Bernard v. Unica Insurance Inc., 2022 CanLII 49957

Citation: Bernard v. Unica Insurance Inc., 2022 ONLAT 20-007082/AABS

Licence Appeal Tribunal File Number: 20-007082/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:

Kristofer Bernard

Applicant

and

Unica Insurance Inc.

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Kristofer Bernard, Applicant Doug Wright, Counsel

For the Respondent: Donna Asselin, AB Specialist Jamie Pollack, Counsel John Heeney, Counsel

Court Reporter: Giles Tingey

HEARD: by Videoconference: October 25, 2021, to November 3, 2021

OVERVIEW

1The applicant, K.B. was injured in an automobile accident on January 26, 2016, and sought benefits from the respondent, Unica, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010.¹ Unica denied K.B.’s claim that he suffered a catastrophic impairment (“CAT”) as a result of the accident. K.B. disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES TO BE DECIDED

2The following issues are to be decided, as set out in the case conference order:

a. Did the applicant sustain a catastrophic impairment pursuant to s. 3.1(1) of the Schedule?

b. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $320.00 per week for the period May 29, 2019 to date and ongoing?

c. Is the applicant entitled to an attendant care benefit (“ACB”) in the amount of $6,000.00 per month for the period of January 26, 2016 to date and ongoing?

d. Is the applicant entitled to $5,821.46 for occupational therapy services, recommended by NCCO Rehab in a treatment plan dated November 17, 2017, and denied on January 8, 2018?

e. Is the applicant entitled to $2,200.00 for an occupational therapy assessment, recommended by NCCO Rehab in a treatment plan dated June 5, 2020, and denied on July 9, 2020?

f. Is the applicant entitled to $4,200.00 for occupational therapy services, recommended by Okell Rehabilitation, in a treatment plan dated July 8, 2020, and denied on July 23, 2020?

g. Is the applicant entitled to housekeeping benefits in the amount of $23,400.00, in a treatment plan dated April 18, 2019, and denied September 27, 2019?

h. Is the applicant entitled to the CAT funding limit of $914,000.00 for medical, rehabilitation and attendant care benefits?

i. Is the applicant entitled to interest on any overdue payments of benefits?

j. Is the applicant entitled to an award under Ontario Regulation 664, R.R.O. 1990?

RESULT

3K.B. is not catastrophically impaired under s. 3(2)(e) or s. 3(2)(f) of the Schedule.²

4K.B. is entitled to NEBs in the amount of $320.00 per week from May 29, 2019, to date and ongoing. Interest is payable in accordance with the Schedule.

5K.B. is not entitled to the ACB or housekeeping / home maintenance benefit in dispute, as he has not established that they are reasonable and necessary. Accordingly, K.B. is not entitled to interest because the benefits are not payable.

6K.B. is not entitled to the November 2017 or July 2020 treatment plans for OT services as he has not established that they are reasonable and necessary. No interest is payable.

7K.B. is entitled to the June 2020 treatment plan for the OT assessment as he has established that it is reasonable and necessary. Interest is payable in accordance with the Schedule.

8I decline to order an award as I do not find that Unica unreasonably withheld or delayed payment of benefits.

BACKGROUND

9K.B.’s pre-accident medical history is notable in that he has been diagnosed with attention deficit hyperactivity disorder and Asperger’s syndrome, which causes impaired language and communication skills as well as repetitive or restrictive thinking and behaviour. In addition, K.B. receives funding through the Ontario Disability Support Program.

10On January 26, 2016, K.B. was hit by a car while riding his bicycle. His main injury was a comminuted fracture of his left tibia/fibula. He underwent surgery, requiring internal fixation with intramedullary nailing of the tibia. To date, K.B. has a rod that runs down the length of his lower leg. He returned to the hospital several weeks after the initial surgery due to pain and had emergency surgery to repair the peroneal artery and a fasciotomy. The second surgery result in scarring and permanent disfigurement of the left leg. K.B. had tendon lengthening surgery on March 1, 2017.

11As a result of the surgeries, particularly the unsuccessful March 2017 surgery, K.B. will have permanent physical impairments, pain, difficulty walking for long periods, standing for long periods, having to walk with a cane, balance issues and scarring.

12The parties agree that from a physical perspective, K.B.’s injuries are significant, permanent impairments. The non-CAT $50,000 medical/rehabilitation funding limit was exhausted by December 28, 2017. I note that K.B.’s mother, has a pre-existing psychiatric history and her condition deteriorated to the point of being CAT as a result of K.B.’s accident.

13The CAT assessors for Unica concluded that K.B. suffered a 44% whole person impairment (“WPI”). Where the parties disagree is whether K.B. suffered impairments from a psychological perspective that meet the criteria for a 55% WPI.

14For the purposes of this proceeding, I will focus on whether K.B. suffered a marked or extreme impairment as set out under s. 3(2)(f) of the Schedule. In addition, I will discuss whether the benefits claimed are reasonable and necessary.

OVERVIEW OF THE GUIDES

Marked Mental and Behavioural Impairment – Criterion 8

15The Schedule sets out a number of criteria which, if met, will result in a determination of catastrophic impairment.

16Under Criterion 8, the Schedule provides that K.B.’s impairments are to be assessed in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (the “Guides”).

17For the purposes of making a determination in this proceeding, I will rely on Chapter 14 of the Guides, which deals with Mental and Behavioural Disorders.

18Section 3(2)(e) of the Schedule provides that an individual is catastrophically impaired if they have an impairment or combination of impairments that results in a WPI rating of 55% or more when rated in accordance with the Guides.

19Section 3(2)(f) of the Schedule provides that in order to have sustained a catastrophic impairment, those impairments must result in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) in one sphere of functioning due to a mental or behavioural disorder as described in Chapter 14 of the Guides.

Is K.B. catastrophically impaired in accordance with s. 3(2)(f) of the Schedule as a result of the January 26, 2016, accident?

20As this accident occurred before June 1, 2016, K.B. is only required to establish that he sustained one marked mental and behavioural impairment in order to qualify as catastrophically impaired. The table at p. 301 of Chapter 14 of the Guides, 4th edition defines a Class 4 Marked Impairment as “impairment levels significantly impede useful functioning”.

21If I find that K.B. is catastrophically impaired as a direct result of the accident, he will have access to a greater availability of benefits. However, he will still be required to establish that any benefits he seeks are reasonable and necessary.

22Based on the evidence and the parties’ submissions, I find that K.B. has not established that he is catastrophically impaired in accordance with s. 3(2)(e) or s.3(2)(f) of the Schedule.

23In determining whether K.B. satisfied this test, I considered the reports of the following key assessors, Dr. Waisman, psychologist and Ms. Yegendorf, occupational therapist on behalf of K.B. and the s. 44 insurer examination (“IE”) assessors, Dr. Sivasubramanian, psychologist and Ms. Javasky, occupational therapist.

Dr. Waisman’s Report

24Dr. Waisman assessed K.B. on August 5, 2020. Dr. Waisman testified that K.B. had difficulty articulating his symptoms, which was consistent with an individual with an Asperger’s diagnosis. Dr. Waisman commented that this diagnosis results in social interaction difficulties, social awkwardness, difficulties with social cues and difficulty with changes in routine.

25Dr. Waisman testified that K.B.’s impairment ratings in the four domains of functioning were: marked impairment in activities of daily living; marked in social functioning; moderate in concentration, persistence and pace, and marked in adaptation. Dr. Waisman opined that people may fluctuate in their ratings, and that impairment levels can worsen/increase over time. Dr. Waisman further testified that K.B.’s impairment level impedes useful functioning, and he leads a life that shields and isolates him from being able to adapt to a normal life.

26Dr. Waisman diagnosed K.B. with Somatic Symptom Disorder and Major Depressive Disorder. Dr. Waisman went on to note that based on the Global Assessment of Functioning score, K.B. had a 40% WPI rating (which is relevant to s. 3(2)(e) of the Schedule’s definition of catastrophic impairment).

27On cross-examination, Dr. Waisman testified that K.B.’s pre-existing behavioural diagnoses present a unique challenge, in that he can’t give an account of his history the way an individual unaffected by Asperger’s could. Dr. Waisman went on to state that he observed a consistent pattern of reporting, which revealed that the pre-accident reports of functioning were different from post-accident functioning.

Dr. Sivasubramanian’s s. 44 Report

28Dr. Sivasubramanian (“Dr. S.) testified that he assessed K.B. on two occasions, for the purpose of this proceeding, to determine whether K.B. was catastrophically impaired. Dr. S. testified that K.B. reported mild traffic anxiety but did not demonstrate any psychological symptoms. In his report dated September 7, 2019, Dr. S. concluded that K.B. did not have a diagnosable psychological impairment and rated him with having a Class 1 or no impairment in each of the four domains of functioning.

29On the evidence, I prefer the report of Dr. S. over that of Dr. Waisman for several reasons. First, Dr. S. had assessed K.B. on more than one occasion and was therefore more familiar with K.B. than Dr. Waisman. Second, Dr. Waisman provided no persuasive explanation for the change in K.B.’s condition. Dr. Waisman testified that he mainly relied on the occupational therapy (“OT”) report from Ms. Yegendorf, which was not a completely accurate report, which I will discuss later. Dr. Waisman essentially concludes that K.B. meets the definition of CAT based on his deterioration and self-isolating behaviour.

30Third, in the three to four years post-accident, K.B. maintained friendships, socialized, had intimate relationships and engaged in daily activities, with limitations due to his leg injury. Lastly, despite the claims that K.B. had difficulty communicating due to his Asperger’s, I found him to be a communicative, responsive and credible witness as he was able to answer all questions about his pre-existing and post-accident well-being with little to no difficulty.

Ms. Yegendorf’s OT Report

31Ms. Yegendorf testified that the assessment was initially conducted in-home, with the family members participating to the extent of corroborating K.B.’s account of his daily routine. His mother, N.B., conducted a collateral interview separately from K.B. As part of her observations, she reported on the state of K.B.’s bedroom, noting a strong cat waste odour, clothes left around the room, and that K.B. was not very engaged in the assessment, as he was on his phone. Ms. Yegendorf also testified that the verbal reports did not coincide with the situation she observed in the bedroom, and that K.B. seemed oppositional to cues for maintaining self-care.

32Ms. Yegendorf went on to report her two-day observations, which started at home, and then moved to a nearby Walmart, where she observed K.B. engage in an assessment of his concentration, persistence and pace. Ms. Yegendorf observed that K.B. was able to complete the tasks in Walmart without difficulty. Ms. Yegendorf noted that K.B. has difficulty expressing his emotions and struggles with understanding his feelings of sadness. In her report, she noted that “he struggles to understand and express his emotions and as a result they are manifested in his behaviours, rather than his verbal abilities.”³

Ms. Javasky’s s. 44 OT Report

33On behalf of Unica, OT Ms. Javasky testified that she conducted two assessments: a CAT determination and situational assessment both on September 27, 2019. Her testimony was that K.B. was observed to be capable of leaving home without supervision and reported that he would ride his bicycle occasionally or walk to the store without supervision. In her report, she noted that K.B. denied any change in his relationship with his family. The report noted that K.B. continued to maintain relationships with friends and would go to the mall or play video games. K.B.’s own testimony was that he had a new girlfriend at the time of this assessment that he communicated with daily.

34Ms. Javasky observed K.B. in a social environment, that being a trip to the mall, where he was observed to complete a series of tasks without difficulty. I note this is similar to Ms. Yegendorf’s observations at the Walmart. Ms. Javasky noted in her report that K.B. demonstrated good social skills and problem-solving capability. K.B. also denied any changes to his ability to cope with stressful situations.

35While both Dr. Waisman and Dr. S. both relied heavily on the respective OT reports, I am persuaded by the s. 44 IE report from Ms. Javasky, similarly to my preference of Dr. S.’s report over Dr. Waisman, because of the approaches that each OT did their respective assessments. Ms. Javasky’s observations were supported by the documented evidence that K.B. relies upon. For example, based on his own self-reporting, K.B. does not appear to have any notable or diagnosed psychologically based accident-related symptomatology.

SUMMARY

Section 3(2)(e)

36K.B. did not adduce any evidence to refute Unica’s position that it determined he has a WPI of 44%. Dr. Waisman opined that K.B. should have a WPI of 40% based on his overall marked impairment due to mental or behavioural impairment. Despite this opinion from Dr. Waisman, K.B. has not produced any evidence to support what an appropriate WPI calculation would be, in the event that he suffered mild or moderate impairment.

37Based on the 44% WPI, K.B. would require a further 19% WPI in order to meet the threshold established in the Combined Values Chart of the Guides. Even if K.B. argued that a moderate impairment would attract the requisite WPI rating in the required range, I have not been directed to any evidence that would assist in determining whether a moderate impairment would have a WPI of 19% or more. There is no expert opinion that supports even a potential WPI range, to achieve the 55% WPI required by s. 3(2)(e) of the Schedule.

Section 3(2)(f)

38Dr. S.’s opinion was in line with the opinion of K.B.’s initial psychological assessor, Dr. Gerber. Dr. Gerber did not find that K.B. suffered any diagnosable psychological impairment as a result of the accident. It is unclear why K.B. did not return to Dr. Gerber, who already has a history with K.B. and based on previous experience more apt to do a comparison between 2018 and 2020 regarding K.B.’s alleged deterioration, and to obtain an addendum or updated psychological report. As such, there was no second report from Dr. Gerber for me to consider.

39Further, the Ontario Disability Support Program file does not contain any records that support that K.B. suffers from accident-related psychological impairment. Most notably, the family physician records are largely silent with any notations that would support complaints or recommendations for psychological-based treatment or medication.

40I find the evidence to be persuasive in indicating that K.B.’s psychological symptomatology falls short of meeting the requirements to establish that he suffered catastrophic psychological impairment as a result of the accident.

41Consequently, I find that K.B. has not established that he suffered a Class 4 (marked impairment) or Class 5 (extreme impairment) in one or more sphere of functioning due to a mental or behavioural disorder as described in Chapter 14 of the Guides.

NON-EARNER BENEFITS

42Section 12 of the Schedule provides that an insurer shall pay for a NEB to an insured who sustains an impairment as a result of an accident and suffers a complete inability to carry on a normal life as a result of an accident. The Schedule defines a “complete inability” as a person who suffers a complete inability to carry on a normal life if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinally engaged before the accident.

43It is well-settled, and the parties agree, that Heath v. Economical Mutual Insurance Company⁴ provides the framework for the NEB analysis to determine whether an insured suffers a complete inability to carry on a normal life. Heath provides that the applicant may identify his or her “valued” activities of daily living and submit how, as a result of the accident, those most valued activities have fundamentally changed due to pain, this resulting in a complete inability to carry on a normal life. Activities identified by an applicant as being highly valued are generally afforded more weight. In all cases, the onus is on the applicant to established entitlement to the disputed benefit.

44NEBs under s. 12 of the Schedule prior to June 1, 2016:

a. Were not payable for the first 26 weeks after the onset of the complete inability to carry on a normal life;

b. Were increased to $320.00 per week after two years post-accident if the insured was enrolled in an educational program at the time of the accident. K.B. was a college student at the time of the accident; and

c. Had an available duration of entitlement for the life of the insured.

45K.B. submits that the opinions of Dr. Bhargava, orthopaedic surgeon and Dr. Waisman, support that K.B. suffered a complete inability to carry on a normal life, based on their respective expertise combining both physical and psychological impairments.

46In his testimony, Dr. Bhargava referenced his observations of K.B. during the August 16, 2019, assessment. Dr. Bhargava provided observations of K.B.’s left leg injury, the impacts of the surgeries, and the decreased level of functionality. Dr. Bhargava stated that K.B.’s injury is a permanent deformity, with fixed, non-functional range of motion in the left ankle, leaving him with a life-altering disability. Dr. Bhargava testified that K.B. will continue to walk on his toes and noted a concern about the impact of the leg injury on his left knee. Dr. Bhargava opined that K.B. could not carry on a normal life as a result of the accident.

47On cross-examination, Dr. Bhargava was questioned as to why a functional abilities evaluation (“FAE”) was not performed. Dr. Bhargava’s response was that an FAE was not necessary because K.B. was not performing duties that would warrant an FAE. Dr. Bhargava concluded that an FAE was not required to provide an opinion on the extent of K.B.’s injuries.

48In his August 2019 report, Dr. Bhargava noted that K.B. is impaired in his ability to perform tasks that require prolonged walking, standing, navigating stairs or uneven surfaces, squatting, stooping, and crouching due to limitations in his left ankle range of motion. K.B. requires the use of a cane at all times due to balance issues. Dr. Waisman provides an opinion on K.B.’s psychological symptomatology and well-being, as it pertains to the NEB, however, my focus on is K.B.’s physical impairments in determining his entitlement to the NEB.

49Unica relies on several of its s. 44 IE reports to support its determination that it properly stopped NEBs effective May 5, 2019. Dr. Alvi, orthopaedic surgeon (diagnosed mild to moderate myofascial strain-type injuries without neurological defects); Dr. S. (opined that K.B. did not suffer from any diagnosable psychological impairment, concluding that he did not suffer a complete inability from a psychiatric perspective); Dr. Kucher, neurologist (no complete inability); Dr. Hope, who conducted a neurocognitive report (no barriers found to prevent K.B. from returning to his pre-accident education tasks); Ms. Au, OT (demonstrated limited mobility with left ankle movement, restricted carrying, squatting and kneeling and concluded limitations were not severe enough to render a complete inability).

50I find that K.B. has established entitlement to NEBs for the following reasons:

a. Ms. Au notes in her first report (September 21, 2017), that K.B.’s current ongoing limitations due to multiple fractures significantly limit his ability to engage in almost all aspects of his activities of daily living, including in the areas of personal care tasks, homemaking/maintenance tasks, school activities and leisure activities on a daily and a continuous basis. It was Ms. Au’s opinion, that “the client suffers a complete inability to carry on a normal life at the current stage”;⁵

b. In her second report dated April 9, 2019, Ms. Au, notes that K.B.’s ongoing limitations due to his injuries significantly limit his ability to engage in almost all aspects of his activities of daily living;

c. At the time of Ms. Au’s second report, K.B was using a cane and he reported that his friends no longer visit him; and

d. Ms. Au contradicts herself in her second report despite her earlier opinion in the same report about K.B.’s limitations, stating, “from a physical functional perspective…. observations of tasks demonstrations, demonstrated physical tolerances, and the results of objective testing…..the client does not suffer from an impairment…to suffer a complete inability to carry on a normal life at the current stage of…recovery”.⁶

51Despite Unica’s position on the NEB issue, I find that K.B. has shown that he is significantly limited from engaging in substantially all of his pre-accident activities. K.B. testified that he would ride his bicycle everywhere, everyday, sometimes for several hours, and he is now limited to 30-60 minutes occasionally, per week. As an activity that he testified was very important to him, I find the substantial reduction in his ability to engage in one of his favourite pastimes to be indicative of a complete inability to carry on what was previously part of his ‘normal life’.

52Further, despite his challenges with school, K.B. demonstrated that with accommodations, he was able to engage in pursuing some level of post-secondary education, and post-accident, as time passed, he lost the desire to return to school. I note that K.B.’s social interactions were limited to a small number of friends/intimate relationships, however, with the deterioration of his ability to walk without assistance, he has also not connected socially with anyone outside of his immediate family.

53Given his already limited social engagement, as a result of his pre-existing behavioural challenges, this significant accident has further reduced his level of comfortability and physical ability to engage in many of his pre-accident social interactions.

54For these reasons, I find that K.B. has met his onus to establish that he suffers a complete inability to carry on a normal life, based on his physical injuries as a direct result of the accident.

ATTENDANT CARE BENEFIT

55Section 42(1) of the Schedule states that an application for ACBs is required to be in the form of, and contain the information required to be provided in, the version of the document entitled, “Assessment of Attendant Care Needs” (“Form-1”). Section 19 of the Schedule provides that the 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 services provided by an aide or attendant.

56There are two amounts of ACBs available, depending on the extent of K.B.’s injuries. For non-CAT injuries, the amount available was a maximum of $3,000.00 per month with a total maximum of $36,000.00 up to two years post-accident. If K.B. sustained a catastrophic impairment, he would have access to a maximum of $6,000.00 per month with a total maximum lifetime amount of $1,000,000.00. In this matter, as I have determined that K.B. is not catastrophically impaired, he is not entitled to the $6,000.00 per month.

57The OT, Ms Moylan, recommended $6,792.81 per month in ACBs according to the Form 1 dated July 29, 2017. It was Ms. Moylan’s opinion that K.B. required ACBs, as she had concern for his ability to navigate stairs, that he would be unsafe in an emergency situation and that he required assistance and emotional support. Ms. Moylan also recommended housekeeping in the Form 1, due to the state of K.B.’s room.

58Ms. Moylan further testified about her observations of K.B. on different occasions. In 2017, she observed weight differences; between June 2020 and August 2021, she noted weight differences; and between August 2021 and September 2021, she observed a decline in hygiene practices. She prepared a second Form 1 dated September 13, 2021, in the amount of $7,839.12 per month. Based on her observations, Ms. Moylan recommended that K.B. receive 24-hour care and 600 minutes of custodial care. Her evidence was that this second recommendation was similar to that of the 2017 Form 1, with the exception that K.B. currently needed additional cueing and prompting.

59On cross-examination, Ms. Moylan was questioned about the availability of any pre-accident records. Notably, she did not have the pre-accident school records or all available pre-accident medical records. It was Ms. Moylan’s testimony that she did not think the pre-accident records were necessary due to K.B.’s physical condition.

60Unica relies on the Form 1 dated September 8, 2017, in the amount of $2,209.36 per month, which was prepared by occupational therapist, Ms. Au. During the in-chief questioning, Ms. Au testified that she prepared two reports, the one at issue for the ACB, and a second report in April 2019 addressing the NEB. In responding to questions about her assessment of K.B. Ms. Au testified that she found he had sufficient functional capacity, strength and range of motion to engage in some of his activities of daily living, including personal care tasks, dressing, undressing and grooming.

61In her September 2017 report, Ms. Au reviewed K.B.’s pre-accident medical history and level of function. Of note, in discussing K.B.’s pre-accident function with his mother, N.B. reported that prior to the accident, K.B. needed regular reminders to shower, change his clothes and other personal care tasks.

62I find Ms. Au’s report persuasive for several reasons. First, Ms. Moylan did not have any pre-accident records available for review and was therefore not fully informed about the pre-accident need for cueing. Further, K.B.’s school records, which note his limitations due to Asperger’s, were not provided to Ms. Moylan. Given these gaps, I find Ms. Moylan’s report undermined. Second, despite part of the basis for recommending ACB’s due to decreased mobility managing the stairs, I note that post accident, K.B. moved from a bungalow to a to a two-storey home, with his bedroom being on the second floor of the home. Ms. Au testified that she observed K.B. manage the stairs with a safe, steady gait. Third, K.B. argues that he requires cueing assistance with his self-managing tasks, however, pre-accident, in terms of managing his self-care and activities of daily living, he required a similar level of cueing and reminders.

63Lastly, K.B. testified that the only services provided were housekeeping (room cleaning, laundry and bathroom cleaning). He further testified that these services were provided for both him and his mother. The service provider, Ms. Khaligh, testified that she continued to provide attendant care services to N.B. at the same hours. On the evidence, it was not clear which services were provided specifically for K.B. versus those provided for his mother.

64For these reasons, I find that K.B. is not entitled to payment for ACBs as he has not demonstrated the benefits are reasonable and necessary for the period in dispute and has not clearly demonstrated what services were incurred.

HOUSEKEEPING

65Section 23 of the Schedule provides that payment for housekeeping and home maintenance is limited to persons who are determined to be CAT impaired. In order for K.B. to receive payment for housekeeping and home maintenance, he must be CAT and also prove that the benefit is reasonable and necessary, in accordance with ss. 14-17 of the Schedule.

66Similar to my determination regarding the ACB, K.B. has not established that the housekeeping/home maintenance benefit is reasonable and necessary.

67Quite simply, K.B. has not provided evidence that the benefit is reasonable and necessary. Aside from not being found CAT impaired, there is no optional benefit available in order to claim housekeeping through any available increased funding. Notably, there is no evidence that the housekeeping expenses claim of $23,400.00 have been incurred. Further, as Ms. Khaligh testified, it is unclear what services were performed specifically for K.B., when she also provided services for N.B. at the same time.

68On this basis, I find that K.B. is not entitled to the housekeeping and home maintenance benefit as it is not reasonable and necessary.

Are the Treatment Plans Reasonable and Necessary?

69K.B. seeks payment for three treatment plans: November 17, 2017, in the amount of $5,821.46; June 5, 2020, in the amount of $2,200.00; and July 8, 2020, in the amount of $4,200.00. While the first two treatment plans were denied as a result of the non-CAT limit being exhausted, the last treatment plan was denied on the basis that the s. 44 CAT IEs determined that K.B. was not CAT impaired.

70I agree with Unica that the November 2017 and July 2020 treatment plans are not payable. K.B. did not provide any evidence to establish that these two treatment plans were reasonable and necessary. Apart from this, I have determined that he is not CAT impaired and I find that K.B. is not entitled to the November 2017 and July 2020 treatment plans. I will address the June 5, 2020, treatment plan separately below.

71It is well-settled that to be eligible to receive payment for a treatment and assessment plan under the Schedule, K.B. bears the burden of establishing that the treatment he seeks is reasonable and necessary. To do so, he must 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.

72I find that the treatment plan for the OT assessment of NCCO Rehab (“NCCO”) is reasonable and necessary.

73K.B. submits that NCCO’s assessment is reasonable and necessary in order to make an informed determination regarding K.B.’s level of function as it relates to CAT impairment.

74Unica argues simply that K.B. failed to submit sufficient evidence to discharge his evidentiary onus. Its position is that K.B. did not call any evidence at the Hearing with respect to establishing whether the treatment plans were reasonable and necessary. In the July 9, 2020, denial letter, Unica advised K.B. that the benefit was denied as there are no funds remaining under the medical benefit. The denial letter further noted that there was no new or updated supporting medical documentation to support the decline in functioning, as reported by Ms. Moylan.

75I agree with K.B. On the evidence, given the observations of K.B.’s level of function in the years following the accident, I find that the goals of NCCO’s treatment plan are reasonable and necessary in order for K.B. to seek his own opinion for the purposes of determining the extent of his functional limitations and the appropriate level of treatment. There is no argument whether the goals are reasonable or whether the cost of achieving the goals is reasonable and necessary.

76Section 25(1)(5) provides that an insurer shall pay reasonable fees for preparing an application under s. 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose. On a plain reading of the Schedule, I interpret “for that purpose” to mean an application for CAT impairment under s. 45.

77For the purposes of procedural fairness, the focus should be on ensuring that K.B. is afforded every reasonably-available option to provide Unica with sufficient evidence in support of his claim. It cannot be a situation where an insured is denied funding for an assessment, and the insurer then takes the position that the insured has failed to establish that he suffers from the alleged functional impairments. Otherwise, this is contrary to the consumer protection mandate of the Schedule was established to maintain.

78As such, I find that NCCO’s occupational therapy assessment is a necessary undertaking, as K.B. currently uses a cane, which is an obvious sign of a decline in his functional ability and is therefore reasonable and necessary to determine what the appropriate level of intervention is required.

AWARD PURSUANT TO S.10 OF REGULATION 664.

79Section 10 of Regulation 664 permit the Tribunal to award a lump sum of up to 50% of the amount to which the insured person was entitled at the time of the award together with interest on all amount owing (including unpaid interest) if it finds that the insure has unreasonable withheld or delayed payments.

80K.B.’s grounds for this award claim focuses on the opinion of OT Ms. Au. K.B. submits that in her first report, she found that K.B. suffered a complete inability to carry on a normal life. However, he argues, that in Ms. Au’s second report two years later, she offers little explanation for why she reverses her opinion, concluding that he does not suffer a complete inability to carry on a normal life.

81In response, Unica argues that it did not meet the threshold of behaviour that would warrant an award. It posits that the adjuster representing Unica at the hearing, Ms. Asselin, despite only being recently assigned to the file, was able to confirm that the file was handled reasonably at all times. For example, Ms. Asselin was questioned as to why Unica did not complete additional CAT addendum reports after receiving the reports from Dr. Waisman and Ms. Yegendorf. Ms. Asselin testified that addendum reports were not necessary since there were no treating medical records provided to support K.B.’s CAT impairment reports.

82I agree with Unica. I find that it properly relied on the multidisciplinary reports of its assessors, and that its determination was reasonably based on the opinions of the assessors. Unica overpaid and sought a repayment of a benefit, further supporting that it appropriately and continually adjusted its file. Despite his argument regarding Ms. Au, I find that K.B. has not established that Unica unreasonably withheld or delayed payments of any benefits.

83For these reasons, K.B.’s claim for an award pursuant to s. 10 of Regulation 664 is denied.

CONCLUSION

84K.B. is not catastrophically impaired under s. 3(2)(e) or s. 3(2)(f) of the Schedule.

85K.B. is entitled to NEBs in the amount of $320.00 per week from May 29, 2019, to date and ongoing. Interest is payable in accordance with the Schedule.

86K.B. is not entitled to the ACB and housekeeping home maintenance benefit as he has not established that they are reasonable and necessary. Accordingly, K.B. is not entitled to interest because the benefits are not payable.

87K.B. is not entitled to the November 2017 or July 2020 treatment plans for OT services as he has not established that they are reasonable and necessary. No interest is payable.

88K.B. is entitled to the June 2020 treatment plan for the OT assessment as he has established that it is reasonable and necessary. Interest is payable in accordance with the Schedule.

89I find that an award in this matter is not appropriate as Unica did not unreasonably withhold or delay payment of benefits.

Footnotes

1. 1O. Reg. 34/10.
2. 2Section 2(1.1) 2 of the Schedule requires the definition of CAT under the pre-2016 SABS to be used for accidents that occurred before June 1, 2016. The applicable definition of catastrophic impairment for this pre-June 1, 2016, accident is s.3(2)(f) of the Schedule prior to the June 1, 2016, amendments.
3. 3Ms. Yegendorf OT Report dated August 24, 2020 – Tab 32 – Applicant’s Brief, pg. 2248.
4. 4Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”)
5. 5Ms. Au OT Report dated September 21, 2017 – Applicant’s Brief – Tab 37, pg. 2418.
6. 6Ms. Au OT Report dated April 9, 2019 – Applicant’s Brief – Tab 37, pg. 2446.