Citation: Kalk v. Intact Insurance Company, 2022 ONLAT 20-002839/AABS - A

Licence Appeal Tribunal File Number: 20-002839/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:

Kerli Kalk

Applicant

and

Intact Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Jeffrey Shapiro, Vice-Chair

APPEARANCES:

For the Applicant:

Roger R. Foisy, Harpreet S. Sidhu, and Daniel Berman Counsel, and

Rusald Laloshi, Paralegal

For the Respondent:

Suzanne Clarke and Brendan Sheehan, Counsel

Court Reporter:

Nicole Smith & Bruce Porter

Heard By Videoconference on:

July 12-14, 16, and 19-23, 2021 & November 17-19, 2021

OVERVIEW

[ 1 ] On August 16, 2016, the applicant (“K.K.”) sustained significant injuries, including numerous fractures, when another vehicle struck her vehicle head-on. K.K. required multiple surgeries and spent nearly two months between hospitals and in-patient rehabilitation. K.K. applied to the respondent (“Intact”) for insurance benefits under the “Schedule”.¹ Intact paid K.K. medical benefits and Attendant Care Benefits (“ACB”) until capped by the non-catastrophic limits.

[ 2 ] The parties dispute whether K.K. is “catastrophically impaired” as defined by the Schedule, and thus entitled to further attendant care (“AC”) and other benefits, and thus, K.K. appealed to this Tribunal for resolution of those disputes.

[ 3 ] This matter was heard over 12 days, with a several month delay in the middle due to the passing of Dr. Kiss, a key insurer examination (“I.E.”) assessor for Intact. After hearing the evidence, I find that K.K. is catastrophically impaired under the definition of Criterion 7 (“WPI” as discussed below), but not Criterion 8, and is entitled to some, but not all, of the benefits she seeks.

ISSUES

[ 4 ] The issues in dispute, as listed in this Tribunal’s July 4, 2018 case conference order, and as confirmed by the parties, are:

1. Did K.K. sustain a catastrophic impairment as defined by the Schedule?

2. Is K.K. entitled to an attendant care benefit in the amount of $6,000.00 from August 16, 2016 to the date and ongoing?

3. Is K.K. entitled to a housekeeping and home maintenance benefit of $100.00 per week from August 16, 2018 to date and ongoing?

4. Is. K.K. liable to repay Intact income replacement benefits of $1,263.80 paid for the period from November 19, 2017 to April 15, 2018?

5. Is K.K. entitled to $2,763.03 for physiotherapy services proposed in a treatment plan dated March 1, 2018 and denied March 19, 2018?

6. Is K.K. entitled to $4,486.85 for occupational therapy services proposed in treatment plan dated April 26, 2018 and May 1, 2018 and denied May 9, 2018?

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

8. Is Intact liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to K.K.?

RESULT

[ 5 ] K.K. is catastrophically impaired under Criterion 7 (Issue 1). K.K. is entitled to some ACB (Issue 2) and housekeeping benefits (Issue 3), upon proof that the benefit has been incurred, and subject to rates set-forth below. K.K. is entitled to the occupational therapy services (Issue 6). K.K. is entitled to interest under the Schedule for amounts incurred (Issue 7). K.K. is not entitled to physiotherapy (Issue 5) or her claim for an Award (Issue 8) or costs.

BACKGROUND

[ 6 ] At the time of the subject August 16, 2016 accident, 24 year old K.K. was an active woman, who completed her 3-year Registered Massage Therapist course and the first of two parts of the RMT certification examinations. She enjoyed rock climbing, sky diving, and water sports with her friends and boyfriend. There is conflicting information of how recovered she was from a 2015 accident. For instance, she left her prior position as too physically demanding and a Form 1 was completed claiming she needed help with some self-care, yet K.K. had just started a new PSW position entailing 12-hour workdays – the accident occurred on her way home from the training – and K.K. testified she was 85% recovered. I find that she was mostly recovered and find the Form 1 from the 2015 accident overstated.²

[ 7 ] There is little doubt that the August 16, 2016 accident was physically and emotionally traumatic. As K.K. was traveling 60 km/h, another vehicle traveling at 80+ km/h – allegedly a drunk driver – crossed the centerline and struck her head-on, spinning the cars around. Beside the severity of the impact, the engine compartment was forced into the passenger compartment, pining her ankles and legs. K.K. was unable to open the door and was only removed with Jaws of Life.

[ 8 ] K.K. sustained a collapsed lung and multiple fractures such as her right ankle, right wrist, hip, back and clavicle, including some of which were displaced and have left her with permeant impairments. It appears she suffered a mild traumatic brain injury and does not recall various events after the accident.³

[ 9 ] She was taken to South Lake Hospital, but due to the severity of her injures transferred to Sunnybrook Hospital where she stayed for 10 days and underwent various surgeries – such as having screws and plates placed in her clavicle and right foot/ankle. She then spent 6-weeks in in-patient rehab. At one point during rehabilitation, she was housed in the same room as the impacting driver.

[ 10 ] K.K. has made great progress in her recovery, and I agree with Intact that she has shown functional abilities, as discussed below. However, her recovery is far from complete and thus, as K.K. submits, there is little doubt the injuries were significant; the issue for the Tribunal is if they are severe enough to be deemed catastrophically impaired. For instance, K.K. never sat for the final exam of the RMT certification and thus was never certified believing that work is too demanding given her physical cognitive and emotional impairments. In fact, she managed a part-time position and other life activities for a while with some success, but her life remains quantifiably altered.

[ 11 ] From my perspective, a recurrent theme throughout the evidence is captured in a statement by Monica Boulis, a currently treating RSW under the direction of an OT, that on face value, K.K. seems normal in the first few moments, but when working with her one quickly sees that she’s struggling mentally, socially, and physically.

ANALYSIS

[ 12 ] Because K.K. has exhausted the non-catastrophic limits for ACB and “med-rehab”, K.K. could not receive any of the requested benefits without enhanced policy limits and benefits that come with being catastrophically impaired. Thus, I must first determine if K.K. has established that she is catastrophically impaired. Except for the repayment issue, K.K. has the obligation (the “onus”) to prove her entitlement to the requested benefits on a balance of probabilities, rather than Intact having an obligation to disprove her entitlement.

Is K.K. catastrophically Impaired? (Issue 1)

[ 13 ] To be deemed “catastrophic”, an applicant must prove she meets one of the eight categories of impairment listed in the Schedule. K.K. submits she meets the definition under criterion 7 (Whole Person Impairment ratings (“WPI”)) and 8 (mental and behavior impairments) of the Schedule.

[ 14 ] Under criterion 7, K.K. must establish that her combined physical and mental behavioral impairments produce a Whole Person Impairment (“WPI”) rating of 55% or more using a rating system based on chapter 4 of the AMA Guides to the Evaluation of Permanent Impairment, 4th ed. (“the Guides”) to rate the physical impairments, and the Guides 6th ed. to rate the mental and behavioral impairments. The latter produces three scales and then uses the median score.⁴ The physical and mental impairment is then combined using methodology under the Guides, 4th ed.

[ 15 ] Under criterion 8, K.K. must establish her impairments resulted in three Class 4 (marked) impairments in any of the four domains, under the rating system outlined in Chapter 14 of the Guides, 4th ed. The Guides provide a method to rate the severity of a person’s mental and behavioral functioning in four areas of function (“domains”) on a scale of 1 to 5 (corresponding to none, mild, moderate, marked and extreme impairment, and expressed as Classes 1 through 5). The four functional areas are: (1) activities of daily living (“ADLs”), (2) social function, (3) concentration, persistence & pace, and (4) adaptation.

i. Whole Person Impairment Percentage of 55% or More

[ 16 ] K.K. relies on multidisciplinary reports of the Canadian Medical Assessment Centre (“CMAC”) which produced a 65% WPI rating, or if Dr. S. Patel’s subsequent mental and behavior rating of 20% is used instead of the 30% by the original neuropsychologist Dr. Solomon’s, then a 60% combined rating is produced. Intact relies on the HVE team, which produced a 44% rating. The ratings on physical injuries are very close, the larger differences are in the neurological and mental/behavioral realms. The ratings are as follows:

Impairment	CMAC	HVE Ratings
Upper Extremity Impairment	11%	10%
Spine Impairment	15%	15%
Lower Extremity Impairment	10%	9%
Headaches	0%	0%
Sleep and arousal	4%	Not addressed
Vertigo	4%	Not addressed
Hearing	3%	Not addressed
Skin Impairment [Scars]	3%	3%
Medication side effects	3%	Not addressed
Mental Status Impairment	14%	7%
Combined Physical Impairment	50%	38%
Mental and Behavioral Impairment	30% (20%)	10%
Combined Physical and Mental and Behavioral Impairment	65% (60%)	44%

[ 17 ] As mentioned, in terms of physical impairment ratings, both teams offered very similar ratings of 35% and 33%. The difference is that Dr. Hanna for CMAC rated the effects of medication at 3% (as did Dr. Waseem, Physiatrist for CMAC), while HVE did not rate it all – and thus appears, improperly, not to have considered it or certainly not explained why it did not rate it. As the medical file abundantly reveals K.K.’s numerous medications, I accept CMAC’s finding.

[ 18 ] In terms of nervous system ratings under Chapter 4, both Drs. Solomon and Basile rated Mental Status Impairment at 14%, while Dr. Kiss, for HVE, rated 7%. All agreed that under the Guides, Chapter 4, Table 2, p. 4/144, K.K.’s impairment falls under the first tier which provides a range of 1 to 14% impairment of the whole person (i.e., an impairment exists but ability remains to perform satisfactorily most activities of daily living). Since a specific value, rather than just a range, is required to arrive at a whole person impairment, Dr. Kiss picked 7% WPI – apparently the midpoint – without explanation.⁵

[ 19 ] I find the 14% rating to be more accurate, for several reasons. First, Dr. Kiss’s report provides no analysis of why a mid-point choice is statistically correct, why factually K.K. is on the midpoint of that range and not a different level, nor does Dr. Kiss dispute or even comment on Dr. Solomon’s rating. I also note, picking 7% rather than 8%, notes rounding down. Due to his passing, Dr. Kiss could not be questioned on his choice.⁶ In contrast, both Dr. Solomon’s and Dr. Basile’s reports and testimony explained their rating, such as noting K.K.’s significant neurological deficits with respect to her cognition put her at the high-end of the 1-14% category, but that she did not require enough direction or supervision to be in the next category of 15-19%.⁷

[ 20 ] Additionally, Dr. Kiss’s report states his opinion is independent of the referral source but does not purport to contain an expert’s duty statement. It also appears the form presented on behalf of Dr. Kiss was not signed by him, rather HVE signed it on his behalf – and it’s not clear why they could do so. All the other Expert Duty Forms were “signed” July 9, 2021 – years after the reports.

[ 21 ] Additional nervous system ratings were advanced by Dr. Basile in Sleep and Arousal at 4%, Vertigo at 4%, and Hearing at 3%⁸, but not addressed by HVE. A central focus of that debate is that Dr. Basile believed K.K. sustained a traumatic brain injury (“TBI”), while Dr. Yahmad, for Intact, did not, which then drives these additional ratings. I generally preferred Dr. Basile’s testimony and opinion for several reasons, although I find his rating for hearing was not sufficiently supported.

[ 22 ] First, while both Dr. Basile and Dr. Yahmad are neurologists, Dr. Basile specializes in treating head trauma and concussions, such as being a consultant for the NHL, and has formal training in behavioural cognitive neurology, neuropsychiatry, and head injury and trauma. He was accepted as an expert in neurology specific to neurological and cognitive impairments in relation to traumatic brain injury, while Dr. Yahmad’s expertise was limited to a physical neurological perspective, with much more limited involvement with treating concussions, and his report notes deferring to other assessors such as for cognitive function. Dr. Basile’s practice is also much more balanced, with approximately 2/3 of it OHIP based and 1/3 on assessments, and of the assessments it was also mixed, although more for injured parties, which he explained was due to funding. In contrast, Dr. Yahmad’s practice is 75% assessments, 100% of which is insurer side. He explained that imbalance due to his belief that insurer assessments allow him to vote his conscience, rather then being asked to amend his report.

[ 23 ] More importantly, Dr. Basile’s testimony seemed to fit better with the overall evidence. I found him to be a persuasive witness. He opined that K.K. met the American Academy of Neurology criteria for persistent post-concussive syndrome, consistent with a traumatic brain injury, and generally considered her symptoms to be relevant, but rated them as relatively mild. His conclusion on a concussion was reached by several other providers, such as the acquired brain injury clinic at Toronto Rehabilitation Institute on March 28, 2019, an April 16, 2018 SPECT scan, and Dr. Solomon on September 24, 2019.

[ 24 ] In contrast, Dr. Yahmad found no impairments from a “strictly physical neurological perspective” and opined a 0% rating, although his co-assessor, Dr. Kiss, did find neurocognitive changes/deficits. Dr. Yahmad believed K.K. did not suffer a concussion but acknowledged that he could not rule one out. He submitted that using a SPECT to diagnose one is essentially reverse engineering a diagnosis when there is no loss of consciousness and intact GCS scores. However, his report notes it is unclear if there was a loss of consciousness, and the evidence suggests retrograde and anterograde amnesia and symptoms which more generally seem to fit with Dr. Basile’s explaining of a concussive syndrome, and particularly cognitive symptoms and the SPECT finding that K.K. displayed.⁹

[ 25 ] Dr. Yahmad also related that K.K. did not report or complain of any cognitive difficulties or memory problems during his assessment and that from a strict physical neurological perspective no impairment was detected, but although he was aware that K.K. had some cognitive issues, he never inquired of K.K. about those issues. He deferred any cognitive or memory issues or psychological symptoms in relation to a possible initial mild traumatic brain injury to the neuropsychologist as that is beyond his area of expertise. Thus, he only focused on physical symptoms.

[ 26 ] As for the unrated areas, Dr. Yahmad did not offer a meaningful basis why he did not rate the unrated areas – and not addressing an area is not the same as a zero rating. Dr. Mula, HVE’s executive summary author and impairment rater, also did not address the omission although raised in the November Reports of Drs. Basile and Hanna.

[ 27 ] Thus, I accept Dr. Basile’s ratings for Sleep and Arousal at 4% and Vertigo 4%, as well as the 14% for Mental Status Impairment.

[ 28 ] In terms of Mental and Behavior Impairments under Chapter 14 (6th ed.), for the final part of the WPI rating, Dr. Solomon provided a 30% rating, Dr. Patel offered a 20% rating, while Dr. Kiss rated 10%. Taking the lowest of these scores – Dr. Kiss’s 10% – and combining it with the above 49% WPI combined physical impairments,¹⁰ produces total 54% WPI. Under the Guides, 54% WPI is rounded up to 55%, which meets the Schedule’s threshold. Nevertheless, I will address the scores, and find Dr. Patel’s 20% score to be the most accurate.

[ 29 ] While Dr. Kiss did not directly challenge Drs. Solomon or Patel’s method or scores, during the hearing Intact argued that Dr. Solomon’s report under the PIRS indicates that K.K. would need supervised care – which does not fit with the evidence. I agree. Except for earlier periods, there is minimal evidence that she needs prompts for showers, etc. I note, too, her Criterion 8 ratings of marked impairments strike me as overstated. Dr. Solomon’s assessments occurred in mid-2019, and perhaps K.K.’s functioning had improved somewhat, which may account for Dr. Solomon’s higher rating.

[ 30 ] On the other end, K.K. submits that Dr. Kiss’s 10% rating is unsubstantiated, as his report provides a limited one-page summary of the BPRS, PIRS and GAF scores with limited to no break-down, and his ratings of mild ratings under Chapter 14 of the Guides 6th ed. conflicts with his moderate impairment ratings under Chapter 14 of the 4th ed. For instance, under the PIRS scale (6th ed.) he rates Activities of Daily Living (“ADLs”) as mild impairments, but yet rates ADLs at moderate (one class more severe) in his Criterion 8 analysis under the 4th ed.¹¹ I agree with those criticisms.

[ 31 ] In contrast, I accept Dr. Patel’s 20% rating as generally fitting with the evidence and being fully supported in his report and by his testimony.

[ 32 ] Combining the 49% combined physical impairments with Dr. Patel’s 20% Mental and Behavioral Impairments produces a 59% WPI rating which surpasses the Schedule’s 55% threshold. Thus, K.K. is catastrophically impaired using the Schedule’s methodology on Criterion 7.

ii. Marked or Class 4 Impairments due to Mental or Behavioural Disorder

[ 33 ] Given my finding that K.K. is catastrophically impaired under Criterion 7, I will address Criterion 8 only briefly as it provides further context. Under Criterion 8, K.K. must establish marked impairments in at least three of the four mental/behavior domains.

[ 34 ] Dr. Solomon concluded K.K. suffers marked impairments in ADLs, Social Functioning, and Adaptation, and a moderate rating in Concentration. Dr. Kiss found moderate ratings in all domains. In other words, Intact contends K.K.’s impairment levels are compatible with some but not all useful functioning, while K.K. contends her impairment levels significantly impede useful functioning.

[ 35 ] I found the evidence strongly supports the moderate impairment levels put forth by Intact. As Intact correctly submits, K.K. has displayed functional abilities incompatible with marked impairments, such as getting married and maintaining a marriage, taking three international vacations, maintaining a job for a significant period of time, and cooking meals and cleaning. In other words, her Impairment levels do not significantly impede useful function. To be clear, however, K.K. established that in all of those examples of useful function, there were nevertheless, impairments. For example, the type of trips and her activities on the trips were noticeably reduced from what would be expected for a healthy woman in her twenties, and her employer corroborated the many accommodations K.K. received and the unique situation of short shifts in the morning and afternoon and how she still struggled.

[ 36 ] Thus, I note K.K.’s mental and behavior impairments alone (Criterion 8) do not render K.K. catastrophically impaired, but it’s the combination of her mental and physical impairments, together, that deem her catastrophically impaired under the Schedule’s definition in Criterion 7.

Is K.K. entitled to an ACB? (Issue 2)

[ 37 ] Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. The application for ACBs is made using a document entitled Assessment of Attendant Care Needs (“Form-1”). Intact approved benefits at the rate of $2,327.34 and paid them through the 2-year eligibility period for non-catastrophic injuries.

[ 38 ] K.K. submits that the proper rate for payment of the ACB is in accordance with three Form 1s: (1) from October 11, 2016 to April 28, 2018 at the rate of $6,000.00 (which is based on a Form 1 recommending $8,815.07 per month, but limited to catastrophic amounts under the Schedule), (2) from April 29, 2018 to March 4, 2021 at the rate of $2,327.24, and (3) from March 5, 2021 to date and ongoing at the rate of $1,667.10. K.K. notes that Intact never prepared its own Form 1.

[ 39 ] K.K. also submits that Intact’s refusal to deem K.K. catastrophic was unreasonable, and thus, under s. 3(8), I should find the Form 1 amounts unreasonably withheld and deem the ACB incurred. Intact submits that since K.K. reached the ACB benefits for non-CAT limits, Intact acted reasonably. Also, even if K.K. is found CAT, K.K. must still establish entitlement to ACB benefits.

[ 40 ] First, I do not find the amounts unreasonably withheld; to the contrary Intact paid to the non-catastrophic limits, and after that point, it reasonably denied the benefit. Second, Intact’s own records show it approved the $2,327,34 rate,¹² and only stopped it due to the eligibility period. I find K.K. is entitled to be reimbursed for all incurred amounts up to those limits. For periods starting March 5, 2021, K.K. is bound by her most current Form 1 of $1,667.10, which I discuss below.

[ 41 ] Third, for periods covered by the $8,815.07 Form 1, perhaps that figure had some basis for a short period of time, but it generally strikes me as out of line with the evidence, such as 6 hours a day to ensure comfort, safety and security in her home environment and more then 10 hours a day (637.4 min/day) to get in an out of a wheel-chair and/or to be self-sufficient in case of an emergency. Still, this is a relative non-issue because ACB was incurred and paid under the $2,327.34 rate, and there does not appear to be any incurred amounts in excess of that $2,327.34 rate.

[ 42 ] Fourth, as of the hearing, K.K. submits the $1,667.10 rate is reasonable and supported by the evidence in general, and the testimony and report of S. Vaisberg, O.T.¹³ Intact submits that the $1,667.10 plan is unreasonable as K.K. is independent with self-care, etc., and if she can navigate the community, she does not need assistance to “ensure comfort, safety and security” in her environment, and moreover, there is no evidence that amounts were incurred under that plan.

[ 43 ] The $1,667.10 plan does strike me as excessive, such as the 3 hours a day for “comfort, safety and security in this environment”, which should be deducted from the Form 1. Likewise, daily hairstyling is excessive and should be reduced. On the other hand, the hygiene items are being performed by her husband, because K.K. has difficulty doing them herself, and thus appear reasonable. While I accept those amounts and order incurred amounts to be paid, it strikes me that further evaluations or a meeting of the minds between the parties ought to occur in the future and more generally K.K. would be better served with O.T. assistance on further strategies to complete those tasks herself rather then requiring indefinite AC assistance.

Is K.K. entitled to a housekeeping benefit (“HHB”) from August 16, 2016 to date and ongoing? (Issue 3)

[ 44 ] Yes. Section 23 of the Schedule provides that an insurer shall pay up to $100 per week for reasonable and necessary housekeeping and home maintenance expenses incurred by an insured person if they sustained a CAT impairment. To be eligible, the insured’s impairment has resulted in a substantial inability for the insured to perform housekeeping and home maintenance tasks that he or she normally performed before the accident.

[ 45 ] The evidence established K.K. is not generally responsible for home maintenance but is for housekeeping tasks. As for the latter, she does do some including housecleaning tasks, but struggles with more involved tasks and would do more if not for the accident. In the meantime, her husband has been doing double duty. The Kalks hired a housekeeper from July 25, 2018 to the present, incurring $2,510.00 since the accident, which appears to be as a result of the accident. K.K. is entitled to be reimbursed for those past incurred amounts and entitled to the benefit as incurred at the statutory rate to date and ongoing.

[ 46 ] I do not accept K.K.’s submission that past amounts should be deemed incurred, retroactively to the date of the accident per s. 3(8). K.K. argues that Intact unreasonably denied the benefit. However, it was not clear that K.K. would be deemed catastrophically impaired.

Is K.K. liable to repay Intact Income Replacement Benefits of $1,263.80 paid for the period from November 19, 2017 to April 15, 2018? (Issue 4)

[ 47 ] Section 52 of the Schedule permits an insurer to require an insured to repay any benefit paid to that person in error, whether the error was on the part of the insurer, insured or other person, but only upon notice going back not more then 12 months. K.K. submits there was a delay in Intact’s claim from June 11, 2018 to February 25, 2019 to re-evaluate the benefit, so that Intact is seeking repayment outside the 12-month look back period. Intact submits that its June 11, 2018 and August 29, 2018 letters requesting repayment¹⁴ satisfy the notice requirement. I agree with Intact. The fact that the parties exchanged further documentation after the notice letter does not reset the look back-period.

[ 48 ] Moreover, the substance of Intact’s claims appears correct, which is that from November 20, 2017 to April 15, 2018, K.K. received 10 IRB cheques of $126.38 totaling $1,263.80, when her entitlement should have been $0, based on employment income that K.K. received during that period. K.K.’s objection appears to be that Intact looked at her total income rather then her weekly income. However, my review of the weekly paystubs – including the missing weeks that K.K. provided an estimate – appears to support Intact’s claim.

Is K.K. entitled to $2,763.08 for physiotherapy (Issue 5) and $4,486.85 for occupational therapy services (Issue 6)?

[ 49 ] Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical expenses that are reasonable and necessary as a result of the accident.

[ 50 ] The parties addressed these plans in summary fashion, and I will too. K.K. submits that even Intact admits a 33% physical impairment rating making these plans necessary. The treatment notes referred to the physiotherapy plan¹⁵ reference further goals, including decreasing pain and helping mobility. Intact submits that s. 47(2) of the Schedule disallows medical services reasonably available from other sources, and in this case, Dr. Castille notes that K.K. accessed OHIP funded physiotherapy on May 17, 2019. While the plan generally appears reasonable, I accept Intact’s submission with regard to this plan, at the time the plan was submitted.

[ 51 ] As for the Occupational Therapy services, Intact submits the services are not necessary given K.K.’s independence in self-care, bathing, ambulating without aides, preparing light meals, cleaning dishes, and grocery shopping. I disagree. It appears the occupational therapy services during that period helped K.K. gain some of her function. The goals set out in an “additional comments” page attached to the OCF-18 appear appropriate and the cost of the plan reasonable. I find the plan reasonable and necessary.

Is K.K. Entitled to Interest (Issue 7), an Award (Issue 8) and/or Costs?

[ 52 ] Section 51 of the Schedule governs interest on overdue payments. In this case, K.K. is entitled to interest on incurred amounts of ACB, HHB, and occupational therapy plan approved above.

[ 53 ] Section 10 of Regulation 664 provides that the Tribunal may make an award in addition to awarding benefits and interest if the respondent has unreasonably withheld or delayed payments. In general, I find Intact’s denials are reasonable. Intact paid benefits up to the non-catastrophic limits and had a reasonable basis for denying catastrophic status, primarily relying on its IEs. The single issue that raises some concern is that it did not send the IEs for addendum reports when the s. 25 assessors had rated areas that the IE assessors did not and had highlighted that those areas were not rated. Still, given the totally of Intact’s otherwise reasonable conduct and those two unrated areas which I assigned 4% ratings, alone, would not have made the difference of K.K. being deemed catastrophically impaired, I do not find that Intact’s denial was “unreasonable.”

[ 54 ] Hearing Costs in this matter are governed by Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), which only allow costs upon a showing of “unreasonably, frivolously, vexatiously, or in bad faith” actions during the proceeding.

[ 55 ] In a nutshell, K.K. submits she is entitled to costs because Intact required the appearance of two of K.K.’s assessors, Dr. Solomon and Dr. Waseem, for cross-examination, but then ultimately waived cross examination just before the witnesses were called, causing K.K. to unnecessarily incur witness attendance cancellation fees. Fortunately, Dr. Waseem did not have such a fee and/or waived his fee. Dr. Solomon’s fee however was not waived.

[ 56 ] While I find the timing of Intact’s decision to waive cross-examination of Dr. Solomon was less than ideal, parties are generally entitled to re-evaluate their case as it goes along, and there does not appear to be any behavior or decision that meets that standard. To be clear, I certainly agree that if a party strategically required unnecessary witness attendance or strategically waived cross-examination at the last moment, such circumstances could meet the Rule 19 standard. However, I do not find Intact’s last-minute cancelation was strategic.

CONCLUSION and Order

[ 57 ] K.K. is deemed catastrophically impaired (Issue 1). K.K. is entitled to the following:

1. An Attendant Care Benefit up to $2,327.34 per month on all incurred amounts from August 16, 2016 through March 4, 2021, and thereafter to date and ongoing, on incurred amounts, on the $1,667.10 Form 1 reduced by amounts consistent with this decision (Issue 2);

2. $100.00 per week for housekeeping benefit from the date of this decision to date and ongoing, upon proof that the benefit has been incurred (Issue 3);

3. $4,486.85 for occupational therapy services (Issue 6);

4. Interest under s. 51 of the Schedule, on amounts due (Issue 7);

[ 58 ] K.K. is liable to repay Intact income replacement benefits of $1,263.80 paid for the period from November 19, 2017 to April 15, 2018, plus interest under s. 52(5) of the Schedule (issue 4);

[ 59 ] K.K. is not entitled to the $2,763.08 for physiotherapy services or an award (Issues 5 & 8).

[ 60 ] The style of cause shall be amended to reflect the applicant’s married name, Kerli Kalk.

Released: June 2, 2022

___________________________

Jeffrey Shapiro

Vice Chair

Footnotes

1. 1Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016), O. Reg. 34/10.
2. 2As addressed below, I also find the October 11, 2016 Form-1 for this accident, by the same Occupational Therapist, to be greatly overstated. Other Form 1s appear more reasonable.
3. 3As discussed below, there is conflicting information if she lost consciousness but does have retrograde and anterograde amnesia associated with TBI. See the Report of Dr. Basile, Ex. 1, p. 632.
4. 4The three scales are (1) the Brief Psychiatric Rating Scale (“BPRS”), (2) the Global Assessment of Functioning scale (“GAF”), and (3) the Psychiatric Impairment Rating Scale (“PIRS”).
5. 5CAT Neurocognitive Assessment Report of Dr. Ivan Kiss dated September 22, 2020, Ex. 1, p. 520-549, at p. 541 (p. 22 of 30 the Report).
6. 6At the start of the hearing, K.K. requested the Tribunal exclude Dr. Kiss’s reports since he could not be examined, while Intact’s position was that it should be able to rely on his reports alone under the circumstances that he could not be examined. I ruled that the hearing would be adjourned several months to allow Intact to secure an alternate assessor given Dr. Kiss’s passing. Ultimately, Intact was unable to secure an assessor in the agreed upon timeframe, and in response, rather then delaying the matter further, K.K. withdrew her objection to Intact relying on Dr. Kiss’s report.
7. 7See, Ex. 1, Dr. Solomon, at p. 306 and Dr. Basile, at p. 639; Transcript of Testimony of Dr. Basile, Ex. 14, p. 31, line 19 to p. 32.
8. 8In this first report, prior to Dr. Basile’s involvement, Dr. Hanna also opined a sleep impairment of 4%, and deferred an ENT impairment rating.
9. 9Ex. 14, Transcript, Dr. Basile, p. 24-31
10. 1035% + (14% + 4% + 4) = 49%
11. 11For instance, compare Dr. Kiss’s reports at Ex. p. 490 and 515.
12. 12See Ex. 3, Adjuster log notes, at Feb 26, 2019.
13. 13Ex. 3, p. 3 – 47.
14. 14Ex. 1, p. 34.
15. 15Ex. 1, Tab 5.I., p. 1125-1139, OCF-18 and Progress Report of Dr. Crowther, Neurological Therapy Services.