Citation: Handy v Aviva Insurance Company of Canada, 2022 ONLAT 20-006124/AABS - A

Licence Appeal Tribunal File Number: 20-006124/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:

Lyndon Handy

Applicant

and

Aviva Insurance Company of Canada

Respondent

AMENDED DECISION

ADJUDICATOR:

Deborah Neilson

APPEARANCES:

For the Applicant:

Lyndon Handy, Applicant

Ashu Ismail, Counsel

Peter Murray, Counsel

Eric Winkworth, Counsel

For the Respondent:

Beth Thomson and Lynn Highly, Claims Representatives

Danielle Wilkinson, Counsel

Mohamed Hashim, Counsel

Christine McKenna, Counsel

Court Reporters:

Alison Minors, Doug Inglis, Thomas Dellinger and Graeme Peto of Victory Verbatim

Heard by Videoconference:

November 15 to 26, 2021 and January 31 to February 7, 2022

REASONS FOR DECISION

BACKGROUND

1The applicant is an electrical engineer who was employed as a principal service architect for Hitachi when he was involved in an automobile accident on August 31, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant claimed he sustained a catastrophic impairment and is entitled to attendant care benefits, the cost of examinations and medical and rehabilitation benefits. He claimed he developed chronic pain from the soft tissue injuries he sustained in the accident and that the accident exacerbated his asymptomatic degenerative disc disease and knee osteoarthritis. The respondent denied the applicant sustained a catastrophic impairment and submitted that his present health condition was caused by an unrelated event that occurred in 2017. The respondent claimed that the applicant had pre-existing conditions that would have led to his present condition regardless of the accident.

3I find that based on the evidence and testimony, although the accident has had a profound effect on the applicant’s life, he did not sustain a catastrophic impairment. Accordingly, he is not entitled to attendant care benefits beyond August 31, 2018 and, as he has exhausted his policy limits for medical and rehabilitation benefits, the remainder of his claim is dismissed.

PROCEDURAL ISSUES

4The following procedural issues arose during the hearing:

a. Whether the applicant may add the issue of punitive damages for bad faith;

b. Whether the respondent may add the issue of its entitlement to costs for the applicant’s motion for contempt and to file the report of Dr. Baird;

c. Whether the surveillance evidence ought to be excluded;

d. Whether a health practitioner whose acknowledgement of expert’s duty form was not filed could be qualified as an expert;

A. Adding Issues

5The applicant advised the Tribunal on October 12, 2021 that he was seeking to add the issue of punitive damages for bad faith to the issues in the hearing. The respondent brought a motion on October 15, 2021 to address a number of matters. No motion was brought by the applicant to add the issue at that time. The issue is not added as the applicant failed to add the issue in a timely manner.

6Mid-hearing, after the applicant filed a motion to note the respondent in contempt and to file a report from Dr. Baird, chiropractor, the respondent asked that the issue of whether it is entitled to its costs of the motion be added. LAT Rule 19.2 allows a party at any time before a final order or decision is released to ask for costs.¹ In my decision on the motion I stated that I would hear submissions on costs from the parties at the conclusion of the hearing. At the end of the hearing the applicant also advised that he was seeking his costs. Accordingly, the issue of costs is added as an issue I must determine.

B. Excluding Surveillance

7Dr. David Direnfeld, psychologist, was produced by the respondent for cross-examination. The applicant asked him a number of questions about surveillance evidence that he reviewed with the applicant and then objected when the respondent asked that the surveillance be made an exhibit. Despite asking numerous questions of Dr. Direnfeld about the surveillance, the applicant submitted that the respondent never put the surveillance to the applicant and therefore, to admit it would violate the rule in Brown v. Dunn.²

8However, even where the rule in Browne v. Dunn applies, an adjudicator has a discretion to allow the introduction of the impugned evidence, subject to providing the opposite party with an opportunity to call reply evidence.³ In this case, the respondent could not anticipate during the cross-examination of the applicant that the applicant would be asking Dr. Direnfeld about the surveillance. The applicant knew the respondent included the surveillance evidence in its brief filed with the Tribunal. Accordingly I allowed the evidence together with an opportunity for the applicant to provide reply evidence. The applicant declined to do so.

C. Expertise of an Occupational Therapist

9The respondent sought to have an occupational therapist, Joan Saunders, declared an expert in occupational therapy and in the AMA Guides.⁴ I declined both for the following reasons. The applicant objected on the basis Ms. Saunders did not provide an opinion. The respondent counter-objected on the basis the applicant failed to provide notice that it was challenging the credentials of Ms. Saunders. However, the respondent did not serve the applicant with an acknowledgement of expert’s duty necessary for calling an expert to testify. Accordingly, the applicant had no notice the respondent intended to call Ms. Saunders as an expert. Therefore, the applicant was well within his rights to object when the respondent tendered Ms. Saunders as an expert without serving the proper notice. I, therefore, declined to accept her as an expert in occupational therapy and the AMA Guides.

10I accepted Ms. Saunders as a participant expert in occupational therapy over the objection of the applicant. He submitted that he did not have any clinical notes and records from Ms. Saunders that would have acted as a summary of her anticipated evidence. I found there was no prejudice to the applicant because he had Ms. Saunders’ report, which was a more than ample summary of her testimony.

ISSUES

11The issues I must determine are as follows:

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

2. Is the applicant entitled to an attendant care benefit in the amount of $493.54 per month for the period December 13, 2019 to date and ongoing?

3. Is the applicant entitled to $8,495.00 for rehabilitation support worker services and pool fees recommended by Matthew Rose, occupational therapist, in a treatment plan dated December 20, 2019 denied by the respondent March 2, 2020?

4. Is the applicant entitled to $2,700.00 for the cost of a home accessibility assessment recommended by Matthew Rose in a treatment plan (OCF-18) dated January 24, 2020, submitted on January 25, 2020, denied by the respondent March 2, 2020?

5. Is the applicant entitled to a medical benefit in the amount of $10,027.60 for a chronic pain program recommended by Dr. Kachooie in an OCF-18 treatment plan dated June 22, 2020 , denied by the respondent July 20, 2020?

6. Is the applicant entitled to a medical benefit in the amount of $3,818.00 for chiropractic services recommended by Dr. Fujimagari in a treatment plan (OCF-18) dated June 11, 2020, submitted on June 11, 2020, denied by the respondent July 20, 2020?

7. Is the applicant entitled to a medical benefit in the amount of $3,966.48 for psychotherapy services recommended by Dr. Eric Seltzer dated June 5, 2020, submitted on July 15, 2020, denied by the respondent July 20, 2020?

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

9. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

10. Is either the applicant or the respondent entitled to costs because the opposing party’s conduct or course of conduct has been unreasonable, frivolous or vexatious or the party has acted in bad faith?

ANALYSIS

A. Catastrophic Impairment

12The applicant submitted that he sustained a catastrophic impairment because he suffered a whole person impairment (“WPI”) of 55% or more from the combined score of his mental or behavioural impairment with his physical impairments.⁵ He relied on the opinions and testimony of the assessors from Omega Medical Associates. I heard the testimony of Dr. Lisa Becker, physiatrist; Dr. Eugene Chang, physiatrist; Dr. Tajedin Getahun, orthopaedic surgeon; Dr. Giselle Braganza, psychologist; and Kitty Shum, occupational therapist (“OT”), all from Omega Medical Associates.

13The respondent disagreed and relied on the opinions of its assessors who conducted insurer’s examinations (“IEs”) of the applicant: Dr. Direnfeld, psychologist; Dr. Kurzman, neuropsychologist; Dr. Sekyi-Otu, orthopaedic specialist; Dr. Sivasubramanian, psychiatrist; Dr. Dessouki, orthopaedic specialist, and Joan Saunders, OT.

14The WPI % from the IE assessors are as follows when compared to the Omega assessors:

	Applicant’s Assessors	Respondent’s Assessors
Cervicothoracic spine impairment	DRE II= 5% WPI	DRE I = 0% WPI
Lumbosacral spine impairment	DRE III = 10% WPI	DRE 1= 0% WPI
Upper extremity	0%	0% WPI
Lower extremity	20% WPI (gait derangement)	0% WPI
Sleep disturbance	rated at 1-9% WPI	Not rated
Headaches	rated at 3% WPI	Not rated
Medications	3% WPI	3% WPI
Mental status impairment	Mental status impairment rated at 1% to 14% WPI	1% WPI
Mental Behavioural	10% WPI	5% WPI
total	44%WPI to 55%WPI	9% WPI

15Dr. Lisa Becker added up the impairment ratings for Omega Medical using the highest ratings where a range was provided. Her report is silent on why.⁶

16The WPI percentages disputed the most by the parties are for the applicant’s gait derangement, mental status impairment and spine. The applicant submitted that little weight should be given to the respondent’s IE reports because none of the assessors provided a WPI% rating for pain. The AMA Guides do not provide a WPI% rating for pain because it is already included in the ratings for the various organ systems. Chronic pain is assessed under chapter 15 of the AMA Guides.⁷ The AMA Guides state that chronic pain and pain related behaviour are not, per se, impairments, but should trigger assessments with regard to the ability to function and carry out activities of daily living.⁸ The evaluation of chronic pain requires an assessment of a person’s functional capacity – the person’s ability to carry out the activities necessary for daily living. In some instances, a WPI% rating applicable to the patient's pain may be determined, if the condition causing the pain can itself be evaluated according to the criteria applicable to a particular organ system. The applicant submitted that under s.3.1(5) of the Schedule, chronic pain should be additional to the pain already included in the assessment of a particular organ system. I find that even if I accept this submission, the applicant has not proven that he sustained a catastrophic impairment.

17The applicant submitted that little weight should be given to any of the respondent’s IE assessors because they did not account for the applicant’s diagnosis of chronic pain and they were all retained by CanAssess, a clinic retained by the respondent to schedule and organise the IEs. The applicant submitted that all of the reports of the IE assessors are tainted because of their association with CanAssess. For example, Dr. David Direnfeld, a psychologist who conducted an IE assessment of the applicant on October 19, 2018, wrote a letter in reply to a letter written to the respondent by the applicant’s counsel that CanAssess put on its letterhead. The applicant submitted that by doing so, CanAssess disclosed too close a relationship with the respondent instead of being independent. I find little turns on whose letterhead Dr. Direnfeld’s response came from. The applicant also submitted that because no draft reports were kept by Dr. Direnfeld, his report should be completely disregarded.

18I did not give much weight to Dr. Direnfeld’s opinion, but that was because of the timing of it. It took place well before Dr. Braganza conducted her assessment of the applicant and before the applicant applied for catastrophic impairment determination.

19The applicant submitted that Dr. Velan Sivasubramanian’s opinion should be disregarded because he knew the College of Physicians and Surgeons of Ontario required medical legal assessors to keep their clinical notes until the case is resolved, and he failed to do so. Dr. Sivasubramanian testified that the College’s mandate came into place in June 2021. Based on his testimony, I find that he destroyed his notes before the mandate came into place and at a time that he would have no longer thought it necessary to keep them. The applicant submitted that because the IE assessors did not keep drafts for their reports, we have no idea of what changed. I do not find that the respondent had any advantage from Dr. Sivasubramanian’s destruction of his notes or draft reports. He testified that any changes to his report were not changes to his opinion, and he was able to identify what part of the report was inserted by the staff at CanAssess.

20The applicant submitted that I should give no weight to Dr. Sekyi-Otu’s report because he was paid $3,500.00 for doing an IE assessment, which exceeds the maximum an insurer is allowed to pay under s.25(5)(a) of the Schedule. However, although Dr. Sekyi-Otu conducted one assessment, he prepared two reports; the first was his orthopaedic assessment report and his second was an executive summary. Accordingly, I am unable to accept this as a reason to give little weight to Dr. Sekyi-Otu’s report. The applicant also submitted that Dr. Sekyi-Otu took nine months for his report to be released and that, for this reason, I should also give it little weight. However, the delay was for the applicant to attend the occupational therapy assessment and goes to the issue of a Reg.664 award and not to the weight to be given to Dr. Sekyi-Otu’s report.

21Even if I accepted the applicant’s submissions with respect to the weight to give to Dr. Sekyi-Otu’s and Dr. Sivasubramanian’s evidence, it would make no difference to my conclusion that the applicant did not sustain a catastrophic impairment because I find that the applicant sustained a 1% WPI mental status impairment for the nervous system.

1. Gait Derangement

22The applicant relied on Dr. Getahun’s rating of a 20% WPI for gait derangement because of the applicant’s right knee complaints and Dr. Getahun’s alternative rating of 20% for future knee surgery. The respondent submitted that the applicant’s knee complaints were not related to the accident.

23The applicant was referred to Dr. Alireza Kachooie, a physiatrist, by his family doctor in January 2017. Their first appointment was on April 20, 2017. Dr. Kachooie diagnosed the applicant with AC degenerative joint disease and a medial meniscal tear.⁹ Dr. Kachooie reported on March 29, 2021 that the applicant was using a knee brace.¹⁰ However, no other physician recorded the use of a knee brace. Dr. Kachooie reported that the applicant functionally used a cane to walk any distance.¹¹ He testified that this means the applicant does not require a cane in his house and only needs it if he is out walking more that 15 to 20 minutes or standing for more than 15 to 20 minutes.

24Dr. Sekyi-Otu said that it was not appropriate to assign a WPI % based on what may happen in the future. This is exactly what Dr. Getahun did despite his agreement with Dr. Sekyi-Otu that it was not appropriate to do so. Dr. Getahun testified that he applied future ratings because Dr. Harold Becker had encouraged him to do so. Dr. Getahun assigned a 20% WPI to the right knee on a diagnosis based estimate for a future total knee replacement. Given that both orthopaedic specialists agree that future surgery is not to be considered in rating a WPI, I am unable to rely on Dr. Getahun’s diagnosis estimate for future surgery.

25Also at issue is when the applicant’s knee problems started. Dr. Dessouki, an orthopaedic specialist who conducted an IE of the applicant in October 2018, diagnosed the applicant with right knee strain, cervical strain, left shoulder strain, and lumbosacral strain as a result of the accident. When asked if he sustained an impairment as a direct result of the accident, Dr. Dessouki stated there was no objective evidence of a musculoskeletal impairment or a residual impairment. He testified that the applicant had a cleavage tear of his meniscus. It is a partial tear that is caused by trauma or degeneration and takes years to develop. The applicant submitted that little weight should be given to Dr. Dessouki’s opinion because he did not rule out chronic pain as a cause of the applicant’s impairment. I do not find that because Dr. Dessouki did not address what impairments the applicant’s chronic pain caused that I should ignore or give little weight to his diagnosis.

26Dr. Dessouki and Dr. Getahun both agreed that the applicant’s meniscus tear was degenerative. Dr. Dessouki was unresponsive to the question of whether the accident exacerbated or aggravated the degeneration in the knee. Dr. Getahun’s opinion was that the accident did not cause the tear. However, the applicant had asymptomatic pre-existing osteoarthritis of the right knee that was aggravated by the accident when he sustained either a sprain, contusion or axial load injury, causing the applicant’s pre-existing knee issues to become symptomatic. His opinion was that the applicant’s pain altered gait was restricted and flows from the accident.

27The respondent submitted that because the first knee complaint recorded was on November 2, 2016, that the applicant could not have injured his right knee in the accident. The respondent submitted that the applicant has knee pain because of his pre-existing osteoarthritis. The accident could not have caused the pre-existing knee osteoarthritis to become symptomatic because the first symptoms were not recorded until three months post-accident. I note that the applicant advised his treating orthopaedic surgeon, Dr. Jose Guerra, that he had right knee pain for five years, but that it weas exacerbated by the accident.¹²

28Dr. Sekyi-Otu conducted an IE of the applicant but was called to testify on behalf of the applicant. His opinion was that the applicant’s knee pain was referred knee pain caused by hip osteoarthritis that developed prior to the accident. This is supported by Dr. Kachooie’s finding on examination of the applicant that he has hip issues.

29Dr. Sekyi-Otu testified that the applicant’s meniscal tear was not caused by the accident. He testified that, because there was no sign of the applicant having an injury shortly after the accident, it did not cause the meniscal tear. The tear was more likely caused by osteoarthritis and the applicant being overweight. Dr. Sekyi-Otu testified that the first knee complaints did not appear until November 18, 2016. This is to be contrasted with Dr. Kachooie’s evidence that the applicant must have damaged his knee on the dashboard and did not know it.

30Dr. Kachooie testified that normally there would be some bruising, swelling or a scratch if the applicant struck his knee. However, he also testified that there could also be no signs of injury despite striking his knees and that, over time such as four months, a meniscal tear could develop. Dr. Sekyi-Otu testified that arthritis caused by injury takes about two, three to five years to develop. The shortest time, such as a fracture to the hip, could take 18 months. Dr. Sekyi-Otu testified that a jolt to the knee would not be enough to cause arthritis or a meniscal tear without structural damage. He testified that the types of injuries that cause or accelerate arthritis or accident osteoarthritis are tears, non-union of fractures, or malunion of fractures. A contusion injury to a knee would not cause arthritis or a meniscal tear. This is contrary to Dr. Kachooie’s evidence.

31The first recognizable record of the applicant having knee complaints is on October 22, 2016, when he complained of knee and hip pain.¹³ The applicant told his family physician, Dr. Medina, on November 8, 2016, that he started to experience right knee and hip pain two weeks earlier when he stopped taking pain medication. These records are consistent with the applicant’s testimony that he did not notice knee pain initially because of his neck, shoulder complaints and headaches.

32I find that the applicant’s testimony that he was active pre-accident and has had to give up his involvement in a car club, both as an executive and in the many activities the club hosted, was corroborated by his family members who testified, his wife and daughter, and the statements of his friends and co-workers that were filed.¹⁴ I agree with the applicant’s submission that the applicant’s and his wife’s testimonies were uncontroverted, and his daughter’s testimony was not seriously challenged. The medical records also support most of the applicant’s testimony. I also find that the applicant’s OHIP summary supports his testimony that he had no significant health issues pre-accident. His only treatment from August 31, 2013 until the accident was in April 2016 for ear complaints. I find that the applicant was credible and a good historian.

33I find as a matter of fact that the applicant’s asymptomatic knee issues became worse as a result of the accident, and that they were initially masked by the pain medication the applicant was taking for his other complaints.

34Dr. Getahun testified that he applied a gait derangement of 20% WPI because the applicant did not use his cane for distance, but for outside of the home for short trips such as to appointments. However, a number of assessors such as Ms. Shum, OT, did not report that the applicant attended their offices with a cane.¹⁵ Dr. Chang testified that the applicant did not use a cane when he attended his assessment. The applicant testified that he does not use a cane in his home, but for walking outside, particularly on uneven ground. Accordingly, the evidence of the applicant’s use of his cane and Dr. Getahun’s reasons for assigning a 20% gait impairment are not in accordance with the AMA Guides.

35The respondent submitted that the applicant uses his cane for his back complaints, not his knee complaints, and therefore the WPI% for gait impairment cannot be applied. However, when the applicant was asked to choose between back, balance or knee for why he required a cane, he has advised it is for his knees.¹⁶ He told Dr. Chang, physiatrist, that he uses a cane intermittently for balance and light headedness. ¹⁷

36Chapter 3.2b of the AMA Guides states that the gait derangement percentages in table 36 are stand alone assessments and should not be used to combine with other lower extremity impairment percentages. Whenever possible the more specific methods of those other parts should be used in estimating impairments. Gait derangement does not apply to abnormalities based only on subjective factors, such as pain or sudden giving-way, as with, for example, a patient with low-back discomfort who chooses to use a cane to ease walking.¹⁸

37Based on the evidence and testimony, I find that the applicant did not always use his cane when he was out of the house. Nor does it appear he always used it because of gait problems. The applicant told Dr. Braganza that he uses a cane for mobility and only uses a walker when his symptoms are significant. ¹⁹ However, giving the applicant the benefit of the doubt, I accept Dr. Getahun’s assessment of a 20% gait derangement over Dr. Sekyi-Otu’s assessment of no knee injury. Whether the applicant’s knee pain is referred pain from his hips or from the cleavage tear, he did not have any knee issues prior to the accident that impaired his gait, and he does now. Therefore, I find that, but for the accident, the applicant would not have suffered his knee issues. A 15% WPI rating for gait derangement under Table 36 of the AMA Guides is for a patient who requires part-time use of a cane or crutch for distance walking but not usually at home or in the workplace. For a 20% WPI gait derangement, the applicant would have to require the routine use of a cane, crutch or long leg brace. I find that he has a 15% WPI because he does not use a cane in the house or routinely.

2. Spine Ratings

38Dr. Chang assigned a 10% WPI for the applicant’s spine based on Table 72 on page 3/110 of the AMA Guides. A 10%WPI rating requires the presence of radiculopathy. Dr. Sekyi-Otu did not assign anything because there were no signs of radiculopathy when he examined the applicant. Dr. Sekyi-Otu reported that the back pain may be referred pain from the applicant’s hips.

39The respondent submitted that the applicant’s low back complaints were not caused by the accident, but by an intervening event. The respondent submitted that the first complaint of back pain was on January 3, 2017. The applicant’s physiotherapist provided him with low back exercises to perform at home. The applicant then complained of low back pain after doing the exercises. He then had a fall in his stairwell and after trying to put socks on, plus he collapsed on his driveway due to his low back pain. The respondent submitted that the low back exercises were completely unrelated to the applicant’s accident injuries because he did not complain of back issues to the myriad of treatment providers and health professionals that he saw prior to the January 3, 2017 complaint of low back pain.

40The applicant submitted that he had low back pain but that it was masked by his other complaints of neck and shoulder pain and the pain medication he was taking for that. The applicant first saw his family physician, Dr. Medina, almost two weeks post-accident, at which time he complained of headache, neck pain and dizziness. Dr. Medina specifically noted that the applicant had no other complaints.²⁰ Despite the respondent’s submissions, I find that but for the accident, the applicant would not have the back complaints he has today for the following reasons.

41Dr. Dessouki diagnosed the applicant with low back strain as a result of the accident.

42The applicant was prescribed Toradol at the hospital and was continued on Vimovo, which contains Naproxen, by Dr. Medina.²¹ I find that the explanation of back pain masked by the pain killers is a reasonable explanation for why the applicant did not have complaints of pain to his back within the two month period following the accident.

43Dr. Sekyi-Otu reported that the applicant did not have any radiculopathy when he examined the applicant. However, Dr. Chang found that EMG studies pointed to radiculopathy, despite no finding of leg weakness. He testified that the applicant has some degenerative disc disease from wear and tear that pre-dated the accident that made the applicant more vulnerable to a pinched nerve after engaging in physiotherapy and new types of movement. Dr. Chang also testified that the applicant complained of generalized pain, which changed the way he walked and moved. Dr. Chang testified that, for these reasons, along with the applicant’s lack of core strength, that his back complaints were connected to the accident.

44The respondent submitted that I should give little weight to Dr. Chang’s opinion because he did not know when the applicant’s back pain complaints started, and the EMG results could not show the nerve damage predated the accident. Dr. Kachooie testified that the applicant sustained polyphasic nerve damage that occurred four to six months before his EMG study that was conducted in April 2017. The respondent submitted that this meant the applicant’s back injury occurred as a result of a fall down some stairs on January 7, 2017.

45Regardless of his knowledge of when the complaints started, it did not affect Dr. Chang’s opinion of how the applicant’s back complaints are connected to the accident. I accept Dr. Chang’s opinion because it was corroborated by Dr. Sekyi-Otu’s testimony. Dr. Sekyi-Otu testified that there was a 40% to 50% chance the motor vehicle accident contributed to his back complaints. I find that 40% to 50% contribution is more than a de minimis amount. I am persuaded by the applicant’s submission that, while he may have had pre-existing degenerative disc disease of the spine, it was asymptomatic, and the accident and subsequent therapy caused it to become symptomatic. In other words, but for the accident, the applicant would not have had the incident with his socks or the stairwell. Therefore, I accept Dr. Chang’s 10% WPI rating for the spine.

3. Traumatic Brain Injury or Mental Status

46Dr. Chang, physiatrist, assigned a 1% to 14%WPI for mental status impairment based on a first tier impairment under table 2 in chapter 4 of the AMA Guides. He assigned the 1% to 14% WPI because the applicant had a brief period of amnesia for how he got out of his car after the accident and had some cognitive complaints. Although the applicant scored normal on the Montreal Cognitive Assessment, Dr. Chang testified that would not necessarily mean that he did not have functional impairments as a result of a traumatic brain injury (“TBI”). Dr. Chang reported and testified that a neuropsychological assessment would be of assistance in clarifying the degree of impairment.

47Dr. Kurzman, neuropsychologist, conducted an IE assessment of the applicant and determined that the applicant had some cognitive deficits that were not from a brain injury, but were due to pain and/or psychological difficulties. Despite the applicant having no cognitive deficits from a TBI, Dr. Kurzman assigned a 1% WPI for the applicant’s TBI.

48Dr. Chang essentially deferred to Dr. Kurzman by recommending a neuropsychological assessment to narrow down the mental status impairment. Further, Dr. Chang testified that his opinion was the applicant had a possible concussion. A “possible” concussion does not meet the onus of proof. The applicant is required to prove his injuries on a balance of probabilities. Assigning a WPI% rating for a possible injury does not meet that onus.

49The applicant questioned Dr. Kurzman on why he did not provide any explanation of how his assignment of 1% WPI was contrary to Dr. Chang’s and Omega Medical’s assignment of 1 to 14% WPI. Dr. Kurzman testified that he did not think these were contrary findings. His was just a narrowing of the range provided by Dr. Chang. I agree, especially in light of Dr. Chang’s failure to provide a single rating, which Dr. Chang attributed to a lack of direction from the AMA Guides.

50Dr. Becker also testified that the AMA Guides do not provide guidance for when there is a range of ratings, but otherwise say that the highest rate is to be chosen. She did not point out where in the AMA Guides that is stated. She testified that she chose the highest rate in a range in her executive summary because a range represents a fluctuating impairment. Again, she did not advise where in the AMA Guides it states that ranges of rates represent fluctuating impairment.

51Providing a range of WPI percentages does not assist me in determining whether the applicant has a catastrophic impairment. It ignores the many instructions in the AMA Guides that repeatedly emphasise that clinical observation, training, judgment, experience, skill, and thoroughness of evaluation should be used to derive as precise a rating for an impairment as possible.²² This contradicts both Dr. Becker’s and Dr. Chang’s testimony that the AMA Guides provide no guidance for what to do with a range of rates. Accordingly, I do not accept Dr. Becker’s explanation or reasons for choosing the highest rate without explanation when a range is given.

52Dr. Kurzman testified that his assessment findings were, for the most part, consistent with the applicant’s cognitive complaints. The applicant’s family testified that he obsessed over items not being placed where they are supposed to or being done in a manner in which he would have done them. Dr. Kurzman testified that if someone had a perfectionist personality, they may have obsessive compulsive tendencies and that a TBI could make those worse to the point that it impacts on their cognitive function. However, there was nothing in the testing to suggest the applicant had those perfectionist tendencies. Dr. Kurzman also testified that his determination that the applicant had divided attention could cause him to have a difficult time watching television when other people in the room are talking, This is consistent with the testimony of the applicant’s family members.

53I find that Dr. Kurzman provided a rationale for his rating that was cohesive and corroborated by other evidence. Dr. Becker gave no reasonable explanation for choosing the top of the range of Dr. Chang’s 1% to 14% rating. Accordingly, I accept Dr. Kurzman’s assessment of a 1% WPI is the most accurate impairment rating, especially in light of Dr. Chang’s deference to a neuropsychological impairment and his provision of only a range of impairment.

4. Headaches

54The respondent’s assessors did not assign anything for his ocular migraine headaches or sleep issues and did not provide any comment or critique on these areas. Dr. Kurzman advised that the applicant’s migraine headaches could be caused by a TBI, but he was not qualified to make that determination. Therefore, Dr. Kurzman did not include any measure for them in his WPI% ratings for TBI. He testified that they should be assessed by a neurologist.

55Dr. Chang, as a physiatrist, is qualified to assess the applicant’s migraine headaches and he assigned a 3% WPI. Dr. Chang stated that there was no specific rating for headaches in the AMA Guides but referred back to the applicant sustaining a TBI.

56Headache pain is discussed in chapter 15 of the AMA Guides, which states that in some instances, an impairment percent applicable to the patient's pain may be determined if the condition causing the pain can itself be evaluated according to the criteria applicable to a particular organ system. However, chapter 4 recognizes that a person may have more than one type of cerebral disfunction and, therefore, recommends combining the most severe disfunction with the other disfunctions. This would mean that Dr. Chang’s 3% WPI for a TBI headache should be combined with the 1% WPI mental status for a total of 4% WPI for the nervous system. Dr. Chang’s evidence on the 3% WPI for headaches was uncontroverted and, accordingly, I accept his rating.

5. Sleep Disturbance

57The respondent did not provide any rating for the applicant’s sleep disturbance. Dr. Chang provided a 1% to 9% WPI for sleep disturbance that he attributed, in part, to a possible concussive injury under chapter 4 of the AMA Guides. Dr. Chang testified that if the applicant’s sleep issues were because of his pain and not due to a mild TBI, it was accounted for by the WPI% ratings for the applicant’s musculoskeletal complaints in chapter 3. He did not state how he arrived at a range of 1% to 9% WPI or where in the range he assessed the applicant at. Dr. Chang testified that if the applicant’s sleep complaints were primarily due to pain, he would have assigned a lower rating or a 1% WPI rating for sleep impairment. However, Dr. Chang did not do so because he did not think he could apportion an amount to pain in the face of a possible concussion.

58According to table 6 on p.143 of the AMA Guides, the lowest category of WPI for a sleep disorder is for “reduced daytime alertness with sleep pattern such that patient can carry out most daily activities,” and has a range of 1% to 9%. As pointed out earlier, providing a range of ratings does not assist me. Nor does choosing the top end of the range of impairments without any reasonable explanation as was done by Dr. Becker.

59I find that the applicant’s sleep disturbance should be less than 9% and closer to Dr. Chang’s 1% because the disturbance is due to the applicant’s pain complaints and not a TBI. For example, the applicant advised Dr. Braganza that he was wakened about 10 times per night due to pain.²³ For this reason, I assign a 1%WPI for sleep disturbance.

6. Mental or Behavioural Disorder

60To determine the WPI percentage rating for a mental or behavioural disorder, the Schedule requires the use of the Guides 6th ed. under chapter 14.2. The Guides 6th ed. limit the rating to a diagnosis of mood disorders and anxiety disorders. The assessment does not include psychiatric reaction to pain because the impairment rating for a physical condition includes the pain associated with the condition. The psychological distress associated with the physical impairment is also included in the rating. Therefore Somatoform disorders, sleep disorders and factitious disorders are some of the disorders which are not included in the WPI percentage assessment.²⁴

61The applicant relied on the Court of Appeal decision of Pastore v. Aviva. ²⁵ The case was an appeal from a Financial Services Commission of Ontario (“FSCO”) decision that dealt with the issue of whether pain as a result of physical injuries should be excluded from a mental or behavioural disorder when determining catastrophic impairment. More specifically, the issue was whether the applicant suffered a marked class 4 or severe class 5 impairment in one or more spheres of function due to a mental or behavioural disorder. The assessors were not able to factor out physical causes of pain and, therefore, took a cumulative approach. The assessors determined that the mental disorder itself involved pain and included pain associated with a general medical condition. The Director’s Delegate from FSCO approved this approach. The Divisional Court found that the Director’s Delegate had exceeded his jurisdiction. The Court of Appeal held that the Director’s Delegate’s approach was reasonable. The Court of Appeal stated that it was reasonable in that case to include pain from the general medical condition to the extent that such pain is connected with the diagnosed mental disorder.

62I do not find that Pastore v. Aviva means that I can ignore the exclusion in the Guides 6th ed. for somatoform disorders and psychiatric reactions to pain when doing a WPI% rating because inclusion of such disorders would result in double counting. In Pastore v. Aviva, the respondent Aviva argued before the Court of Appeal that pain should not be included in the mental behavioural assessment because of double counting when the physical and psychological impairments are combined for a WPI% rating. The Court of Appeal held that, in that case, there was no issue of a WPI% rating and that where that is a concern, it would have to be addressed by the assessors and adjudicators directly.

63The respondent submitted that Dr. Braganza’s opinion was based on impairments recorded by Kitty Shum that were as a result of physical injuries or pain complaints. I do not find that this is reason to disregard Dr. Braganza’s opinion, especially since chronic pain is not the pain accounted for in chapter 3 of the AMA Guides. By assessing the applicant’s functional impairments identified by Kitty Shum, Dr. Braganza was including a chronic pain assessment in the manner recommended under chapter 15 of the AMA Guides. I agree with the applicant that s.3.1(5) of the Schedule allows me to address chronic pain by analogy where the AMA Guides do not provide any WPI% for chronic pain.

64According to the Guides 6th ed., the severity of the psychological disorder is assessed by looking at the applicant’s functional impairment scale with respect to self-care and personal hygiene; social and recreational activities; travel; interpersonal relationships; concentration, persistence, and pace; and employability. The Guides 6th ed. uses 3 scales by which mental and behavioural disorder impairment is rated: (1) the Brief Psychiatric Rating Scale (“BPRS”), (2) the Global Assessment of Functioning Scale (“GAF”), and the Psychiatric Impairment Rating· Scale (“PIRS”). The assessor arranges the PIRS scores from lowest to highest and uses the middle two scores.

65The following as a chart comparing Dr. Braganza’s results with Dr. Sivasubramanian’s results.

	Dr. Braganza	Dr. Sivasubramanian
BPRS: using table 14.9 of the Guides 6th ed.	39/168 = 10%	36/168=10%
GAF	41-50 =15% serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)	65= 5% “some difficulty” in functioning, but “generally functioning pretty well, has some meaningful interpersonal relationships”
PIRS: self-care and personal hygiene	2 mild 2+2 =4 = 10%WPI per Table 14.17	1 none 1+2=3=5%WPI
PIRS: social and recreational activities	2 mild	3 moderate
PIRS: travel	2 mild	1 none
PIRS: interpersonal relationships	2 mild	1 none
PIRS: concentration, persistence, and pace	3 moderate	2 mild
PIRS: employability.	3 moderate	3 moderate

66The applicant complained to Dr. Braganza of difficulty with concentration, focussing, multitasking and memory. He also complained of occasional sadness, tearfulness, social withdrawal and decreased motivation. He told Dr. Braganza that his emotional symptoms were improving. Dr. Braganza diagnosed the applicant with an Adjustment Disorder with Depressed Mood, and a Pain Disorder Associated with Both Psychological Factors and a General Medical Condition.

67Dr Sivasubramanian diagnosed the applicant with Somatic Symptom Disorder with predominant pain and neurocognitive concern. He did not think the applicant met the criteria for any other diagnosable psychiatric disorder or condition as a direct result of the accident. He did not report on any indirect diagnosis. He reviewed surveillance in arriving at his opinion but testified that it was not all that helpful as it did not show the applicant engaging in activities he claimed he could not do.

68The respondent submitted I should give little weight to Dr. Braganza’s opinion because she had assessed the applicant beforehand and did not write any report or advise Omega Medical that she had previously assessed the applicant. Dr. Braganza testified that she did not write a report on that first assessment because she was not asked to. I find that Dr. Braganza ought to have disclosed in her catastrophic impairment report that she previously assessed the applicant along with the results from that assessment. However, I find the lack of disclosure was due to a misunderstanding and not to any intent to mislead. I do not find that Dr. Braganza’s earlier assessment changes the fact that the applicant’s mental health deteriorated afterward or that it affected Dr. Braganza’s opinion as set out in her catastrophic impairment report.

69I give more weight to Dr. Braganza’s opinion than Dr. Sivasubramanian for a number of reasons. First, Dr. Sivasubramanian’s opinion of no other psychiatric diagnosis is at odds with Dr. Kurzman’s opinion and test results which disclosed the applicant manifested affective and physiological signs of depression. Dr. Kurzman diagnosed the applicant with Somatization Disorder and/or Major Depressive Disorder. Dr. Braganza’s diagnosis is more in keeping with Dr. Kurzman. Dr. Sivasbrumanian did not provide any explanation for why his opinion was different from Dr. Kurzman’s and Dr. Braganza’s.

70I find that Dr. Sivasubramanian underrated the effect the accident has had on the applicant’s functional abilities. According to Dr. Kurzman, the applicant experiences cognitive difficulties because of his psychological injuries. In fact, Dr. Sivasubramanian recognised that the one sphere of the applicant’s function most affected by the accident is his employment by assigning him a class 3 moderate impairment. The applicant’s employment required him to deal with high stress situations including dealing with irate customers and conflict resolution.²⁶ Dr. Sivasubramanian’s mild class 2 impairment rating for concentration, persistence and pace is inconsistent with the reasons why the applicant is unable to adapt to the workplace.

71The applicant was an electrical engineer who worked in a high stress, cognitively demanding position and, because of his cognitive impairments and quick temper since the accident, is not longer able to participate in his pre-accident employment. This amounts to a serious impairment. For these reasons, I prefer the GAF assessment of Dr. Braganza over Dr. Sivasubramanian.

72Dr. Sivasubramanian determined the applicant had a GAF of 65, which is consistent with “some difficulty” in functioning, but “generally functioning pretty well, has some meaningful interpersonal relationships.” I heard evidence from the applicant’s family members that there has been a deterioration in their relationship with him as they avoid him and avoid anything that may upset him. I do not find that relationships that require a party to walk on eggshells when there was no such need before is a sign of functioning pretty well. For all of these reasons, I prefer Dr. Braganza’s assessment over Dr. Sivasubramanian’s and find that the applicant sustained a 10% WPI for a mental and behavioural impairment.

7. Total WPI Scores

73For the reasons given, I find the applicant’s WPI% scores are as follows:

Impairment	WPI
Lower extremity	15% WPI
Lumbosacral spine impairment	10% WPI
Cervicothoracic spine impairment	5% WPI
Headaches	3% WPI
Medications	3% WPI
Mental status impairment	1%
Sleep disturbance	1%
Mental Behavioural	10% WPI
Total	41% WPI

74I only assigned a 1% for the applicant’s sleep disturbance given that the evidence points to it being primarily from pain. However, even if I had accepted the top end of the range offered by Dr. Chang of 9% for a sleep disturbance, the applicant’s total WPI rating would be 45% WPI, which does not meet the requirement of a 55% WPI for a catastrophic impairment set out in s.3.1(1)7 of the Schedule.

B. Rehabilitation Support Worker

75The applicant is seeking $8,495.00 for rehabilitation support worker (“RSW”) services and pool fees recommended by Matthew Rose, OT, in a treatment plan dated December 20, 2019. The treatment plan stated that the RSW would be implementing a water therapy program. The applicant submitted that RSW services were reasonable and necessary to engage the applicant in activity because he was becoming a recluse. He relied on the testimony of Matthew Rose who testified that an RSW was necessary for the applicant to make functional gains.

76While I accept that a water therapy program would assist the applicant, I was provided with no reasonable explanation for why the applicant would be unable to engage in a water therapy program on his own and why an RSW was required to attend with the applicant. According to Mr. Rose, it is for balance and safety issues. Supervision for safety issues with respect to balance are something that attendant care benefits address, not rehabilitation benefits. The only other reason might be that the applicant has decreased motivation for engaging in activities. However, according to the testimony of the applicant and his treatment providers, he was capable of attending appointments with his other treatment providers despite any lack of motivation. Dr. Kachooie did not seem to think that the applicant required an RSW to attend water therapy with him as it was not included in his chronic pain treatment plan. Accordingly, I am unable to find that the RSW’s services are reasonable or necessary.

77The applicant submitted that the respondent did not properly deny the treatment plan. Under s.38(11) of the Schedule, an insurer is required to pay for treatment incurred under a treatment plan starting from the 11th business day after the plan was submitted until the day the respondent provides a proper denial. In this case, the treatment plan was submitted on December 20, 2019. It was not denied until March 2, 2020. ²⁷ The denial was clearly sent well beyond the 10 business days in which the respondent was required to notify the applicant that it would pay for or deny the recommended treatment. However, I have no evidence of what was incurred under the treatment plan during that period of time.

78I find that if the amount of a medical or rehabilitation benefit is limited or capped elsewhere in the Schedule, that s.38(11) does not operate to override that limit.

79Of the $8,495.00 cost recommended, Mr. Rose recommended $2,137.60 based on 1.5 hours per session at $89.07 per hour for the RSW to travel to meet the applicant. There is no provision in the Schedule for the travel time of a treatment provider to a workplace- whether a clinic, a facility or an insured person’s home.²⁸ Nor is there any provision in the Transportation Expense Guideline for the transportation expense of a treatment provider.²⁹ Further, since I have determined that the applicant did not sustain a catastrophic impairment, the hourly rate for any of the services listed in the treatment plan that were incurred before the plan was denied is limited to $58.19 per hour and not $89.07 per hour by the Professional Fees Guideline.³⁰ Accordingly, if there are any policy limits for medical and rehabilitation benefits remaining, no transportation expenses that were incurred up to March 2, 2020 are payable under s.38(11) and the RSW services are limited to $58.19 per hour.

C. Cost of a Home Modification Assessment

80The applicant is seeking $2,700.00 for the cost of a home accessibility assessment recommended by Matthew Rose in a treatment plan dated January 24, 2020. If there are any policy limits remaining, I am unable to find that the applicant is entitled to the cost of a home modification assessment even though it may be necessary to address any accessibility issues the applicant may have in his home. Mr. Rose stated on the treatment plan that the assessment was necessary for providing the applicant with a safe and functional access to his home via his front entrance. The cost of the assessment was $2,500.00 for a report by David Borthwick plus $200.00 for Mr. Rose’s cost of preparing the treatment plan. However, I am unable to determine whether the cost of a home modification assessment is reasonable for the following reasons.

81Section 25(1) of the Schedule requires an insurer to pay the reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan under s.38, including any assessment or examination necessary for that purpose, if I determine that the home modification assessment is payable.

82The assessment was to be conducted by David Borthwick. Based on the treatment plan, he is not a regulated health professional or health provider. Under s.25(3) of the Schedule, the respondent is not liable for paying the cost of an assessment that exceeds the maximum rate of $2,000.00³¹ or exceeds the maximum rate under the Professional Services Guideline.³² Mr. Borthwick’s fee of $2,500.00 exceeds the maximum $2,000.00 fee allowed under s.25(5)(a) of the Schedule. I heard no submissions from the applicant that would allow me to vary the $2,000.00 maximum payable for an assessment.

83The maximum hourly rate payable for non-catastrophic insured persons under the Professional Services Guideline is $58.19 per hour for an unregulated provider such as David Borthwick and $99.75 per hour for occupational therapists. No hourly rate for Mr. Rose nor Mr. Borthwick was provided on the treatment plan, nor were the number of hours required for Mr. Borthwick to conduct the assessment or for Mr. Rose to prepare the treatment plan provided. Without that information, I am unable to determine whether the fees set out in the treatment plan are reasonable. Accordingly, the applicant’s claim for the assessment is dismissed.

D. Chronic Pain Program

84The applicant sought entitlement to $10,027.60 for a chronic pain program recommended by Dr. Kachooie in a treatment plan dated June 22, 2020 and denied by the respondent July 20, 2020.

85The applicant submitted that the respondent failed to properly deny the treatment plan within the 10 days required under the Schedule and is therefore entitled to all the treatment incurred under the treatment plan prior to July 20, 2020. I agree, however, no evidence was before me as to how much of the treatment was incurred by the applicant during the period from the 11th business day after the treatment plan was submitted to July 20, 2020.

86The applicant submitted that Dr. Kachooie’s treatment plan proposed a multidisciplinary approach of psychological therapy, chiropractic treatment, physiotherapy, and injections into the applicant’s knee. The respondent submitted that Dr. Kachooie’s recommendations be given little weight as he was clearly biased for the applicant, he did not prepare the treatment plan, nor did he review it when he signed off on it.

87I accept the applicant has chronic pain syndrome based on the diagnosis made by Dr. Stephen Brown, an expert in anesthesia and pain management, and Dr. Kachooie. If Dr. Kachooie was the only physician who made the diagnosis or recommendation for a chronic pain program, I might have been inclined to agree with the respondent’s critique of Dr. Kachooie’s treatment plan. However, both Dr. Brown and Dr. Kachooie testified that the best method for addressing chronic pain syndrome is a multidisciplinary approach that combines physical rehabilitation, pain relief and psychotherapy. I accept their evidence that the type of treatment listed in Dr. Kachooie’s treatment plan is a multidisciplinary approach as recommended by both Dr. Brown and Dr. Kachooie.

88The treatment plan recommends physiotherapy at $98.86 per hour for 20 sessions over 12 weeks, one hour of education by the physiotherapist at $95.00 per hour, plus therapy intervention by the physiotherapist for what appears to be shockwave therapy at $150.00 per session for 5 sessions with no breakdown of the hours or the rate involved. Since the treatment plan already recommends two different hourly rates for the same physiotherapist, I am unable to find that the fee charged for shockwave therapy is reasonable without a breakdown of the hourly rate charged.

89My comments about a breakdown of the time required and the hourly rate charged also apply to the part of the disputed treatment plan recommending a $2,000.00 psychological assessment by Dr. Alireza Ebrahimian, psychologist. Further, I heard no evidence on why the applicant was required to undergo another psychological assessment when he had already undergone one from Dr. Braganza. Accordingly, I am unable to find that portion of the treatment plan is reasonable or necessary.

90I heard no evidence to refute the cost of the injections Dr. Kachooie was gong to administer and have no reason to believe that the fees listed are not reasonable. Accordingly, I find that the remainder of the treatment plan, subject to the policy limits available, is reasonable and necessary to treat the applicant’s chronic pain syndrome.

E. Chiropractic Treatment

91Chiropractic treatment of $3,818.00 was recommended by Dr. John Fujimagari, chiropractor, in a treatment plan (OCF-18) dated June 11, 2020.³³ The applicant relied on the testimony of Dr. Fujimagari and Paul Trentadue, massage therapist, that the proposed treatment helped alleviate the applicant’s chronic pain and prevent further deterioration.

92I accept that pain relief and prevention form deterioration are reasonable goals for a treatment plan, especially for someone like the applicant who has been diagnosed with chronic pain syndrome. Dr. Fujimagari recommended spinal manipulation, acupuncture, and physical rehabilitation. The cost proposed appears reasonable as his hourly fee is listed as $90.00 per hour for physical rehabilitation. However, just eleven days after Dr. Fujimagari’s treatment plan was submitted, Dr. Kachooie submitted his treatment plan for a chronic pain program that recommended the same type of treatment, except for spinal manipulation, but in a multidisciplinary setting. I determined that Dr. Kachooie’s treatment plan, for the most part, was reasonable and necessary. Accordingly, I find that, except for the spinal manipulation, Dr. Fujimagari’s treatment plan is a duplication of services. For this reason, I find that the only portion of it that is reasonable or necessary is the spinal manipulation at the cost of $1,872.00.

F. Psychotherapy

93The applicant submitted that, given the diagnoses made by Dr. Braganza, Dr. Kurzman and Dr. Sivasubramanian, the treatment plan for $3,966.48 for psychotherapy services recommended by Dr. Eric Seltzer, physician, dated June 5, 2020 is reasonable and necessary.

94I heard testimony from Donna Barefoot, a psychotherapist, who was proposed by Dr. Seltzer to provide the psychotherapy. Dr. Seltzer recommended 1.5 hour sessions at $149.61 per hour for Ms. Barefoot’s services. Ms. Barefoot has a Master of Education and Counselling and is registered with the College of Psychotherapists for unsupervised practice. She has been able to practice unsupervised since 2015. She testified that the Ontario Association for Mental Health Professionals recommend an hourly fee for her services of $149.61. The respondent did not challenge the hourly rate charged. According to the Professional Services Guideline, the parties are to negotiate the fee for a registered health professional whose fee rate is not listed. The hourly fee for registered psychotherapists such as Ms. Barefoot are not listed. I find that as she is able to treat clients unsupervised, she is charging a rate recommended by her organization and her rates were not challenged by the respondent, her hourly rate is reasonable.

95Dr. Seltzer recommended $598.44 for travel time. I already found that travel time of a service provider is not covered in the Schedule or the Transportation Expense Guideline. Accordingly, I do not find the fee is reasonable or necessary. However, I find that the remainder of the treatment plan, subject to the remaining policy limits, is reasonable and necessary to treat the applicant’s psychological impairments as diagnosed by Dr. Braganza, Dr. Kurzman and Dr. Sivasubramanian.

G. Attendant Care

96The applicant claimed entitlement to attendant care of $493.54 per month from December 13, 2019 to date. The applicant’s accident took place after the amendments to the Schedule effective June 1, 2016. However, the respondent confirmed that the applicant’s insurance policy was in effect prior to the June 1, 2016 amendments. Under s.2(1.2)5, of the Schedule, the length of time the applicant is entitled to attendant care benefits is governed by s.20 of the Schedule as it read before the June 1, 2016 revisions. Under s.20(2) of the Schedule in force prior to June 1, 2016, no attendant care benefits are payable for expenses incurred more than 104 weeks after the accident unless the applicant sustained a catastrophic impairment. Since the applicant did not sustain a catastrophic impairment, he is not entitled to attendant care benefits beyond August 31, 2018. Accordingly, this claim is dismissed. In any event, the attendant care received by the applicant was from family members, not a professional care provider. There was no evidence that any of the applicant’s family members suffered an economic loss on providing him with attendant care. Therefore, I heard no evidence that attendant care expenses were incurred.

H. Reg. 664 Award

97Under s.10 of Reg.664, if I find that the respondent unreasonably withheld or delayed payments, I may, in addition to awarding the benefits and interest to which the applicant is entitled under Schedule, award a lump sum of up to 50 percent of the amount to which the applicant was entitled at the time of the award together with interest on all amounts then owing to him. The applicant submitted that the respondent unreasonably delayed his determination of catastrophic impairment and the payment of the medical, rehabilitation and attendant care benefits claimed. The policy limits for medical and rehabilitation benefits available to the applicant for non-catastrophic impairment are $50,000.00.³⁴ The applicant was advised on September 26, 2019 that $56,220.76 was paid out by the respondent for medical and rehabilitation benefits.³⁵ Given that the applicant’s policy limits are exhausted, he is not entitled to any further benefits. As no further benefits are payable, the respondent did not unreasonably delay the payment of benefits. However, if he had been entitled to any benefits, I would have found he was entitled to a Reg.664 award for the following reasons.

98The purpose of an award is to punish insurers that unreasonably fail to pay accident benefits promptly, as required by the Schedule, and to deter the insurance company and others from acting similarly in the future.³⁶ In determining the appropriate quantum of an award, some of the factors to consider are:

a. the overall length of the delay;

b. the blameworthiness of the insurer’s conduct;

c. the vulnerability of the insured person;

d. the harm or potential harm directed at the insured person;

e. the need for deterrence;

f. the advantage wrongfully gained by the insurer from the misconduct;

g. whether the insurer acted professionally in its handling of an insured’s claim; or

h. whether there has been a pattern of unreasonable conduct in the insurer’s handling of the claim in relation to other benefits.³⁷

99The applicant submitted that another reason for why a Reg. 664 award should be made was that the respondent tried to negotiate a settlement of his massage therapist’s account in exchange for the massage therapist’s agreement to stop treating the applicant. The adjuster at the time, Johnny Fragnelli, testified and did not provide a very good explanation of what he was trying to do. However, he wrote to the applicant’s legal representative on May 6, 2020 ³⁸ advising that his conversation was taken out of context by Mr. Trentadue. I find that Mr. Fragnelli was trying to settle outstanding accounts Mr. Trentadue had at the time and accept that Mr. Trentadue misunderstood that the respondent was asking in exchange that he discharge the applicant. This is especially so given that Mr. Fragnelli had similar negotiations with another of the applicant’s treatment providers who did not see anything untoward in the negotiations.

100I heard no reasonable excuse as to why it took the respondent so long to complete its catastrophic IE assessments. The applicant submitted his application for catastrophic determination on February 5, 2020. The respondent’s IE reports were not released until June 14, 2021. Part of the delay was because the respondent’s OT, Joan Saunders, did not complete her assessment on August 13, 2020, when it was originally supposed to take place. Ms. Saunders testified that she had to schedule an additional day for her to complete the assessment because the applicant took 40 minutes to have a consent form approved and signed. She testified that the earliest date she could rebook the applicant was in March 2021, partly because her office was closed due to Covid 19 and because she was already booked up.

101I found that Ms. Saunders was evasive and would not answer questions directly but would provide long explanations that were not related to the question asked. She eventually testified that she could have assessed the applicant sooner if she had cancelled one of her appointments. I do not understand why she did not do so. Most of her assessments are for insurers through agencies like CanAssess. It is common knowledge that those agencies have a roster of assessors and, therefore, if Ms. Saunders had cancelled one of her appointments in order to finish her assessment of the applicant in a timely manner, CanAssess could have just re-booked that cancelled appointment with a different occupational therapist. No insured person would have experienced the delay that the applicant did.

102The respondent was contacted by CanAssess on February 22, 2021 with March 2021 dates for completing the OT assessment. The respondent was also contacted by the applicant’s counsel on March 1, 2021 about completing the catastrophic IE.³⁹ In fairness to the respondent, the adjuster tried to schedule the remainder of the assessment as a virtual assessment for an earlier date, but Ms. Saunders advised she needed to do a physical assessment of the applicant and that could only be done in person.⁴⁰ I find Ms. Saunders’ disregard of the importance of completing her assessment in a timely manner was callous. However, I am not convinced that the respondent was able to do much more in the face of Ms. Saunders’ failure to accommodate the respondent and the applicant.

103However, Ms. Saunders’ delay is not the only issue. Especially as it is not clear that her assessment was even reasonably required by the physician or neuropsychologist who was performing the catastrophic IE under s.45 of the Schedule. According to the testimony of the IE assessors, it appeared that someone from CanAssess determined that a neuropsychologist, psychiatrist, orthopaedic specialist and occupational therapist should do the catastrophic IE without having input from the physician charged with conducting the catastrophic IE. Dr. Sekyi-Otu testified that he was not asked to do the executive summary by CanAssess until June 1, 2021. This was well after the assessments were all completed. There was no evidence that there was a physician or neuropsychologist who was responsible under s.45(2)1 or 2 with doing the assessment who required Ms. Saunders’ assessment in order to render an opinion. This is contrary to ss.45(2)1 and 2 of the Schedule, which require the catastrophic assessment to be conducted by a physician or, in the case of a TBI, a neuropsychologist, with the assistance of such regulated health professionals as he or she may reasonably require.

104CanAssess took two months from the time it received Ms. Saunders’ report in April 2021 to release it in June 2021. Ms. Saunders’ report was the last of the multidisciplinary assessments to be conducted. No reasonable explanation was given for why Dr. Sekyi-Otu was not asked until June 1, 2021 to write the executive summary, which was well after all of the other reports were completed.

105I find that the respondent is responsible for the unreasonably delay as it chose CanAssess to arrange the assessments and, through that choice, the assessments were not properly arranged in accordance with the Schedule or in a timely manner. However, given that there are no benefits owing since the policy limits appear to be exhausted, the claim for a Reg. 664 award is dismissed.

I. Costs

106In deciding whether to order costs and the amount of costs to be ordered, the Tribunal shall consider all relevant factors including: the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system.

107The respondent sought the costs of two motions, one that it brought before the hearing with mixed success and another that the applicant brought mid-hearing without success. Upon hearing that the respondent was relying on its previous submissions with respect to costs, the applicant also sought his costs at the end of the hearing on the basis the respondent advised in its submissions the reasons for its denials of a number of benefits.

108The applicant provided no amount that he was claiming for costs. Accordingly, his claim is dismissed.

109The respondent sought $1,000.00 for each motion. It did not provide a breakdown of the legal fees incurred. Further, the respondent is in-house counsel and, accordingly, I would require some proof that the respondent actually incurred legal fees rather than paying an employee salary. Without proof that the respondent sustained any costs as a result of the motion, I am unable to award any costs. For these reasons, I need not assess whether the applicant’s actions in bringing his motion or necessitating the respondent’s motion were an abuse of process or were in bad faith.

CONCLUSION and Order

110The applicant did not sustain a catastrophic impairment under s.3.1(1)8 of the Schedule because the uncontroverted evidence is that his rating for a mental status impairment is 1% WPI. Even if I accept all the other WPI ratings determined by Omega Medical, this only amounts to a 45% WPI, which is less than the 55% WPI necessary for a determination that the applicant has a catastrophic impairment.

111The evidence suggests that the applicant has exhausted his policy limits for medical and rehabilitation benefits. If that is the case, the remainder of his claims are dismissed. Otherwise, the applicant is entitled to the following subject to the remaining policy limits for medical and rehabilitation benefits:

a. Water therapy and the treatment services only of an RSW incurred from January 10, 2020 to March 2, 2020 at no more than $58.19 per hour under Mr. Rose’s December 20, 2019 treatment plan;

b. Chronic pain program recommended by Dr. Kachooie in his treatment plan dated June 22, 2020 at no more than $98.86 per hour for shock wave therapy and less $2,000.00 for the psychological assessment;

c. Chiropractic treatment for spinal manipulation of $1,872.00 under Dr. Fujimagari in a treatment plan (OCF-18) dated June 11, 2020;

d. Psychotherapy of $3,368.04 recommended by Dr. Seltzer in his treatment plan dated June 5, 2020, but not the $598.44 for travel time; and

e. Interest in accordance with the Schedule.

112The applicant’s claim for attendant care benefits is dismissed.

113The claim for a Reg.664 award is dismissed.

114The applicant’s claim for costs is dismissed.

115The respondent’s claim for costs is dismissed.

Footnotes

1. 1Rule 19.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“LAT Rules”)
2. 2Brown v. Dunn (1893) 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness box.
3. 3Community Lifecare Inc. and Community Health Care Workers Union (Re), 2001 CanLII 62000 (ON LA); The Board of Education for the City of Windsor, [1996] O.L.R.D. No. 2331; Prairie Plumbing Ltd. [2004] OLRB Rep. Sept./Oct. 965. R. v. Graziano, 2015 ONCA 491
4. 4American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“AMA Guides”)
5. 5S.3.1(1)7 of the Schedule, A mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating methodology in chapter 14, section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008 (“Guides 6th ed.”), that, when the impairment score is combined with a physical impairment described in paragraph 6 in accordance with the combining requirements set out in the Combined Values Table of the AMA Guides, results in 55 percent or more impairment of the whole person.
6. 6Ex.48: Report of Dr. Lisa Becker and Dr. Harold Becker dated February 5, 2020
7. 7AMA Guides, chp.2, p.2/9
8. 8AMA Guides, chp.15.3, p.304
9. 9Ex.66; applicant brief p.1092 Dr. Kachooie’s clinical notes and records. Note of August 8, 2017, and p.1071 note of April 20, 2017
10. 10Ex.66: clinical notes and records of Dr. Kachooie, report dated March 29, 2021 applicant brief p.1103
11. 11Ex.66: applicant brief p. 1107 consult note of May 25, 2021
12. 12Ex.53: clinical notes and records of Dr. Medina, report of Dr. Guerra dated January 25, 2017, p.815
13. 13Ex. 77: clinical notes and records of Rouge Valley, page 28
14. 14Ex. 44: statements of various people from September 26, 2019 to March 9, 2021
15. 15Ex.61, report of K Shum, OT, of November 7, 2019, there is no mention of his using a cane or walker during his assessment; Ex.62, report of Dr. Chang dated
16. 16Ex.4, letter from applicant’s counsel to respondent dated November 1, 2018
17. 17Ex. 62, report of Dr. Chang, physiatrist dated of November 7, 2019, p.1178
18. 18AMA Guides p.3/75
19. 19Ex.45: report of Dr. Braganza, psychologist, dated October 28, 2019, p.1206
20. 20Ex.53: clinical note of Dr. Medina dated September 12, 2016, p.800
21. 21Ex.54: Dr. Medina note dated September 28, 2016 and Ex.51: records from Lakeridge Health (Rouge Valley) - August 31, 2016
22. 22See for example chapter 3 p.14 of the AMA Guides require that a WPI% estimate be given, not a range of WPI percentages. In chapter 1 p.3, the AMA Guides discuss the key to assessing “an accurate impairment rating,” not a “range of ratings.” Chapter 2.2 refers to each organ system impairment being expressed as “a whole-person impairment,” not a “range of whole-person impairment.”
23. 23Ex.45:report of Dr. Braganza dated January 27, 2020
24. 24Guides 6th ed. p.349
25. 25Pastore v. Aviva Canada Inc., 2012 ONCA 642 (Pastore v. Aviva)
26. 26Ex.44: statement of Mitch McDermid, co-worker, dated October 9, 2019
27. 27Ex.22, letter from J. Fragnelli of Aviva dated March 2, 2020 and enclosed treatment plan of M. Rose dated December 20, 2019.
28. 28Medical benefits under s.14 of the Schedule only pay for the services of regulated health professionals, not their travel time. The only travel payable under s.14 is the applicant’s. The only activity or measure included in s.16 of the Schedule is for transportation of the applicant.
29. 29Superintendent's Guideline No. 04/16: Transportation Expense Guideline (“Transportation Expense Guideline”)
30. 30Superintendent’s Guideline No. 03/14: Professional Services Guideline (“Professional Services Guideline”), s.15(2)(b) and s.16(4)(a) of the Schedule
31. 31Section 25(5)(a) of the Schedule
32. 32Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“Professional Services Guideline”)
33. 33Ex.25
34. 34See s.2(1.2)3 of the Schedule
35. 35Ex.4: February 1, 2017 to April 30, 2021 correspondence, letter from respondent dated September 26, 2019
36. 36S.K. vs. Aviva Insurance Canada, 2020 ONLAT 17-006866/AABS and R.K. vs. RBC General Insurance Company, 2020 ONLAT 17-006651/AABS, 2020 CanLII 43700 (ON LAT)
37. 37AJ v. Security National Insurance Co., 2021 ONLAT 18-007658/AABS, 2021 CanLII 35586 (ON LAT)
38. 38Ex.4: February 1, 2017 to April 30, 2021 correspondence
39. 39Ex.4, letter from applicant’s counsel to respondent dated March 1, 2021, email correspondence between applicant’s counsel and respondent from March 2 to 3, 2021.
40. 40Ex. 4. Email correspondence between CanAssess and the respondent from February 22, 2021 to March 3, 2021