Smith v. Certas Direct Insurance Company, 2022 CanLII 78881

Smith v Certas Direct Insurance Company, 2022 ONLAT 20-006605/AABS

Citation: Smith v Certas Direct Insurance Company, 2022 ONLAT 20-006605/AABS

Licence Appeal Tribunal File Number: 20-006605/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:

Ron Smith

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Ron Smith, Applicant

Michael Brill, Counsel

For the Respondent:

Anup Kaushal, Adjuster

Bruce Chambers, Counsel

Court Reporter:

Alyssa Scott

HEARD: by Videoconference:

May 16, 17, 18 and 20, 2022

OVERVIEW

1Ron Smith (the "applicant") was involved in an automobile accident on July 16, 2017 and sought benefits from Certas Direct Insurance Company (the "respondent") pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016).The applicant was denied certain benefits by the respondent and submitted an application 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 under Criteria 2, 6, 7 and 8. It also denied the applicant's entitlement to a non earner benefit ("NEB"), attendant care benefit ("ACB") and some treatment plans ("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 not able to resolve the issues in dispute. The matter proceeded to a four-day video-conference hearing. On behalf of the applicant, I heard the testimony of the applicant, Rebecca Yull, family friend, Dr. Getahun, orthopaedic surgeon, Dr. Logan, family doctor, Dr. Nasser, treating vascular surgeon and Dr. Sharma, psychiatrist. On behalf of the respondent, I heard the testimony of IE assessors Dr. Karabatsous, orthopaedic surgeon and Dr. Kapila, vascular surgeon.

ISSUES IN DISPUTE

3I have been asked to decide the following issues in dispute:

a) Has the applicant sustained a CAT impairment as defined by the Schedule?

b) Is the applicant entitled to a NEB in the amount of $185.00 per week from March 17, 2018 to date and ongoing?

c) Is the applicant entitled to an ACB in the amount of $1,280.51 per month from April 17, 2018 to date and ongoing?

d) Is the applicant entitled to $3,590.01 for chiropractic treatment, recommended by Tandem Health and Diagnostic ("Tandem Health") in a treatment plan (OCF-18) denied September 18, 2018?

e) Is the applicant entitled to $912.81 for in-home exercise program, recommended by Tandem Health in an OCF-18 denied December 19, 2018?¹

f) Is the applicant entitled to $23,388.04 for CAT assessments recommended by Alliance Diagnostics in an OCF-18 denied June 10, 2021?

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

RESULT

4After considering the parties' submissions and all of the evidence I find as follows:

a) The applicant has sustained a CAT impairment as defined by the Schedule.

b) The applicant is entitled to a NEB in the amount of $185.00 per week from March 17, 2018 to date and ongoing.

c) The applicant is entitled to an ACB in the amount of $888.33 per month. ACBs are payable in the incurred amounts between August 2, 2019 to May 20, 2021 and on an ongoing basis upon proof that the benefit has been incurred.

d) The applicant is entitled to the OCF-18 in the amount of $3,509.01 for chiropractic treatment recommended by Tandem Health.

e) The applicant is entitled to $23,388.04 for CAT assessments recommended by Alliance Diagnostics.

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

g) The applicant is not entitled to the OCF-18 in the amount of $912.81 for the home exercise program recommended by Tandem Health.

PROCEDURAL ISSUES

5The applicant brought a motion to exclude the IE reports of Dr. Karabatsous and Dr. Kapila, as they were not served on the applicant until April 5, 2022, which was 18 days past the production deadline provided for in the Tribunal's Case Conference Report and Order. The applicant also sought to exclude the addendum report of Dr. Kapila served on May 12, 2022, less than two-days prior to the hearing. The applicant argues that is would be procedurally unfair to allow the respondent to rely on these reports as they were served late and he has not had adequate time to respond. Further, an adjournment would be prejudicial to him as it would result in a significant delay of the hearing and a determination being made in this matter.

6The respondent argues that the IE reports of Dr. Karabatsous and Dr. Kapila were served on April 5, 2012, because the applicant submitted a new application seeking a CAT determination (OCF-19) on December 17, 2021, under new Criteria. Further, the respondent was not in receipt of the applicant's CAT reports until January 2022. The IE reports which were served late were responsive to the new OCF-19 submitted and the applicant has CAT reports addressing the new Criteria. Therefore, to exclude its reports would inhibit the respondent's ability to defend the case against it. Regarding the late commission and service of Dr. Kapila's addendum report, counsel clarified that it was requested because Dr. Kapila failed to address Dr. Logan's theory on causation in his initial IE.

7The applicant maintains that the respondent had Dr. Logan's letter as of November 13, 2020, as it was faxed to the respondent on that date. Therefore, there is no reason why Dr. Kapila could not have addressed it in his initial IE report. The applicant submits it is inappropriate and prejudicial to the applicant for the respondent to serve an addendum report at this late stage of the process.

8The applicant's motion seeking to exclude the IE reports of Dr. Karabatsous and Dr. Kapila served on April 5, 2022, is denied. Due to the timing of the applicant's submission of the new OCF-19, to exclude these reports would prevent the respondent's from defending the case against it, as well as its full and fair participation in the hearing. Further, while these reports were not served in accordance with the deadline provided for in the Tribunal's order, they were served over a month prior to the hearing. Therefore, I do not find that the applicant is surprised by the contents of these reports. To address any procedural unfairness to the applicant, I will allow his experts time to comment on these reports.

9The applicant's motion seeking to exclude the addendum report of Dr. Kapila served on May 12, 2022, is granted. I agree with the applicant that the respondent had Dr. Logan's letter in 2020. Consequently, I find that there was no reason why Dr. Kapila could not have addressed it in his initial IE report. I find it inappropriate for the respondent to serve the applicant with an addendum report less than two days prior to the hearing. In my view, it would be procedurally unfair to the applicant to allow the respondent to rely on this report.

BACKGROUND

10On July 16, 2017, the applicant was a passenger in a vehicle driven by his wife, which was involved in an accident when the vehicle hit a pothole, then a tree and flipped over. The vehicle was deemed a write off. The applicant submits that he and his wife were hanging upside down strapped into their vehicle by their seat belts. The applicant was able to release himself and proceeded to assist his wife who dropped down onto his legs. Emergency personnel attended the scene, and they were both taken to the hospital. The applicant had a laceration on his right arm which required stitches. At the time, he denied having any other pain or injuries. The applicant's wife was admitted to the critical care unit and remained in the hospital for two-weeks.

11The applicant followed up with his family doctor a few weeks later who recommended that he attend physiotherapy. The applicant now seeks a CAT determination under four separate Criteria.

12On December 6, 2019, the applicant submitted an application for a CAT determination under section 3.1(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 set 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)

13In order to meet the threshold for a CAT impairment under Criterion 8, an individual must have sustained a marked (class 4) impairment as a result of the accident in three of the four spheres of functioning or one extreme (class 5) impairment due to a mental and behavioural disorder.

14On December 17, 2021, the applicant submitted a new OCF-19 seeking a CAT determination under Criteria 2, 6, 7 and 8. The following describes the tests to qualify for CAT status under Criteria 2, 6 and 7.

i) Criterion 2: Severe impairment of ambulatory mobility or use of an arm, or amputation.

ii) Criterion 6: Physical impairment or combination of physical impairment which results in 55 % or more impairment of the whole person.

iii) Criterion 7: Mental or behavioural impairment, excluding traumatic brain injury, combined with a physical impairment which results in a 55% or more impairment of the whole person.

15In support of his position that he meets CAT status under Criterion 8, the applicant relies on the CAT reports of Dr. Rockman, psychologist, dated November 19, 2019 and Deena Rogozinsky, OT, dated October 20, 2019. He also relies on the CAT report of Dr. Sharma, psychiatrist, and OT report of Verun Madan both dated December 6, 2021. Dr. Rockman and Dr. Sharma both determined that the applicant has a marked impairment in activities of daily living, social functioning, and adaptation as a result of the accident. The respondent relies on the CAT IE reports of Dr. Waisman, psychiatrist and the OT report of Melanie Robbins dated April 7, 2020, who determined that the applicant has a marked impairment in adaptation and a moderate impairment in activities of daily living and social functioning. Both parties' assessors determined that the applicant has a moderate impairment in concentration, persistence, and pace.

16In support of his position that he meets CAT status under Criteria 2, 6 and 7, the applicant relies on the CAT report of Dr. Getahun and the opinions of Dr. Nasser and Dr. Logan. The respondent relies on the CAT IE reports of Dr. Karabatsous and Dr. Kapila.

17This matter is complicated by the fact that the applicant had a significant pre-accident medical history. The crux of this dispute involves answering the question of whether or not the accident led to the progression of the applicant's pre-existing peripheral arterial disease ("PAD") resulting in the above the knee amputation of his right leg in September 2020. The respondent argues that the accident did not cause the applicant's right leg amputation. Instead, it asserts that the amputation and resulting physical and psychological impairments would have happened regardless of the accident and that this is central to his application for a CAT determination.

18The applicant acknowledges that he had significant pre-accident health issues. However, he asserts that he was functioning at a higher level and that his pre-existing PAD was stable. The applicant submits that the accident resulted in neck pain, a right arm impairment and exacerbated his chronic back pain and his pre-existing PAD became symptomatic. The applicant contends that these impairments resulted in decreased mobility which in turn led to the rapid progression of his PAD which led to his right leg amputation. Both parties agree, that if I accept that the accident was a cause of the applicant's right leg amputation then he meets CAT status. Therefore, I will first address the issue of causation in relation to the applicant's right leg amputation.

ANALYSIS

Did the accident result in the progression of the applicant's PAD resulting in the need for the amputation of his right knee?

19I find that the accident resulted in the progression of the applicant's pre-existing PAD resulting in the need for the above the knee amputation of his right leg.

20It 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. (Sabadash).⁴ 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.

21As already noted, the applicant was diagnosed with PAD in 2010 which resulted in serious mobility issues due to blocked arteries in his legs. Consequently, he stopped working and began collecting ODSP. As a result of the PAD diagnosis the applicant underwent aortobifemoral bypass surgery of his right leg in 2012, which resulted in increased mobility and function. The applicant was also diagnosed with vasovagal syncope (a condition that leads to fainting spells and temporary paralysis) and his driver's licence was suspended in 2014.

22The applicant testified that prior to the accident his PAD was stable, and he was asymptomatic. He was able to independently carry out his activities of daily living such as self-care, housekeeping and home maintenance tasks and he was not significantly limited in his ability to walk, sit, and stand. He enjoyed recreational pursuits such as playing baseball and football with his son. He testified that he was known in his neighbourhood for having a well-groomed lawn and he enjoyed gardening and shovelling snow in the winter, although it would take him longer to do these tasks because of his condition. Further, he was never a very social person, but he had a couple of close friends and had good relationships with his wife and son.

23The applicant testified that post-accident, his PAD condition became symptomatic because he became immobile following the accident due to chronic back and neck pain. Further, he began to experience significant pain in his right leg which interfered with his ability to stand and walk. He maintains that the progression of his PAD symptoms along with his accident-related back and neck pain significantly altered his mobility. In addition, he started experiencing numbness in his right arm which also interfered with his ability to carry out his personal care tasks such as dressing, undressing, bathing, grooming and his housekeeping and home maintenance tasks.

24Dr. Nasser, Dr. Logan, and Dr. Getahun all agree that the applicant's lack of mobility because of his accident-related impairments resulted in the progression of his PAD condition, and the need for a second by-pass surgery in 2018 and above the knee amputation in 2020. I agree with the applicant's doctors as I find their opinions consistent with the applicant's testimony and the medical evidence before me.

25Overall, I find the applicant to be a credible witness and I believe that he was functioning at a higher physical level prior to the accident and that his PAD was asymptomatic then. Further, none of the assessors throughout the history of this claim had issues with the applicant's credibility and I find the applicant was consistent in reporting his impairments and limitations to assessors. In addition, with the exception of a CPP form from 2014, I find that the pre-accident clinical notes and records ("CNRs") support the applicant's position that his PAD was stable and that he did not have any significant functional limitations in the two-years prior to the accident. The following pre-accident medical records are relevant to my finding.

a) A discharge summary report dated March 10, 2012, prepared by Dr. Musa, M.D. supports that the applicant underwent a by-pass surgery of the right knee to treat his PAD. It notes that the applicant suffers from osteoarthritis and that the surgery was uncomplicated, and his recovery would be uneventful. He is mobilizing up and about.

b) A form completed for CPP benefits dated January 21, 2014, by the applicant's family doctor notes the applicant's diagnosis of PAD and vasovagal syncope and indicates that the applicant was unable to walk for more than half a block and was unable to drive or obtain gainful employment because of chronic back pain. The form notes that as of November 6, 2012, the applicant walks with a cane.

c) A consult note of Dr. Nasser dated July 22, 2015 indicates that the applicant was staying active by helping his son with his newspaper delivery business. He encouraged the applicant to stop smoking and to be as active as possible. No follow up appointments or interventions were booked.

d) A consult note of Dr. Nasser dated August 11, 2016, states that the applicant's condition had been stable over the past year. The ultrasound doppler tests showed improvements. Dr. Nasser encouraged the applicant to stop smoking and continue walking on a daily basis. No follow-up appointments or interventions were booked.

26I do not find the pre-accident CNRs support the respondent's position on causation, as other than a CPP form from 2014, the records from two-years pre-accident show that the applicant's PAD was stable, he was physically active and there was no evidence of any significant functional limitations. In my view, if the applicant had any significant issues with mobility or function, they would be reflected in the pre-accident family doctor's CNRs. However, the family doctor's records are silent in these respects in the two-years prior to the accident.

27I also find Dr. Nasser's consult notes support the doctor's opinion regarding the importance of the applicant's mobility in managing his pre-accident PAD as the doctor reminds the applicant of the importance of smoking cessation and being physically active during the applicant's visits.

28Much was made by the respondent about the fact that the applicant did not make any complaints to paramedics or hospital staff about neck, back or specifically a right knee injury on the day of the accident or in the few months afterwards. In most cases, I would find this fact significant. However, in this case I do not place much weight on it, and this is why. The applicant testified that his wife sustained serious injuries as a result of the accident, was placed in critical care and was in the hospital for two weeks and in and out of the hospital for months. The applicant testified that in the time period shortly following the accident, he was more worried about his wife's condition than his own. In order to understand the applicant's actions during this time period it is important to briefly touch upon his history.

29The applicant married his first wife in the 1980s and they had a daughter. Tragically, the applicant's daughter was hit by a car at the age of six-years old, resulting in the child's death. However, to make matters worse, the applicant's first wife was involved in a car accident one-year later resulting in her death. As a result of these life events, I find it is understandable that the applicant would be more concerned about the health and well being of his wife over reporting his own injuries and accept his explanation in relation to same.

30In addition, I find the post-accident CNRs support that there was a rapid progression of the applicant's PAD following the accident. Starting in August of 2017, the applicant reports increasing symptoms of vascular claudication. In a physiotherapy note one month later he complains of lower leg pain and reports symptoms of vascular claudication have worsened post-accident. By November 2017, Dr. Nasser's CNRs support that the applicant's mobility was significantly reduced and that he now required assistive devices such as a walker and wheelchair for mobility. Doppler tests of the applicant's right leg revealed deteriorating pressure.

31On February 27, 2018, the applicant required a second by-pass surgery of his right leg due to decrease mobility. From this point onward, the applicant's PAD continued to deteriorate and he eventually had to undergo the above the knee amputation of his right leg on September 12, 2020.

32Dr. Nasser testified that although the applicant's history of being a smoker was the main cause of his diagnosis of PAD, his reduced mobility post-accident was a cause of the rapid progression of the disease and the need for the amputation of his right leg. I find that the evidence supports that in the months following the accident, the applicant's mobility decreased and he started reporting pain in his right leg. I find that the accident was the catalyst for the need for the second by-pass surgery and the need for the above the knee amputation.

33By contrast, the respondent relies on the IE of Dr. Kapila who opined that the accident had nothing to do with the progression of the applicant's PAD and the need for the above the knee amputation. Dr. Kapila testified that the applicant's amputation that occurred in 2020 was a result of an acute occlusion of his previous bypasses (2012 and 2018). Dr. Kapila blamed the applicant's chronology of events on his PAD and history of being a smoker. The doctor opined that PAD is a progressive disease and the above the knee amputation was an expected outcome after two surgical interventions and the fact that the applicant continued to smoke. Furthermore, the applicant did not make complaints about acute limb ischemia immediately after the accident. I do not find that the pre and post-accident medical records support Dr. Kapila's opinion.

34Dr. Kapila was asked during cross-examination whether it was possible that the applicant's decreased mobility following the accident had anything to do with the progression of his PAD. Dr. Kapila testified that it is possible but not probable and in his opinion the accident had nothing to do with the need for the above the knee amputation of the applicant's right leg.

35I prefer Dr. Nasser's opinion as he was the applicant's treating vascular surgeon in the six years prior to the accident and is more familiar with the applicant's medical history and condition. In addition, Dr. Kapila conducted a paper review and never met with the applicant in person. I also find Dr. Nasser's opinion more consistent with the applicant's testimony and the pre and post-accident medical records. Finally, Dr. Nasser's opinion was also supported by both Dr. Getahun and Dr. Logan.

36Since I have determined that the accident was a necessary cause of the progression of the applicant's PAD and need for his right leg amputation, I find the applicant meets CAT status under Criteria 2. Therefore, I need not address whether he meets CAT status under Criteria 6, 7 and 8.

Is the applicant entitled to a non-earner benefit of $185.00 per week from March 17, 2018 to date and ongoing?

37I find the applicant is entitled to payment of a NEB in the amount of $185.00 per week from March 17, 2018 to date and ongoing.

38Section 12(1) provides that an insurer shall pay a 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. Economical⁵, which focuses on a comparison of the applicant's pre-and post-accident activities.

39As per the guidance outlined in Heath, the following chart provides a comparison of the applicant's pre and post-accident activities:

PRE-ACCIDENT

POST-ACCIDENT

He was not working and was collecting ODSP.

This has remained un-changed

He was not driving because his licence was medically restricted.

This has remained un-changed.

He was not sexually active

This has remained un-changed.

He was not limited in walking, sitting, or standing. Historically, he occasionally would use cane for ambulation, but it was not consistently required.

He cannot walk or stand for prolonged periods of time without the assistance of a walker or wheelchair

He was independent with self-care. He did not have any limitations with grooming, bathing, or dressing.

He has significant difficulty carrying out self-care tasks. He has difficulty bathing, grooming, and dressing his lower extremities.

He was independent with housekeeping and home maintenance tasks. He could wash floors, vacuum, do dishes, clean the bathroom, and take out the garbage. Although it would take him longer to complete tasks pre-accident, he shared in some of the interior cleaning and laundry tasks with his wife. He was independent with grocery shopping. He could mow his lawn, shovel his driveway and he enjoyed gardening. He took pride in taking care of his property and this was an activity that was meaningful to him.

He can carry out light housekeeping tasks such as washing dishes but is limited in carrying out heavier household tasks. For a period of time post-accident, he was able to use a grocery scooter/cart. After the by-pass surgery and amputation he can no longer carry out this task.

He was independent with and enjoyed cooking. He and his wife prepared turkey dinners for special occasions such as Thanksgiving and Christmas.

He tries to assist with meal preparation when he can but is significantly limited in cooking. He can make an egg sandwich.

He was not very social but had a couple of close friends and good relationships with his wife and son.

He is socially withdrawn and is snappy and irritable with his wife and son which has strained their relationships.

He enjoyed going on Sunday drives with his wife and assisting his son with his paper route.

He is no longer able to carry out these activities due to his chronic pain and lack of mobility. The vehicle was written off in the accident and they did not have the finances to buy a new car.

He did not have any issues with depression and anxiety which impacted his ability to carry out his daily activities

He suffers from depression due to the deterioration of his independence. He also lacks motivation as a result.

He did not have any significant issues with sleep.

Problems sleeping post-accident because of nightmares and physical pain resulting in daytime fatigue

40I find the changes in the applicant's post-accident activities was supported by the collateral interviews provided by the applicant's wife and son in his CAT assessments and Ms. Yull's testimony. The respondent has not provided me with any reason to doubt their credibility. I also find the applicant consistently reported his pre- and post-accident limitations to assessors. Overall, I find the evidence supports that the applicant has a complete inability to carry out a normal life as a result of his accident-related impairments. Furthermore, I find the pre- and post-accident medical evidence supports that the applicant has a complete inability to carry on a normal life as a result of his accident-related impairments.

41As already highlighted above, other than the 2014 CPP form, the pre-accident medical evidence supports that the applicant's PAD was stable. Further, there was no mention of any significant functional limitations in the medical records in the two years prior to the accident. Following the accident, the medical evidence supports that there has been a rapid decline in the applicant's ability to carry out his activities of daily living. However, I do not just attribute the applicant's inability to carry out his daily activities due to the progression of his PAD. I also find that the accident exacerbated his pre-existing chronic back pain as well as a nerve injury to his right arm. The applicant's lack of independence post-accident also resulted in a psychological impairment. Of significance, there was no evidence that the applicant had any pre-accident psychological issues. The evidence supports that the applicant has been diagnosed by both his own and various s.44 assessors with significant psychological impairments.

42The respondent denied the applicant's entitlement to a NEB relying on the IEs of Dr. Taylor, GP, and Dr. Lewis, psychologist. Overall, I do not find these IEs helpful. As a starting point, in Dr. Taylor's first report dated February 21, 2018, the doctor notes that the applicant experienced pain in his neck, low back, and had numbness in his right forearm. Dr. Taylor states that the applicant could do 50% of his pre-accident activities yet concludes that the applicant does not have any accident-related functional impairments. I find these statements contradictory. Dr. Taylor also opines that the applicant had not achieved maximum medical recovery. I do not find this opinion supported by the evidence.

43Furthermore, Dr. Taylor authored an addendum report dated July 26, 2018, in which the doctor states that there was no pre-existing medical condition that would affect the applicant's presentation. Based on the medical record before me this is not accurate. Finally, Dr. Taylor does not elaborate on the applicant's pre- and post-accident activities in discussing the applicant's entitlement to the NEB in the report. For these reasons, I give Dr. Taylor's opinion little weight.

44I also find Dr. Lewis's psychological IE equally unhelpful as the doctor failed to conduct any analysis of the applicant's pre- and post-accident activities of daily living. Dr. Lewis diagnoses the applicant with a psychological impairment, but does not discuss the impact of this impairment on the applicant's ability to carry out his post-accident activities of daily living. Dr. Lewis then concludes that the applicant does not have a complete inability to carry on a normal life as a result of his accident-related psychological impairment. For these reasons, I assign Dr. Lewis's IE little weight.

45For all of the above reasons, I find the applicant has met his onus in establishing on a balance of probabilities that he has a complete inability to carry on a normal life as a result of his accident-related impairments. Therefore, the applicant is entitled to a NEB in the amount of $185.00 per week from March 17, 2018, to date and ongoing.

Is the applicant entitled to an ACB in the amount of $1,280.51 per month from April 17, 2018 to date and ongoing?

46I find the applicant is entitled to an ACB in the amount of $888.33 per month. I will address the time period that ACBs are payable below.

47S.19 of the Schedule provides that an insurer is required to pay an ACB for all reasonable and necessary expenses incurred on behalf of an insured person as a result of an accident for services provided by an aid or attendant. A Form 1 prepared by an OT sets out the services and amount of care an individual requires as well as the monthly amount payable.

48The applicant relies on the attendant care assessment and Form 1 prepared by Arvind Gupta, OT, dated April 17, 2018, who recommended that the applicant required ACBs in the amount of $1,280.15 per month. The respondent relies on the attendant care assessment and Form 1 prepared by Vanita Tandon who determined that the applicant required zero in monthly ACBs. For the following reasons, I prefer the ACB report of the applicant's assessor as I find it more consistent with the evidence before me.

49I have given Ms. Tandon's ACB assessment and Form 1 less weight because her findings regarding the applicant's functional impairments are inconsistent with the rest of the medical evidence before me. In addition, Ms. Tandon was not able to assess the applicant's lumbar spine due to his pain and impairment and noted that the applicant had restrictions with his right ankle. She also did not evaluate the applicant's right knee. In my view, the fact that the applicant was significantly limited in standing, walking, and sitting does not align with Ms. Tandon's recommendation for zero in ACBs.

50Mr. Gupta's assessment notes that the applicant has constant pain in the middle to low back which is aggravated by prolonged sitting, standing and walking. The applicant was also experiencing constant knee pain. Mr. Gupta's assessment noted the following functional limitations:

• He is limited in is ability to walk, sit and stand for prolonged periods. He uses a cane regularly indoors and a walker outdoors. He cannot access stairs.

• He cannot lift a 7-to-8-pound bag of potatoes because of his right arm impairment.

• He is unable to squat and kneel or bend without pain.

• He is fatigued and lacks energy and motivation to carry out activities.

51I find the applicant consistently reported his functional limitations to medical assessors. I also find the applicant's limitations are as a result of his chronic back pain, right arm impairment, progression of his PAD and psychological impairment. The following chart breaks down the different levels of care and the total monthly amounts recommended by Mr. Gupta:

Level 1 Grooming: 5 minutes for toenail care x 1 a week Feeding: 30 minutes x 14 times per week = 420 Mobility/Walking = 60 minutes x 1 a week Total: 485 minutes Total Monthly Hours: 34.76 x $14.90 = $517.90

Level 2 37 minutes per week x 7 for bedroom and bathroom hygiene = 259 minutes per week Basic supervisory care: To get in and out of wheelchair =30 minutes 2 x per week = 60 minutes Lacks the ability to respond in an emergency 60 minutes x 7 = 420 minutes Total Monthly Hours: 52.96 x $11.40 = $603.76

Level 3 Bathing: 105 minutes per month Total 105 minutes per month Total Monthly Hours: 7.53 x $158.85

52Other than the amount recommended for basic supervisory care, which I will address later, I do not find the above time allotted for assistance under the different levels of care excessive. Further, I find that the applicant's accident related physical and psychological impairments have had an impact on his ability to carry out his personal care and as a result, he requires ACBs. The only amount that I do not find to be supported by the evidence at the time of the assessment was the amount recommended for basic supervisory care as it was inconsistent with Mr. Gupta's observations and functional testing.

53Mr. Gupta recommended 60 minutes a week to provide the applicant with supports to get in and out of his wheelchair and 420 minutes per week to assist the applicant with responding in an emergency. While the applicant may need this type of assistance now, at the time of the assessment Mr. Gupta notes that that the applicant was able to walk with and without using the support of the one-pointed cane and rollator walker. Therefore, I have deducted the amount for this discrepancy which reduces the hours to 18.56 per month, which results in the total payable for level 2 care in the amount to $211.58 per month. Consequently, I find the amount of ACBs recommended in Mr. Gupta's Form 1 to be partially reasonable and necessary in the amount of $888.33 per month. I will address whether the applicant has proven that the benefit has been incurred pursuant to s.3 of the Schedule.

54In order for ACBs to be payable, the applicant must have incurred the expense pursuant to s.3 (7)(e) of the Schedule To meet the definition of "incurred" the applicant must satisfy the following three criteria:

i. The applicant received the service to which the expense relates;

ii. The applicant paid the expense or promised to pay the expense or is legally obligated to pay the expense.

iii. The person who provided the service did so

a) in the course of her employment, occupation, or profession in which he or she would ordinarily have been engaged, but for the accident, or

b) sustained an economic loss as a result of providing the goods or services to the insured person.

55No evidence was submitted by the applicant to support that he incurred ACBs from April 17, 2018 to August 1, 2019. Therefore, I find he is not entitled to payment of same during that time period. The applicant submitted an invoice from Activa Healthcare which supports that he incurred ACBS in various amounts between August 2, 2019 to May 20, 2021. The applicant is entitled to monthly ACBs up to the amount of $888.33 for the incurred amounts set out in the Activa Healthcare invoice. He is entitled to ongoing ACBs in the amount of $833.33 per month, upon proof that the benefit has been incurred.

Is the applicant entitled to $3,590.01 for chiropractic treatment recommended by Tandem Health?

56The applicant is entitled to the OCF-18 in the amount of $3,590.01 for chiropractic treatment recommended by Tandem Health

57To 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.

58Despite my prompts and reminders neither party spent much time addressing the OCF-18s in dispute.

59The applicant argues that the OCF-18 for chiropractic treatment is reasonable and necessary as he suffered from ongoing pain at the time it was submitted. Further, physical treatment was helpful in alleviating his symptoms.

60The respondent argues that the OCF-18 recommending chiropractic treatment is not reasonable and necessary. It relies on the IE of Dr. Taylor, GP, in support of the denial of the OCF-18, who determined that the applicant had attained maximum medical recovery from his accident- related impairments. For the following reasons, I agree with the applicant.

61The OCF-18 dated August 28, 2018, was authored by Dr. Chakrabarti, chiropractor, and recommended 16 sessions of chiropractic treatment in the amount of $930.88; 16 sessions of manual therapy in the amount of $1,353.76; and 16 sessions of active therapy in the amount of $902.56 and $200.00 for completion of the OCF-18 for a total cost of $3,590.01. The duration of the OCF-18 was 8 weeks. The OCF-18 indicated that the applicant's symptoms of vascular claudication were worse post-accident and that he had difficulty with bending, lifting, carrying and sitting. The goal of the OCF-18 was pain reduction and increase strength and range of motion.

62I find that the evidence supports that the accident exacerbated the applicant's pre-existing chronic back pain and resulted in neck pain and a right arm impairment. Following the accident, the applicant has experienced numbness and weakness in his right arm which resulted in functional impairment. I also find the goals of pain reduction and increased strength and ROM to be a reasonable objective. Furthermore, I find that the applicant was consistent in reporting to assessors that he found past physical treatment to be beneficial in managing his pain. The case law is well established 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.

63The respondent did not make submissions that the cost of the OCF-18 is excessive. Therefore, I accept the cost of same to be reasonable.

64The respondent sent the applicant a denial dated September 18, 2018, indicating that the OCF-18 was denied based on the IE report of Dr. Taylor, general practitioner, dated January 24, 2018 (the report is actually dated February 21, 2018). In the report the doctor acknowledges that the applicant gets symptomatic improvement for a day or two after treatment. In this report, Dr. Taylor opined that the applicant had not obtained maximum recovery.

65I do not find that this IE report supports the respondent's denial of the OCF-18 as the purpose of the assessment was to address the applicant's entitlement to a NEB. In Dr. Taylor's addendum report dated July 26, 2018, he notes the applicant had obtained maximum medical recovery with no rationale or explanation for his opinion. In my view, I do not understand how Dr. Taylor came to this conclusion as he did not see the applicant in person.

66For the above-noted reasons, the applicant has met his onus on a balance of probabilities that the OCF-18 recommending chiropractic treatment is reasonable and necessary.

Is the applicant entitled to $912.81 for a home exercise program, recommended by Tandem Health?

67The applicant is not entitled to the OCF-18 for a home exercise program recommended by Tandem Health.

68This issue was identified by the applicant as an OCF-18 for chiropractic treatment. The applicant did not address this issue at all during the hearing or make submissions on why the OCF-18 is reasonable and necessary.

69The applicant has not met his onus on a balance of probabilities in proving that the OCF-18 for a home exercise program is reasonable and necessary.

Is the applicant entitled to $23, 388.04 for CAT assessments recommended by Alliance Diagnostics in an OCF-18 denied June 10, 2021?

70I find the applicant is entitled to the OCF-18 in the amount of $23,388.04 for the CAT assessments recommended by Alliance Diagnostics.

71Section 25(1) 5 of the Schedule provides that an insurer shall pay for reasonable fees for the determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose. This is to be read in combination with s. 25(5)(a), which limits the cost of any one assessment or examination to $2,000.00. The applicant bears the onus of proving on a balance of probabilities that each item in a treatment and assessment plan is reasonable and necessary for the purpose of applying for a CAT determination under s. 45.

72The following is a breakdown of the OCF-18 dated May 19, 2021, authored by Dr. Getahun recommending a multi-disciplinary CAT assessment:

CAT impairment executive summary $2,000.00 Comprehensive medical file review $2,000.00 Orthopaedic assessment $2,000.00 Functional abilities assessment $2,000.00 Neurological assessment $2,000.00 Psychiatry assessment $2,000.00 Psychiatry assessment $2,000.00 OT in-home assessment $2,000.00 OT situational assessment $2,000.00 Collateral interviews $2,000.00 Completion of OCF-18 $200.00 Completion of OCF-19 $500.00 Transportation to appointments $1,408.00 OT travel time $1,197.00 Total: $23,488.04

73The applicant argues that the multidisciplinary CAT assessments are reasonable and necessary as there was a material change of circumstance due to the above the knee amputation of his right leg and new assessments were required to address new criteria for CAT status. The applicant relies on the Tribunal's decision in JA v. Aviva Insurance Company of Canada (18-0002124/AABS) in support of his position that the CAT rebuttal assessments are reasonable and necessary. In that decision, the adjudicator determined that the insured person required rebuttal assessments to be on equal footing with the respondent. Further, denying the applicant's entitlement to rebuttal reports would not be in the spirit of the consumer protection legislation.

74The respondent sent the applicant an EOB dated June 10, 2021 denying the multi-disciplinary CAT assessment. Under reason for denial, it stated "see additional comments". There were no additional comments attached to the EOB submitted by the respondent or anywhere in the document. In its closing submissions the respondent argues that the OCF-18 for the rebuttal reports is not reasonable and necessary because the amputation was not accident related. I agree with the applicant for the following reasons.

75I think it is important to highlight that this issue was defined by the parties as CAT rebuttal reports, but what the applicant is really seeking is CAT assessments in support of a new OCF-19 seeking CAT status under different criteria. I find new assessments are reasonable and necessary to address whether the applicant met CAT status under this new Criteria.

76In addition, the respondent conducted CAT assessments in response to the submission of the new OCF-19. Therefore, I agree with the rationale highlighted by the Tribunal in JA v. Aviva that the applicant should be given the opportunity to be on equal footing with the respondent.

77The respondent did not make any submissions regarding the cost of the OCF-18 being excessive, therefore, I accept the cost of same to be reasonable.

78The applicant has met his onus in proving on a balance of probabilities that the OCF-18 for multidisciplinary CAT assessments in the amount of $23,488.04 is reasonable and necessary.

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

79The applicant is entitled to interest on overdue payment of benefits.

80Section 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 the applicant is entitled to the various benefits he is also entitled to the payment of interest on the amounts overdue pursuant to section 51(2). He is not entitled to payment of interest on the OCF-18 for the home exercise program in the amount of $912.81, as I have determined that it is not reasonable and necessary.

ORDER

81For all of the above-noted reasons, I make the following order:

a) The applicant has sustained a CAT impairment as defined by the Schedule.

b) The applicant is entitled to a NEB in the amount of $185.00 per week from March 17, 2018 to date and ongoing.

c) The applicant is entitled to an ACB in the amount of $888.33 per month. ACBs are payable in the incurred amounts between August 2, 2019 to May 20, 2021 and on an ongoing basis upon proof that the benefit has been incurred.

d) The applicant is entitled to the OCF-18 for chiropractic treatment in the amount of $3,590.01 recommended by Tandem Health.

e) The applicant is entitled to $23,388.04 for CAT assessments recommended by Alliance Diagnostics.

f) The applicant is not entitled to the OCF-18 in the amount of $912.81 for a home exercise program recommended by Tandem Health.

g) The applicant is entitled to interest on the payment of benefits that are overdue.

Footnotes

1. 1This issue was incorrectly listed as an OCF-18 for chiropractic treatment in the case conference report and order.
2. 2American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, Ch.14.7: Mental and Behavioural Disorders.
3. 3Ibid, pg. 301, Table 1
4. 4Sabadash v. State Farm et al., 2019 ONSC 1121, paras 31 and 39
5. 5Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (CanLll) at para.50.