Basdeo Ramnarine v. Aviva General Insurance, 2022 CanLII 57363

Basdeo Ramnarine v. Aviva General Insurance, 2022 CanLII 57363

Citation: Ramnarine v. Aviva General Insurance, 2022 ONLAT 20-007108/AABS

Licence Appeal Tribunal File Number: 20-007108/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:

Basdeo Ramnarine

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Basdeo Ramnarine, Applicant

Michael Brill, Counsel

Bianca Zimper, Co-counsel

For the Respondent:

Natasha Vujovic, Adjuster

Suzanne Clarke, Counsel

Laila Khalil, Articling Student

Court Reporter:

Anthony Ng, Victory Verbatim

Heard by Videoconference:

March 7, 8, 9, 10, 11 and 14, 2022

OVERVIEW

1Basdeo Ramnarine (the “applicant”) was involved in an automobile accident on October 6, 2017, and sought benefits from Aviva General Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied certain benefits by the respondent and applied for dispute resolution to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). Specifically, it denied that the applicant’s accident-related impairments met the definition of catastrophic (“CAT”) impairment based on a mental and behavioural disorder under the Schedule. It also denied the applicant’s entitlement to a non earner benefit (NEB) and some OCF-18s for medical benefits and cost of examination expenses. The respondent conducted insurer examinations (“IEs”) and determined that the applicant’s accident-related impairments did not meet the definition of CAT and that he was not entitled to the other benefits claimed.

2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to a six-day videoconference hearing. On behalf of the applicant, I heard the testimony of the applicant, Dr. Bari, family doctor, Dr. Waisman, psychiatrist and Julian Amchislavsky, occupational therapist (“OT”). On behalf of the respondent, I heard the testimony of Dr. Lubbers, psychologist, Hadassah Lebovic, OT and Dr. Mendis, neurologist.

ISSUES IN DISPUTE[^1]

3I have been asked to decide the following issues:

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

2. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from November 6, 2017 to date and ongoing?

3. Is the applicant entitled to $1,400.00 for an attendant care assessment, recommended by All Health Medical Centre (“All Health”) in a treatment plan (OCF-18) submitted on September 20, 2018, and denied on September 24, 2018?

4. Is the applicant entitled to $2,019.33 for a driving reintegration assessment, recommended by All Health in an OCF-18 submitted on September 20, 2018, and denied on October 4, 2018?

5. Is the applicant entitled to $11,638.94 for a chronic pain program, recommended by All Health in an OCF-18 submitted on October 12, 2018, and denied on December 18, 2018?

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

RESULT

4After considering both parties submissions and all of the evidence I find:

1. The applicant has not established that but for the accident he would not have the psychological impairments he puts forth as the basis for his application for a CAT determination. Consequently, I do not find the applicant sustained a CAT impairment as a result of the accident.

2. The applicant is not entitled to payment of the NEB for the time period claimed.

3. The applicant is entitled to $1,400.00 for an attendant care assessment, recommended by All Health in an OCF-18 submitted on September 20, 2018.

4. The applicant is entitled to $2,019.33 for a driving reintegration assessment, recommended by All Health in an OCF-18 submitted on September 20, 2018.

5. The applicant is entitled to $11,638.94 for a chronic pain program, recommended by All Health in an OCF-18 submitted on October 12, 2018.

6. The applicant is entitled to interest on overdue payment of benefits.

PROCEDURAL ISSUE:

Motion to exclude WSIB file

5The applicant brought a motion requesting to exclude the WSIB file from the evidentiary record and argues that it is not relevant to the issues in dispute. He later clarified that he agrees that the medical records relating to the WSIB file are relevant. However, he submits that the decisions rendered by the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) are not relevant to this case. He maintains that the WSIB claim has been an ongoing legal issue for 13 years and there are different legal tests involved for accident benefits. Further, he submits that it is unfair for the Tribunal to consider these decisions as the WSIB case is ongoing and final decisions on appeals have not yet been rendered.

6The respondent argues that the WSIB file, including any WSIAT decisions are relevant to the issues in dispute. It submits that this Tribunal has routinely determined that WSIB and WSIAT evidence are relevant to accident benefit cases. The respondent asserts that the WSIAT decision highlights the applicant’s testimony regarding his pre-accident function and is relevant to the analysis regarding the test for entitlement to NEBs and his activities of daily living and social function for the CAT determination.

7I agree with the respondent and find that both the WSIB file and WSIAT decisions are relevant to the issues in dispute. Although I acknowledge that there are different legal tests involved in WSIAT proceedings, I find these documents relevant to the applicant’s pre-accident health and functional status.

BACKGROUND

8On October 6, 2017, the applicant was involved in an automobile accident, when his vehicle was rear ended while slowing down for a traffic light. Emergency services were called but the applicant declined to be taken to the hospital and drove to a self-reporting collision centre. He followed up with his family doctor who referred him to physiotherapy. He maintains that his pre-existing chronic back pain and psychological condition were exacerbated by the accident. He also submits that he sustained new impairments as he suffers from post-concussive syndrome and his neck and right shoulder pain are new impairments.

9On July 27, 2020, the applicant submitted an application for a CAT determination under section 3(1)(8) of the Schedule (“Criterion 8”) based on a mental and behavioural impairment. These impairments are assessed under Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“Guides”).² Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides sets out the four spheres of functioning and the levels of impairment as represented in the chart below.³

Area or Aspect of Functioning

Class 1: No Impairment

Class 2: Mild Impairment

Class 3: Moderate Impairment

Class 4: Marked Impairment

Class 5: Extreme Impairment

Activities of Daily Living

No impairment is noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some, but not all useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

Social Functioning

Concentration, Persistence and Pace

Adaptation (Deterioration in a work-like setting)

10In order to meet the threshold for a CAT impairment under Criterion 8, an individual must have sustained a marked (class 4) or extreme (class 5) impairment as a result of the accident in three of the four spheres of functioning due to a mental and behavioural disorder.

11The applicant relies on the CAT reports of Mr. Amchislavsky and Dr. Waisman who determined that he suffers a marked impairment in activities of daily living, social functioning and adaptation. The respondent relies on the CAT reports of Ms. Lebovic and Dr. Lubbers, who agree that the applicant sustained a marked impairment in adaptation but opined he suffered at most a moderate impairment in activities of daily living and social functioning. Dr. Lubbers also raised concerns regarding the accident being the cause of the applicant’s impairments.

12This matter is complicated by the fact that the applicant had a significant pre-accident medical history. The respondent argues that the accident did not cause the applicant’s physical or psychological impairments that form the basis for his application for a CAT determination. It maintains that the applicant had serious health issues and functional limitations pre-accident and that the accident was not the cause of the applicant’s current impairments and functional limitations.

13The applicant acknowledges that he had significant pre-accident health issues. However, he asserts that the accident exacerbated these impairments and caused new ones which resulted in a reduction in function. Therefore, before I determine whether or not the applicant meets the threshold for CAT under Criterion 8, I will first address the issue of causation.

ANALYSIS

Did the accident cause the applicant’s impairments?

14I do not find that the accident was a necessary cause of the applicant’s physical and psychological impairments or resulted in the functional limitations which form the basis for his application for a CAT determination.

15It is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident he would not have suffered the impairments which form the basis for his application for CAT status. The court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment but a necessary cause. The court further instructs the decision maker to conduct a robust analysis given the unique circumstances of the case at hand.

16The applicant was involved in a workplace accident (“workplace incident”) on March 12, 2009, in which he slipped off the back of a truck which resulted in a back injury. The applicant attempted to return to work, however, was unsuccessful and has been off work ever since. As a result of the workplace incident, the applicant was diagnosed with Somatic Symptom Disorder with predominant pain, associated with both psychological factors and general medical condition; Major Depressive Disorder, moderate; and mechanical dysfunction of the lumbar spine.

17As a result of the accident, the applicant has been diagnosed with chronic pain syndrome, Somatic Symptom Disorder with predominant pain, persistent, and severe), and a Major Depressive Disorder, moderate, and non-psychotic; and post-traumatic stress disorder, with specific phobia (vehicular anxiety). Doctors have also opined that the accident exacerbated the applicant’s back pain and resulted in new soft-tissue injuries to the applicant’s neck and right shoulder.

18I do not find the diagnoses of Somatic Symptom Disorder or Major Depressive Disorder were caused by the accident as the applicant was diagnosed with these conditions prior. However, I do find that the accident exacerbated the applicant’s chronic back pain and soft tissue impairments to the applicant’s neck and back.

19In order to assess causation, it is important to analyze to what degree any accident-related impairment impacted the applicant’s ability to function. Therefore, a comparison of the applicant’s pre and post-accident activities is required.

20A WSIB function and pain report dated May 10, 2017, completed less than 5 months pre-accident notes the following functional limitations regarding the applicant’s activities of daily living:

a) He has been unable to work since 2009.

b) He is independent with personal hygiene, yet he performs tasks at a slower pace with pain.

c) He has sexual dysfunction.

d) He uses a cane to ambulate, he has a walking tolerance of less than 2 blocks.

e) He is limited in prolonged sitting and standing for longer than 15 to 20 minutes.

f) He is limited in bending, carrying and overhead reaching.

g) He is able to cook but makes easier meals. He relies on his friends to bring him meals on occasion.

h) He is able to drive but is limited to driving 30 to 45 minutes due to pain and he drives less often due to a lack of funds to purchase gas.

i) He sleeps an average of 2 to 3 hours per night due to pain and worry.

j) He goes grocery shopping once a month.

21The same report states the following in relation to the applicant’s psychological and social functioning:

a) He is socially withdrawn and unable to find pleasure in anything.

b) He avoids social interactions with friends out of fear of angry outbursts.

c) He spends most of his time alone sitting in his apartment.

d) He will sometimes listen to music or drive to a mall for a walk.

22The applicant testified that prior to the accident he was doing much better as he was independent with personal care and housekeeping and home maintenance tasks. He was able to cook more elaborate meals such as curry chicken and rice. His sexual function improved as he went to massage parlours for sexual gratification. He enjoyed playing card games with friends, watching cricket, going for walks in the park and went to Temple once a week. He also contends that he was looking into vocational retraining to gain other employment. The applicant testified that following the accident he is seriously limited in all of his daily activities. I am not persuaded by the applicant’s testimony because I find it conflicts with the pre-accident WSIB report and the evidentiary record before me. Further, I find the applicant’s self-reports to assessors about his pre and post-accident functional limitations wholly inconsistent. The following paragraphs provide some examples of the many inconsistencies in the evidence:

23A psychological status report prepared for the WSIB by the Centre for Addiction and Mental Health (CAMH) dated March 12, 2018, completed less than five months post-accident note very similar impairments and limitations in comparison to the 2017 report. The accident is not mentioned at all in this report and notes that the workplace incident is the cause of all of the applicant’s impairments and limitations. Under other contributors it states, “none reported.” The report states that the applicant remains completely disabled to work from a psychological perspective and that he had obtained maximum medical recovery.

24I find the applicant’s self-reports to initial psychological assessors (s. 25 Dr. Langis and N. Zhukova, psychotherapist and s.44 Dr. Nikkhou) who completed assessments three to four months after the above report to be inconsistent with the pre-accident 2017 WSIB report. The applicant reported to the doctors that prior to the accident he slept 4 to 6 hours per night and post-accident he gets only 2-3 hours. This is not consistent with the pre-accident 2017 WSIB report which notes that the applicant obtained only 2-3 hours of sleep per night. Therefore, I conclude that the applicant’s sleep has remained unchanged post-accident.

25The applicant also reported to assessors that post-accident he no longer enjoys watching cricket and soccer or playing dominos and card games with friends. It is important to note that to some assessors he reported that he played cricket and soccer pre-accident. Of significance, the 2017 WSIB report notes that the applicant was socially withdrawn and spent his time sitting in his apartment alone. Therefore, I find the applicant’s self-reports regarding his pre-accident social and recreational activities is unsupported by the evidence. Further, the 2018 post-accident CAMH WSIB report supports that the workplace incident is the only cause of the applicant’s ongoing psychological condition.

26In addition, I find the CAT reports relied upon by the applicant to be either consistent with his pre-accident functioning or wholly inconsistent in how the assessors describe his pre and post-accident health and function. For example, the CAT OT report of Mr. Amchislavsky which took place on November 21, 2019 depicts very similar physical tolerance levels for sitting, standing and walking as noted in the 2017 WSIB report. I also find Mr. Amchislavsky heavily relied on the applicant’s self-reports about his functional limitations regarding his inability to carry out his self care or housekeeping and home maintenance tasks. Other than going for an outing to a grocery store, Mr. Amchislavsky did not observe the applicant carry out these tasks during his assessment. I also agree with the respondent that the focus of the assessment was on the applicant’s physical ability to carry out his activities versus his inability to complete due to a psychological impairment.

27The applicant testified that post-accident he uses a basket instead of a cart to go grocery shopping because he does not have the physical strength to push the cart. Mr. Amchislavksy’s report describes the applicant pushing the grocery cart and leaning on it for balance during the shopping trip. In his report, Mr. Amchislavsky opines that the applicant’s inability to do things is as a result of his accident-related psychological sequalae. I do not find the evidence supports this opinion.

28I also find that Dr. Waisman overly relied on Mr. Amchislavksy’s report in his psychiatric CAT assessment in rendering his opinion that the applicant has a marked impairment in activities of daily living and social functioning. I agree with the respondent that Dr. Waisman’s report provides very little analysis regarding the applicant’s pre-accident psychological status and functioning. Under cross-examination, Dr. Waisman acknowledged that he was not aware that the applicant had the same issues with sleep, was socially isolating or that he had problems with anger management pre-accident. This was despite the fact that the doctor reviewed the pre-accident clinical notes and records (“CNRs”). I agree with the respondent that Dr. Waisman’s CAT report did not adequately address the applicant’s pre-existing psychological issues in his report. For these reasons, I give his report little weight.

29Much was made by the applicant about the fact that Dr. Lubbers provided very little analysis in his psychological CAT IE in justifying his moderate impairment ratings. While I agree with the applicant on this point, Dr. Lubbers opined that it was difficult to distinguish between the applicant’s pre and post-accident functioning due to his presentation as and clinical scale elevations on psychometric tests. Based upon the evidence before me, I agree with Dr. Lubbers that it is difficult to determine to what extent the applicant’s psychological condition deteriorated post-accident or resulted in a reduction in his functional limitations. Ultimately, I do not find Dr. Lubber’s report helpful as he did not address the CAT IE OT report of Ms. Lebovic and did not give any rationale for his impairment ratings. Despite this fact, Dr. Lubber’s opinion was consistent with Dr. Nikkhou’s psychological IE who determined that the applicant psychometric test results showed evidence of exaggeration. I also find that the applicant is not a reliable historian.

30In addition, I find that the applicant was not accurate in describing his pre-accident functional status to Ms. Lebovic. He reported that pre-accident he was social, he played cricket and his life was meaningful. As already highlighted, this is not consistent with the pre-accident 2017 WSIB report. I am also perplexed by the applicant’s functional performance during this assessment as it showed a dramatic change in disability compared to Mr. Amchislavsky’s IE and findings of other assessors. He could not carry out any tasks during Ms. Lebovic’s assessment and had a panic attack during their grocery store outing. I find the applicant’s performance during this assessment inconsistent with the various other reports in the evidentiary record. As a result, I do not find Ms. Lebovic’s report to be an accurate portrayal of the applicant’s functional limitations as a result of the accident.

31The applicant asserts that he had a breakdown on December 21, 2019, and this is evidence that the accident caused a deterioration in his psychological condition. The hospital report from the same date notes that his friend called police because he was intoxicated and hurting himself. The reason for the applicant’s episode was that he was stressed and upset because his rental unit had been sold and he had to move. The applicant was admitted to the hospital under a form 1 for evaluation. Significantly, the report references that the applicant was dealing with ongoing back pain because of a workplace incident. The report goes on to say that the applicant was “of clear and organized thought process. No obvious psychological deficits. He had no intent of self-harm or suicidal ideation.” I do not find this report persuasive evidence that the accident was the cause of the applicant’s psychological deterioration as once again the workplace incident is mentioned in this report – the accident is not.

32I also find the CAT neurological report of Dr. Basile dated November 15, 2019 unhelpful as at times it seems to describe another person. Dr. Basile describes the applicant as physically active with no pre-accident health issues. Dr. Basile’s report notes that other than having a history of diabetes, the applicant’s pre-accident health is unremarkable. Dr. Basile acknowledged the workplace injury but does not discuss any resulting functional limitations. The doctor states that prior to the accident the applicant had no significant complaints of neck pain, back pain, headaches, or concentration or memory issues. This is not consistent with the medical record before me. I also find Dr. Basile’s report inconsistent with Mr. Amchislavsky’s report as it states that post-accident, the applicant is independent in bathing, grooming and dressing and he can drive, do laundry and cook, yet at a slower pace. In my view, this is consistent with the applicant’s pre-accident function.

33Dr. Basile also notes that there was evidence of retrograde and anterograde amnesia and that the applicant has features of post-concussive syndrome. I give Dr. Basile’s opinion little weight as there is no evidence of a head injury or concussion in the supporting medical records. In addition, there was also evidence that the applicant had difficulties with memory and concentration prior to the accident. Further, Dr. Basile’s report contained errors as the report states that the applicant’s ability to take part in childcare and family responsibilities is diminished. This makes little sense as the applicant is single and does not have any children. Dr. Basile was not called to testify to explain these contradictions. Therefore, I give his report and his diagnoses very little weight. For these reasons, I do not find it necessary to get into Dr. Mendis’ neurological CAT IE or his testimony.

34I find the applicant’s self-reports to Dr. Marchuk’s in the CAT physiatry IE assessment equally perplexing as the report dated June 11, 2021 states:

According to the claimant, prior to the index accident, he was physically, socially and recreationally independent with no restrictions in activities of daily living, self-care tasks, household tasks and home maintenance and could handle light (up to 22 pounds) workloads. He states his recreational activities before the index accident included bike riding, walking and playing cards.

35In light of the fact that the applicant walked with a cane and was limited to walking 2 blocks pre-accident, the applicant’s self-reports about his pre-accident function is not reliable. In describing the applicant’s post-accident function, Dr. Marchuk states:

According to the claimant, he is able to complete the following activities independently but with pain present: bathing, grooming, dressing, toileting, walking, climbing stairs, driving, sitting, standing, grocery shopping, meal preparation, cooking, washing dishes, sweeping, vacuuming, bed making, cleaning the bathroom, dusting, garbage removal and washing/drying laundry. He states he is unable to complete the following activities: riding in a vehicle, washing floors, cleaning the oven and cleaning the refrigerator. He states the following activities are not applicable: using public transportation, ironing, sewing, cutting grass, gardening and shoveling snow.

36The descriptions in Dr. Marchuk’s report about the applicant’s pre and post-accident function do not align with the applicant’s testimony or the applicant’s self-reports to other assessors. The applicant also reported to some assessors that he needs to use a cane to ambulate post-accident and no assistive devices were required pre-accident for mobility. The pre-accident 2017 WSIB report does not support this as it states the applicant used a cane prior to the accident.

37I also find the other evidence inconsistent with the applicant’s testimony about his pre and post-accident health and functional limitations. For example, the applicant’s testimony that he was looking for work prior to the accident was contradicted by the WSIAT decision dated April 7, 2021. That decision highlights that at that hearing the applicant testified that he has not been able to work or look for work [emphasis mine] since the 2009 workplace accident.

38Furthermore, a progress report of All Health Medial Centre dated April 12, 2019 states the “patient feels a little better. Trying to restore daily routine…He walks more, he went to play cards with his friends and experienced some joy. He has been able to do more housekeeping tasks.”

39Similarly, a letter from Dr. Chisen, physiatrist to Dr. Bari, family doctor dated April 5, 2019 indicated that his exam “reveals a healthy individual, in no acute physical distress, normal walking base and balance. No assistive devices.” Further, the doctor notes “a 10 to 20% restriction in lumbar movements and no neurological deficits in lower extremities. He has signs of degenerative lower back condition, general nerve conduction were still normal. There is a history of diabetes, but no objective evidence of peripheral neuropathy. He has ongoing low back pain and WISB issues are noted for which he has a lawyer.” Of significance, the accident is not mentioned at all in this report.

40In addition, while the accident is mentioned a few times in Dr. Bari’s CNRs, the WSIB claim is mentioned frequently throughout. Dr. Bari testified that the WSIB claim was referenced because of the applicant’s longstanding legal history. Dr. Bari claims that just because the accident is not referenced does not mean that the applicant’s visits were not accident related. Since causation is at the crux of this dispute, I do not find Dr. Bari’s explanation convincing. Overall, I do not find Dr. Bari’s CNRs or testimony helpful in proving the applicant’s position that the accident was the cause of his current physical and psychological impairments and resulting functional limitations.

41The applicant testified that his neck and shoulder pain are new impairments that were caused by the accident. While the assessor’s reports note that the applicant complained of neck and shoulder pain post-accident, I find the impact of these new impairments to be minimal when compared to his pre-accident functioning.

42For all of the above-noted reasons, the applicant has not met his onus in proving on a balance of probabilities that the accident was a necessary cause of his psychological impairments and resulting limitations. Therefore, he has not satisfied the “but for” test and the test for causation has not been met. Therefore, I find it is not necessary to analyze further whether he sustained a CAT impairment as a result of the accident.

Is the applicant entitled to a non-earner benefit of $185.00 per week from November 6, 2017 to date and ongoing?

43The applicant is not entitled to the NEB for the time-period claimed.

44Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical⁴, which focuses on a comparison of the applicant’s pre-and post-accident activities.

45As already established above, a comparison of the applicant’s pre and post-accident activities of daily living establishes that he was significantly limited in completing his activities of daily living pre-accident. Further, I find that not much has changed post-accident and he has not demonstrated beyond a balance of probabilities that he has a complete inability to carry on a normal life as a result of his accident-related impairments. Consequently, I do not find that the applicant is entitled to NEBs for the time period claimed.

Is the applicant entitled to $11,638.94 for a chronic pain program recommended by All Health in an OCF-18 submitted on October 12, 2018?

46The applicant is entitled to the OCF-18 in the amount of $11,639.94 for a chronic pain program recommended by All Health Medical.

47To receive payment for a treatment and assessment plan under s. 14 and 15 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

48Despite my prompts and reminders neither party spent much time addressing the OCF-18s in dispute.

49In support of his position that the OCF-18 for the chronic pain program is reasonable and necessary the applicant relied on the OCF-18 itself. He also relied on the recommendations of Dr. Waisman and Dr. Bari who opined that the applicant needs a multidisciplinary treatment program to address his chronic pain needs.

50The respondent argues that the OCF-18 is not reasonable and necessary. It relies on the IEs of Dr. Corrin, GP and Dr. Nikkou both dated July 16, 2018 who determined that a chronic pain program is not reasonable and necessary as a result of the accident. It asserts that the applicant suffered from chronic pain pre-accident. Therefore, he is not entitled to the OCF-18 for the chronic pain program. For the following reasons, I agree with the applicant.

51The goal of the OCF-18 prepared by Dr. Robertus, GP identified pain reduction as a goal of treatment in order to return the applicant to his normal activities of daily living. The OCF-18 recommended 29 sessions of physical therapy at a cost of $2,892.75; 19 sessions of chiropractic treatment at a total cost of $2,143.39; 16 sessions of massage at a cost of $931.04 and 16 sessions of mental health therapy at a total cost of $3,590.72. The balance was for assessments, documentation and the applicant’s transportation to treatment. Under the additional comments section was a lengthy breakdown of the applicant pre and post-accident history.

52Despite the fact that I have determined that the accident did not result in significant functional impairments, what I find was consistently reflected in the medical reports is that the applicant’s pre-existing chronic back pain was exacerbated by the accident. I also find that the applicant’s complaints of neck and shoulder pain are new impairments which have persisted. For example, in Dr. Marchuk’s CAT physiatry IE report dated February 5, 2021, the doctor opined that the applicant’s pre-existing chronic back pain was exacerbated and that his right shoulder impairment was caused by the accident. I also find that the applicant’s pre-existing condition of somatic symptom disorder would likely make it more difficult for him to cope with these additional pain complaints. In addition, I find that the applicant was consistent in reporting to assessors that he found past physical and psychological treatment to be beneficial in managing his pain. The case law supports that if treatment results in a reduction in pain than the treatment plan is reasonable and necessary. Consequently, I find the OCF-18 will achieve its goal of pain reduction.

53Neither party made submissions regarding the cost of the OCF-18 being excessive. Therefore, I accept the cost of same to be reasonable. Therefore, I find a multi-disciplinary chronic pain program to be reasonable and necessary.

54Overall, I do not find Dr. Corrin or Dr. Nikkhou’s IEs on this issue helpful. I find that Dr. Corrin’s IE overlooks the fact that the applicant’s chronic back pain was exacerbated by the accident and his complaints about neck and right shoulder pain were new. In addition, Dr. Nikkhou did not consider the impact of the applicant’s pre-existing somatic symptom disorder in addressing the applicant’s ability to cope with the exacerbation of his pain symptoms.

55For the above-noted reasons, I find the applicant is entitled to the OCF-18 in the amount of $11,638.94 for a chronic pain program to be reasonable and necessary.

Is the applicant entitled to $1,400.00 for an attendant care assessment, recommended by All Health in an OCF-18 submitted on September 20, 2018?

56The applicant is entitled to the OCF-18 in the amount of $1,400.00 for the attendant care assessment.

57The OCF-18 prepared by Dr. Robertus, GP recommended an attendant care assessment at a total cost of $1,400.00. Under activity limitations the OCF-18 notes that the applicant had difficulty with prolonged sitting, standing, walking, squatting, kneeling and pushing and pulling with overhead activity. Further, these functional limitations interfere with domestic chores and the applicant’s ability to carry out personal care tasks. The goal of the OCF-18 was to determine whether the applicant requires assistance in carrying out his personal care and activities of daily living.

58In support of his position that the OCF-18 is reasonable and necessary, the applicant relies on the OCF-18 itself, and the occupational therapy reports of both s. 25 and s. 44 assessors who have assessed him throughout his claim.

59While the respondent acknowledges that the applicant has functional limitations. It maintains that these limitations existed pre-accident. The respondent relies on the IE assessment of Dr. Corrin dated July 16, 2018 and OT assessment of Sara Lee dated June 29, 2018. Dr. Corrin diagnosed the applicant with cervical sprain, lumbar sprain and soft tissue injuries to the right shoulder. The doctor determined that the OCF-18 recommending the attendant care assessment was not reasonable and necessary as a result of the applicant’s accident-related impairments. For the following reasons, I agree with the applicant.

60As a starting point, I find the OT IE report of Ms. Lee supports that the applicant had some limitations with self-care and carrying out heavier activities of daily living as a result of his right arm impairment. While I do not find this impairment and resulting limitations meet the causation test for a CAT determination, I do find that having the applicant assessed to determine to what degree his accident-related impairments were interfering with his ability to carry out his personal care tasks was a reasonable request. For example, in Ms. Lee’s report she notes that the applicant is right- handed and was experiencing difficulty with shaving, nail care and some hygiene tasks. Further, Ms. Lee’s physical testing showed that the applicant had reduced range of motion in his neck/cervical spine and right shoulder. As already established, I find that these impairments are as a result of the accident. Since the respondent’s own OT assessor determined that the applicant had reduced range of motion in his neck and right shoulder, I find an attendant care assessment to be reasonable and necessary to investigate to what degree the applicant required attendant care, if any, as a result of these impairments.

61As already indicated above, I find Dr. Corin’s assessment downplayed the applicant’s pre-existing chronic pain condition in rendering his opinion in relation to the chronic pain program and his entitlement to the attendant care assessment.

62The applicant has met his onus in proving on a balance of probabilities that the attendant care assessment in the amount of $1,400.00 is reasonable and necessary as a result of his accident-related impairments.

Is the applicant entitled to $2,019.33 for a driving reintegration assessment, recommended by All Health in an OCF-18submitted on September 20, 2018?

63I find the applicant is entitled to the OCF-18 in the amount of $2,019.33 for the driving reintegration assessment recommended by All Health.

64The applicant argues that the OCF-18 for a driving reintegration assessment is reasonable and necessary because he suffers from ongoing driving and passenger anxiety as a result of the accident. In support of his position that he requires the OCF-18 the applicant relies on the psychological IE of Dr. Langis, psychologist and Natalia Zhukova, psychotherapist dated August 30, 2018

65The respondent argues that the OCF-18 is not reasonable and necessary. It submits that the applicant barely drove prior to the accident. Further, it maintains that the applicant does not have driving or passenger anxiety post-accident as he continues to drive to his Dr. Bari’s office as well as to his dentist and eye doctor’s appointments which is a 20 km drive from his house. In addition, it asserts that the applicant does not require a driving evaluation because he reported to Dr. Nikkhou that although he is nervous while driving post-accident he can drive safely and he does not need counselling. For the following reasons, I agree with the applicant.

66Although I find the applicant to be inconsistent in his reporting about his pre and post-accident functional limitations, one thing I find the applicant was consistent with was that he reported to almost every assessor he has seen post-accident that he has anxiety when driving or being a passenger in a vehicle. During both OT CAT assessments, the applicant showed visible signs of anxiety when driving with the assessors on their grocery store outings. Therefore, I find the driving reintegration assessment to be reasonable and necessary in order to investigate whether the applicant requires treatment in regard to his driving and passenger anxiety.

67I do not find the respondent’s argument that the applicant was limited in his driving pre-accident persuasive. Although he did not drive often pre-accident, there was no evidence that he had driving or passenger anxiety prior to the accident. Further, I do not find the fact that the applicant continues to drive post-accident supports that he does not have driving or passenger anxiety and does not require treatment to address same.

68The applicant has met his onus in proving on a balance of probabilities that the OCF-18 for the driving reintegration assessment in the amount of $2,019.33 is reasonable and necessary as a result of his accident-related impairments.

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

69The applicant is entitled to interest on the three OCF-18s recommended by All Health for the chronic pain program, attendant care assessment and driving reintegration evaluation recommended by All Health.

70Section 51 (1) states that an amount payable in respect of a benefit is overdue if the insurer fails to pay a benefit within the time required under this regulation. Since I have determined that all three OCF-18s are reasonable and necessary, I find the applicant is entitled to interest.

ORDER

71For all of the above-noted reasons, I find:

1. The applicant has not established that but for the accident he would not have the psychological impairments he puts forth as the basis for his application for a CAT determination. I do not find the applicant sustained a CAT impairment as a result of the accident.

2. The applicant is not entitled to payment of the NEB for the time period claimed.

3. The applicant is entitled to $1,400.00 for an attendant care assessment, recommended by All Health in an OCF-18 submitted on September 20, 2018.

4. The applicant is entitled to $2,019.33 for a driving reintegration assessment, recommended by All Health in an OCF-18 submitted on September 20, 2018.

5. The applicant is entitled to $11,638.94 for a chronic pain program, recommended by All Health in an OCF-18 submitted on October 12, 2018.

6. The applicant is entitled to interest on overdue payment of benefits.

Footnotes

1. 2American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, Ch.14.7: Mental and Behavioural Disorders.
2. 3Ibid, pg. 301, Table 1
3. 4Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (CanLll) at para.50.
4. 1The applicant withdrew issues 3, 6, 7, 8 and 9 as listed on the Tribunal’s case conference report and order dated February 11, 2021.