tamrin confirmed that she or her mother help her in this regard. Ms. Islam’s OT assessor, Alexa Yegendorf, came to completely opposite conclusions.
30In my view the extent of Ms. Islam’s ability to carry out ADL is to be found in what she actually did with her life, not what happened on a specific assessment. We can all have good days and bad days, but the fact is that, for an extended period, Ms. Islam has managed a lengthy daily commute, balanced course loads, focussed on career options and university applications, socialized with friends, travelling to McMaster University for visits, had sleepovers and attended convocation and socialized at after-parties. Her sister confirms that Ms. Islam is substantially self-sufficient in personal care activities. While Ms. Islam does not help around the house as she once did, the evidence suggests that it is because of exhaustion arising out of managing a university class load that would be daunting to the average individual and must be so much more so to Ms. Islam with her learning difficulties. It is not that she cannot cook and clean because of the accident, it is because her family rally round to give her time to work and rest as a means of coping with her learning difficulties.
31In the domain of socialization, it is clear that Ms. Islam has undergone a transformation. I do not see evidence from her lifestyle that she is significantly impeded from social activities. The evidence discloses a conscious choice to refocus on studies and retain only those friends who supported her when she was recovering from the MVA. This refocus resulted in the end of her relationship, but it came about as a result of reordering priorities, not from a psychological deficit.
32I will address the last two domains, concentration, persistence and pace and decompensation in work or work-like settings, together. From September 2016 Ms. Islam commuted daily across Toronto to Humber College, restarted from scratch and completed her degree in the regulation time of three years, upgraded high school credits, and commenced a degree at Ryerson University. I am forced to ask myself where is the evidence of significant impediment, either in concentration, persistence, and pace or in performance in a work or in a work-like setting?
33I find Dr. Eisen’s analysis, looking at Ms. Islam’s whole history in academia and finding that the challenges she has faced in that area come from her underlying learning difficulties, to be more compelling. Dr. Eisen testified that he found no rateable condition directly resulting from the accident, but by taking an expansive approach, he gave her a rating of mild in each of the four domains. I accept this analysis. He assigned her a 10% WPI score for psychological impairment.
Physical Assessments
34The Guides have a number of chapters dealing with different areas of the body. Chapter 3 deals with the musculoskeletal system, Chapter 4 deals with the nervous system and Chapter 14 deals with mental and behavioural disorders. Ms. Islam’s assessors, Dr Pathak and Dr. Getahun assessed Ms. Islam at 45% WPI under Chapters 3 and 4. Dr. Oshidari, physiatrist assessor for TTCIC, assessed her physical impairments at 16% WPI under Chapter 3 as opposed to 18% from Ms. Islam’s assessors, but gave no rating under Chapter 4. The final % WPI, after factoring in Dr. Eisen’s 10% WPI psychological score, is 53% WPI from Ms. Islam’s assessors and 24% WPI from TTCIC (the various factors combine in a non-linear way).
35There is broad agreement between both sets of assessors with respect to Ms. Islam’s musculoskeletal impairments under Chapter 3. The essential difference between the two assessments is the finding by Dr. Pathak that Ms. Islam suffered from post-concussion syndrome, a neurological condition, and therefore should also be rated under Chapter 4.
36It is difficult from simply reading Dr. Pathak’s report to determine what he bases his diagnosis of post-concussive syndrome on. In his evidence, Dr. Oshidari pointed to a lack of concussion symptoms in and around the time of the accident. Ms. Islam denies losing consciousness, there was no dizziness, blurring of vision, projectile vomiting, amnesia, or other symptoms generally related to concussion.
37The first mention of a diagnosis of concussion is in an assessment conducted on behalf of TTCIC by neurologist, Dr. Baskind, in August 2016, seven months post-MVA. This finding is equally puzzling because his examination does not note any extraordinary findings. Everything was found to be within the normal range. Nonetheless, Dr. Baskind diagnoses mild concussion and says: “based on the history provided as well as today’s examination, the claimant had some symptoms of a mild concussion that are resolving.”
38Dr. Kerry Lawson, a neuropsychologist, examined Ms. Islam on behalf of the TTCIC to answer the question of whether Ms. Islam sustained a mild traumatic brain injury in the MVA. She concluded as follows:
At this time, based on a review of the file documentation, the neurocognitive data delineated above, clinical observations and clinical interview, it is my opinion that Ms. Islam did not sustain a Mild Traumatic Brain Injury in the subject MVA. It is my view (in the context of sound test engagement) that Ms. Islam does not meet the necessary criteria for neurocognitive diagnoses commonly associated with the consequences of a motor vehicle accident. In particular, she does not meet the requisite criteria for the DSM-5 diagnosis of Mild Neurocognitive Disorder (associated with a traumatic brain injury).
39Dr. Oshidari pointed to the lack of neurological symptoms in his examination. He acknowledged that Ms. Islam has headaches but described them as cervicogenic headaches, that is, headaches arising out of cervical spine injuries sustained in the MVA. He also acknowledged the presence of symptoms of chronic pain syndrome. The pain Ms. Islam experienced on palpation of her head was diffuse in nature with no local foci particularly in the region of the greater occipital nerve. This finding accords with Dr. Pathak’s finding in his report that “there was diffuse tenderness to palpation in no clear dermatomal or myotomal distribution.” Dr. Pathak concluded that Ms. Islam suffered from occipital neuralgia and other post-concussion symptoms.
40I find the evidence of Dr. Oshidari that there is no neurological element to Ms. Islam’s current condition more convincing. Dr. Pathak acknowledged in cross-examination that it is usual for post-concussive syndrome to resolve in months, not years. He acknowledged that apparent symptoms may be from other causes. Dr. Oshidari, for instance, pointed out that anxiety and depression impact cognition and may be the cause of many of the symptoms Dr. Pathak relies on. Dr. Pathak states that after a 5-year lapse of time, it is necessary to do a thorough differential diagnosis before diagnosing post-concussion syndrome. As stated above, given the largely conclusory diagnosis in his report, there is no clear indication that he consider a broader spectrum of possible causes.
41Dr. Pathak assigns a 15% WPI for post-concussive symptoms. Given that Ms. Islam’s highest % WPI after discounting Dr. Quinn’s assessment is 53% WPI, then my finding that she does not suffer from post-concussion syndrome takes her below the catastrophic threshold. Accordingly, I find that Ms. Islam is not catastrophically impaired as a result of the MVA.
42TTCIC’s responsibility to pay for the costs of a catastrophic impairment assessment is governed by s. 25 of the Schedule. In particular, s. 25(1)5 states that TTCIC is liable to pay:
Reasonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.
43There are further provisions. Section 25(3) limits payment for professional services to the rates set out in the Professional Services Guideline. Section 25(4) addresses transportation to and from an assessment. It provides for payment for “authorized transportation expenses incurred in transporting the insured person to and from an assessment or examination.” “Authorized transportation expenses” are further defined in s. 3(1) as expenses “that are authorized by, and calculated by applying the rates set out in, the Transportation Expense Guidelines.”
44The invoice for the assessment in question is dated November 22, 2018 and refers to an OCF18 submitted on November 14, 2018. The OCF-18 is not in the record. The cost breakdown from the invoice was $2,000 for the assessment, $200 for preparation of OCF18 form, $200 for preparation of an Application for Catastrophic Impairment OCF19 form and $150.00 transportation to and from the assessment.
45TTCIC’s submissions on this issue are limited to asserting that, contrary to Ms. Islam’s position that she never received a denial of this OCF-18, TTCIC did, in fact, deny the benefit. The denial referred to by TTCIC states that the OCF-18 is denied because Dr. Saplys, its insurer’s examination examiner, determined that Ms. Islam should not be provided with further facility-based treatment. Since the OCF-18 is for an assessment and not for further treatment, I accept Ms. Islam’s interpretation that there never was a proper denial. There are no medical reasons supporting the denial of an assessment as required by s. 38(8).
46In determining whether an assessment is reasonable, the Tribunal does not have the benefit of diagnoses and proposed treatment. Rather, there is a speculative dimension to assessments, based on how the insured person presents. The question is: does the insured person present with symptoms or a condition that warrants further investigation. If the answer is yes, then a further assessment is warranted. The consideration should not be based on hindsight, but on the best evidence available at the time. An assessment is no less reasonable because it ultimately shows the insured person does not have the suspect condition, if there were reasonable grounds for suspicion that the condition might be present.
47Looking at Dr. Gupta’s catastrophic impairment assessment, the fact that I have found that Ms. Islam is not catastrophically impaired is not determinative. Rather, the focus is whether it was reasonable for Dr. Gupta to suspect she might be. Given the facts of this case, especially Ms. Islam’s self-reporting of the impact of the MVA on her life, it was reasonable for Dr. Gupta to conduct a catastrophic impairment assessment.
48There are allowances of up to $2,000 for the assessment, and up to $200 for each for the preparation of the OCF-18 and OCF-19. TTCIC does not take issue with these amounts. Accordingly, I award $2,400 for the OCF-18. Transportation is dealt with in a separate guide, the Transportation Expense Guideline.
49The major feature of the Transportation Expense Guideline is that it is subject to a 50 km deductible. The amount claimed does not break down the means of transportation, taxi, Uber, personal car, etc. The Transportation Expenses Guideline requires that “the selected mode of transportation should be the most economical and practical for the distance to be travelled and be appropriate under the specific circumstances.” The mileage rate for personal automobile after October 1, 2016 is $0.40/km. This is easily the most economical and a charge of $150 represents 425 km of personal car travel (375 km plus 50km deductible), far in excess of the distance across Toronto from Scarborough to Weston. Ms. Islam provided no further evidence of her means of travel. Even allowing for some less economical form of transport that actually cost $150, I can take adjudicative notice of the fact that the round trip from Ms. Islam’s home to the assessment facility is approximately 70 km. Allowing for the deductible of 50 km, the maximum Ms. Islam would be entitled to is approximately $40.
50In the absence of clear evidence from Ms. Islam on the form of transport, supported by invoices for the transportation provided, I must disallow the $150 claim for transportation.
Interest on the OCF-18
51My finding above that TTCIC failed to give medical reasons for its denial of Dr. Gupta’s OCF-18 triggers its obligation to pay interest under the Schedule. While the Schedule is not a model of clarity on the calculation of interest, s. 51(2) provides for the payment of interest on overdue amounts. Section 38(15) provides that amounts unpaid 30 days from the date of the invoice are overdue. Thus, TTCIC is liable for interest from December 30, 2018 to the date of the release of this decision.
52There are two applicable interest rates under the interest section in the Schedule according to s. 51. Section 51(3) provides for interest at the rate of 1% per month, compounded monthly, for the period from December 22, 2018 to November 25, 2020. From November 26, 2020, the date of the application to this Tribunal, by virtue of s. 51(4), TTCIC is subject to simple interest at the rate of 0.5% until the release of this decision.
CONCLUSION
53I find that Ms. Islam did not suffer a catastrophic impairment as a result of the MVA. I find that she is entitled to $2,400 for the OCF-18 in dispute and nothing for the payment of transportation expenses. She is entitled to interest in accordance with the Schedule as set out above.
Released: May 30, 2022
__________________________
D. Gregory Flude
Vice-Chair