Day v. BelairDirect Insurance Company, 2022 CanLII 84685

Citation: Day v. BelairDirect Insurance Company, 2022 ONLAT 20-005063/AABS

Licence Appeal Tribunal File Number: 20-005063/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:

Morag Day

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION

ADJUDICATOR:

Deborah Neilson

APPEARANCES:

For the Applicant:

Morag Day, Applicant

Jeffrey Prezler, Counsel Aron Zaltz, Counsel

For the Respondent:

Heather Morrow, Claims Representative

Peter Pietraszek, Counsel Marni Miller, Counsel

Court Reporter:

Breanna Clancy (Network)

HEARD: by Teleconference:

March 7 to 11, 2022

REASONS FOR DECISION

BACKGROUND

1The applicant, Morag Day, was involved in a single vehicle automobile accident on April 7, 2016 when she swerved to avoid an animal on the road and rolled her vehicle. She sought benefits from her insurer, the respondent Belair Direct Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective - September 1, 2010 (“Schedule”). The applicant was denied medical benefits, cost of examinations and catastrophic impairment determination by the respondent, and the applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant sustained a right lateral tibial plateau fracture from the accident, which was treated surgically with subsequent removal of the hardware. She also sustained a left fifth metacarpal fracture of the left hand. She applied to the respondent for catastrophic impairment determination and for chiropractic treatment, psychological treatment and the cost of examinations. The respondent and the applicant agree that she has a class 4 marked impairment due to a mental or behavioural disorder. The respondent denied that the applicant’s mental or behavioural disorder was caused by the accident and submitted that the accident did not cause any change to her pre-accident psychological impairments.

3I find that the applicant is catastrophically impaired as a result of an impairment she sustained in the accident. She is entitled to attendant care benefits and some of the cost of examinations, medical, and rehabilitation benefits claimed.

ISSUES

4The issues in dispute are as follows:¹

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

2. Is the applicant entitled to attendant care benefits of $6,000.00 (less $81. per month from April 2, 2021 to date) and, if so, how much has been incurred?

Counseling

3. Is the applicant entitled to $8,361.08 ($9,817.16 less $1,456.08 approved) for social work services proposed by Harinder Mrahar of Mediwise Health Care in a treatment plan dated January 25, 2021?

4. Is the applicant entitled to $4,239.74 for psychological services proposed by Harinder Mrahar of Mediwise Health Care in a treatment plan dated February 17, 2021?

Chiropractic Treatment

5. Is the applicant entitled to $4,239.74 for chiropractic services proposed by Alexander Kipershlak by Mediwise Health Care in a treatment plan dated November 13, 2020?

6. Is the applicant entitled to $4,332.32 for chiropractic services proposed by Kipershlak, Alexander of Mediwise Health Care in a treatment plan dated January 27, 2021?

7. Is the applicant entitled to $4,688.60 for chiropractic services proposed by Mediwise Health Care in a treatment plan dated April 19, 2021?

Assistive Devices

8. Is the applicant entitled to $2,296.80 for assistive devices proposed by Dr. Bohdan Osoba, chiropractor of Mediwise Health Care, in a treatment plan dated April 20, 2021?

Cost of Examinations

9. Is the applicant entitled to $1,804.07 for an occupational therapist’s cognitive assessment proposed by Dr. Doreen Payan, chiropractor from Q Medical, in a treatment plan dated March 13, 2019?²

10. Is the applicant entitled to $2,468.00 for an occupational therapy assessment³ proposed by Dr. Payan in a treatment plan dated October 8, 2019?

11. Is the applicant entitled to $2,486.00 for an attendant care assessment proposed by Dr. Payan in a treatment plan dated April 1, 2021?

12. Is the applicant entitled to $1,200.00 for a nutrition assessment proposed by Dr. Osoba in a treatment plan dated January 21, 2021?

ANALYSIS

A. Catastrophic Impairment

5Catastrophic impairment is defined in section 3.1 of the Schedule. The applicant submitted that as a result of her accident impairments, she has a mental or behavioural disorder that qualifies her for a determination under the Schedule of catastrophic impairment. The applicant’s accident occurred prior to the revisions to the definition of catastrophic impairment effective June 1, 2016. Therefore, the definition under the Schedule prior to June 1, 2016 applies.⁴ This means the applicant must prove on a balance of probabilities that the accident caused a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder in at least one of the following spheres or aspects of function:

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 Social functioning Concentration, pace and persistence Adaption in the workplace⁵

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

6The applicant relied on the report and testimony of Dr. Konstantine Zakzanis, neuropsychologist. He and his psychometrist, Thomas Palantzas, assessed the applicant over four days from December 13, 2019 to June 10, 2020.⁶ Dr. Zakzanis’ opinion was that the applicant sustained a marked class 4 impairment in her activities of daily living and her adaption to work and a class 3 moderate impairment in her social functioning and concentration, persistence and pace.

7Dr. Monte Bail, psychiatrist, started treating the applicant in 2014 for depression, anxiety and polysubstance dependence. As part of his assessment of the applicant under s.25 of the Schedule, Dr. Zakzanis wrote to Dr. Bail and asked him whether the accident exacerbated the applicant’s pre-existing mental behavioural symptomology. Dr. Bail responded on June 28, 2020 reporting that the applicant’s chronic pain and decreased range of motion from the accident exacerbated her anxiety and panic disorder. She developed severe insomnia and her ongoing pain and decreased range of motion made her too anxious to be functional in any capacity in work. She developed a functional impairment with her driving, which Dr. Bail believed had resolved by September 2017. Dr. Bail wrote that she developed psychiatric functional impairments from her exacerbated dysphoria, anxiety, and mood problems, but did not state what those functional impairments were.

8The applicant testified that she had issues with depression and anxiety that, prior to the accident, caused her to go on medical leave in 2013 from her work as a personal support worker. The applicant also testified that she stopped work in 2013 because she had issues with changes in administration at work combined with the estrangement of her son over his abandonment of his girlfriend and baby. However, her psychological issues did not affect her personal care, socialising, travelling, hobbies, family relations, or her housekeeping duties. She also testified that she was ready to return to work when the accident happened.

9The respondent submitted that the applicant was experiencing the same issues prior to the accident as she was after. She was diagnosed with bipolar disorder. The clinical notes and records show that she had issues with personal care, socializing and with grocery shopping prior to the accident. Further, there was no return to work plan in place with the applicant’s employer when the accident occurred. Rather, the clinical notes and records of the applicant’s pre-accident treatment providers indicate that she would not be returning to work with her pre-accident employer. While I accept that the applicant had issues prior to the accident, her records also support that the applicant had undergone improvements and was contemplating rejoining the workforce in some capacity.⁷ Dr. Bail advised the applicant’s long term disability insurer, Manulife, on May 15, 2015, that she would not return to work for her employer, but she would consider working as a private PSW or in sales.⁸

10The applicant testified that, since the accident, every day is a pyjama day. She is embarrassed when people find her not dressed to meet the demands of the day. She finds that her concentration and attention are significantly impaired. She thinks about suicide but has not acted in a suicidal manner. She is not eating very well and initially lost 12 pounds. She has not regained the weight. She is not exercising. She used to enjoy grocery shopping but now does not wish to leave the house. Previously when she was stressed or unhappy she would like to cook, but she has lost this pleasure.

11Dr. Bail’s pre-accident records indicate that the applicant was still socializing with a neighbor and her daughter, she was going out to the grocery store, although she had some anxiety involved in it. However, in April 2015, Dr. Bail filled out a Canada Pension Plan disability benefit (“CPP”) application stating that she had a generalized anxiety disorder, panic attacks with agoraphobia, recurrent major depressive disorder, and probable bipolar disorder. He stated that she had a lifelong history of recurrent depression, anxiety or panic attacks and mood swings.

12The applicant was questioned about Dr. Bail’s clinical notes and records and her levels of function that he recorded. She disagreed with some of his records but agreed that her level of function was variable. I find that the applicant had reasonable explanations for why Dr. Bail’s records at times appeared to contradict the applicant’s testimony. I found that she was credible, but was a poor historian, which is not surprising given her complaints of memory issues. She tried to explain that a number of Dr. Bail’s records of what the applicant disclosed to him were not accurate as she only ever saw him for 10 minutes at a time. This is contrary to the information she gave to Dr. Lubbers or Dr. Luczak that her meetings with him were about 30 minutes long. However, she told Ms. Sesel, occupational therapist, that she was not always entirely candid and forthcoming regarding the severity of her symptoms during appointments with Dr. Bail because she has been under his care for a long time, and she did not want to upset or disappoint him.⁹

13Where her testimony conflicts with the medical records, I prefer the medical records, given that they were prepared contemporaneously and that the applicant has a poor memory as testified to by her and as determined by Dr. Zakzanis’ testing. Having said that, I also find that the applicant is somewhat stoic and was not prone to disclosing how much pain she experienced in the past and still experiences as a result of her musculoskeletal injuries. I accept her testimony where it was corroborated by the testimony of her husband, John Day, both of whom I found to be honest and credible. The applicant’s testimony about her function and the frequency of her activities was corroborated with the collateral interviews recorded in Dr. Zakzanis’ report from the applicant’s neighbor, her son, husband, daughter, and friend. They all confirmed that, although the applicant had issues before the accident, aside from work, she was functioning adequately. They all support that she no longer functions adequately and that she drinks alcohol excessively every day.¹⁰

14The respondent relied on the report and testimony of Dr. Ralph Lubbers, psychologist, who conducted an assessment under s.44 and s.45 of the Schedule at the respondent’s request (“IE”). His opinion was that the applicant has a class 4 marked impairment in adaption to the workplace, but that she also had a class 4 marked impairment before the accident. He did not provide an analysis of why he found she had a marked 4 impairment but claimed that it was the same pre-accident as it was post accident because the applicant was doing the same things pre-accident that she was post accident.

15The respondent submitted that I should give little weight to Dr. Zakzanis’ opinion because he relied on a report from Dr. Bail that should be given no weight. The respondent submitted that Dr. Bail’s report was too vague, as Dr. Bail did not provide timelines, opine on the magnitude of the exacerbation, or the time or length of the exacerbation. He only provided an opinion on the applicant’s symptomology, not function. The respondent submitted that it was not satisfactory for Dr. Zakzanis to base his opinion on Dr. Bail’s June 2021 report without the benefit of Dr. Bail clarifying or speaking to it further. Dr. Bail used past tense in describing the applicant’s ability to function with respect to work, and her stress with insurers. I can give very little credence to the respondent’s submissions about Dr. Zakzanis’ reliance on Dr. Bail’s June 2021 report since the respondent failed to address those limitations with Dr. Zakzanis when it cross-examined him.

16The respondent submitted that the only opinion I should rely on from Dr. Bail is about the applicant’s driving phobia and that it resolved in 2017. I disagree. Dr. Alex Luczak, psychiatrist, did an IE assessment of the applicant in 2018 and diagnosed her with a Specific Phobia-Situational Type-travelling in a vehicle as a result of the accident.¹¹ The respondent submitted that I should give little weight to Dr. Luczak’s diagnosis because he did not assess the driving phobia with catastrophic impairment in mind. I disagree. He is a psychiatrist who provided more thorough comments on the applicant’s ability to drive than Dr. Bail did. Further, Dr. Luczak was assessing the applicant for entitlement to income replacement benefits. Whether the applicant could engage in any occupation is relevant to whether she would adapt or deteriorate in a work like setting.

17I also disagree with the respondent’s submission that I should give little to no weight to any other opinion expressed by Dr. Bail. Dr. Bail recorded the applicant’s progress in his clinical notes. The applicant’s major depressive disorder was in remission as of January 22, 2016.¹² She was getting out of the house, walking, going to the mall or going for drives as of March 11, 2016.¹³ This is supported by the testimony of the lay witnesses and is to be contrasted with the reduction in performing these activities post-accident as recorded by the occupational therapists and the applicant’s social worker assessment.¹⁴

18I prefer Dr. Zakzanis’ opinion over Dr. Lubbers’ opinion and give it more weight for the following reasons. Dr. Lubbers did not ask the applicant if she was doing her post-accident activities the same way or at the same frequency as she did pre-accident. Although Dr. Lubbers testified that he read Dara Beacock’s report, he did not know if there were changes in the frequency of the applicant’s showering, dressing, driving, or grocery shopping. Ms. Babcock is an occupational therapist who conducted an IE assessment of the applicant as part of a multidisciplinary catastrophic impairment assessment. She reported that the applicant was not doing any of those activities as often as she did before the accident. She reported that the applicant was somewhat surprised to realize upon questioning that she often stayed in her pajamas over a period of up to five days at times. Nor did Dr. Lubbers comment on Dr. Bail’s letter to Dr. Zakzanis¹⁵ on the effect of the accident or on the collateral statements of the applicant’s family, neighbors and friends, despite his having those documents and testifying they were relevant.

19Dr. Luczak reported that the applicant’s psychological problems are superimposed on chronic pain, primarily in her right knee, neck, and back. This contributes to disturbed sleep, which is treated with Trazodone. His opinion was that the new psychological diagnosis as a result of the accident was the Specific Phobia and testified that it would contribute to the applicant’s isolation and subsequently her depression. Dr. Luczak also testified that a driving phobia aggravates anxiety. His opinion is more in keeping with Dr. Zakzanis’ and Dr. Bail’s opinions that the accident exacerbated the applicant’s pre-accident condition.

20I further prefer Dr. Zakzanis’ opinion over Dr. Lubbers’ because Dr. Lubbers reported in his catastrophic IE that the applicant’s diagnosis pre-existed the accident, then wrote a following IE report on a treatment plan that recommended psychotherapy based on the applicant’s accident-related impairments. In the second IE report, Dr. Lubbbers reported that psychotherapy was reasonable and necessary to address any accident-related contribution to her diagnosed condition.¹⁶ His second IE report is in keeping with Dr. Bail’s and Zakzanis’ opinions that the accident exacerbated the applicant’s pre-accident condition.

21The respondent relied on Dr. Lubbers’ evidence that pointed to comments in the clinical notes and records that the applicant was off medication and doing better after her release from her accident-related surgery in 2016. Although the applicant may have been doing fine psychologically for a period of time after the accident, I find the fact that she was off her psychiatric medication for a period of time because of her surgery would have contributed to a decline in her psychological health. I also accept Dr. Zakzanis’ testimony that the pain she was experiencing from the hardware in her leg, which resulted its removal in 2017, together with a right knee arthroscopy and partial lateral meniscectomy in 2017, contributed to a decline in the applicant’s psychological health. The applicant saw a brief improvement in her psychological health in late 2018 when she started taking Epival. However, she had to discontinue using it because of its side effects.¹⁷

22Dr. Bail recorded on June 6, 2019 that “Overall, it is now evident that we are at one of the best states that we have ever been in with respect to Ms. Day.”¹⁸ However, in 2019, the applicant developed increased pain affecting her right lower extremity, and she saw her orthopaedic surgeon, Dr. Collings, September 2019. He found the applicant developed very slight valgus deformity and she likely had an acute on chronic fracture. He also saw a new fracture line through her tibial plateau but could not tell exactly how old it was. Therefore, while there may have been a brief improvement in 2019, I find that, after hearing the testimony of the witnesses and reviewing the exhibits, there was a subsequent deterioration in the applicant’s psychological health because of her accident injuries.

23The respondent submitted that an adverse inference should be drawn from the applicant’s failure to produce her long-term disability (“LTD”) file, her CPP disability file, Dr. Singh her family physician as a witness, and Dr. Bail her treating psychiatrist as a witness.

24For the sake of efficiency the applicant filed the clinical notes and records of both Dr. Singh and Dr. Bail rather than call them as witnesses. The respondent called Dr. Singh to testify. He had to refer to his clinical notes and records to answer any questions put to him and, accordingly, his testimony did not provide any insight other than to clarify what his writing was on some forms. Therefore, I am unable to draw any inference that his evidence was being withheld because it was prejudicial to the applicant to produce it.

25Dr. Bail was apparently summonsed by the respondent who advised that it was calling Dr. Bail to testify. The day before Dr. Bail was to testify, the respondent advised that Dr. Bail would not be testifying as he was away. I was not advised that the respondent made a request to the Superior Court for a bench warrant when Dr. Bail did not appear. Nor did the respondent seek an adjournment of the hearing. Accordingly, I am unable to draw an inference that the applicant failed or refused to produce evidence and that the reason was because the evidence was detrimental to her position. The fact that the applicant and the respondent expected a catastrophic impairment file involving musculoskeletal and psychological impairments to be concluded in 5 days rather than ten or more is a strong indication that one if not both of the parties anticipated taking advantage of the evidentiary rule at the Tribunal that allows for the admission of hearsay evidence by filing records or reports, just as the applicant did. In the absence of anything to counter that inference, I am unable to draw an inference that the applicant intended to hide information detrimental to her case by not calling Dr. Bail.

26With respect to the file of the applicant’s long-term disability (“LTD”) carrier and CPP disability file, the respondent’s case conference summary ¹⁹ had set out a broad and general request for the collateral benefit files of all insurers and the employment files of all employers from one year pre-accident. However, the mere fact that a request was made in a case conference does not mean that the other party was trying not to disclose it. There must be something more to indicate that a party is not willing to take any steps to obtain documents from third parties or to produce documents. For example, a letter either refusing to produce the document or agreeing to produce it. I have no information on whether there was a dispute about who would pay for the documentation, whether it would be obtained by respondent upon receipt of the applicant’s authorisations, or whether the parties were going to address production requests at a later date and never got around to it. All of this is speculation.

27The respondent asked me to find that the case conference Order dated April 9, 2021 was an order for production of those documents. That Order states that the parties agreed they shall exchange all documentation by January 31, 2022. The case conference Adjudicator did not specify if the documents were those requested by the other party or documents that either party intended to rely on at the hearing. The respondent did not seek an order for production of the documents at the resumption of the case conference on September 9, 2021 or at any of the motions that were heard afterward to add issues. Accordingly, without something more than the case conference summary, all I can do is speculate on whether the applicant would have made any efforts to produce the documents if there was some indication that the respondent thought the documents were important enough to get a production order for them. However, there was no evidence that would allow me to draw an inference that the applicant withheld her LTD file and CPP disability file because they contain evidence detrimental to her case.

28I find, for the reasons given, that the applicant’s psychological condition is worse now than it was prior to the accident, I accept that she was fragile to begin with and that the accident has exacerbated her condition.

1. Work Like Setting

29Deterioration or decompensation in work like settings addresses failures to adapt to stressful circumstances that cause the individual either to withdraw from the situation or to experience signs and symptoms and difficulties with activities of daily living, social relationships, and concentration, persistence, and pace. This should include a description of any decompensation at work, which might involve decisions, attendance, schedules, completing tasks, interactions with supervisors, and interactions with peers.²⁰

30Dr. Bail recommended on March 11, 2016 that the applicant obtain a volunteer position.²¹ Dr. Lubbers determined that the applicant sustained a class 4 marked impairment in adaption to the workplace. If I were to accept the respondent’s submission that the applicant was the same pre-accident as she was post-accident with respect to adaption to the workplace or a work like setting, I would have to find that the applicant is presently capable of working as a volunteer despite having a class 4 marked impairment, an impairment level that significantly impedes useful functioning. Because he was treating the applicant, I find that Dr. Bail was in the best position to know what she was functionally capable of prior to the accident and that an ability to engage in volunteer work requires an ability to commit to attending the workplace, completing tasks and interacting with others. I find that Dr. Lubber’s determination that the applicant had similar complaints pre-accident as she did post-accident ignores her level of function pre-accident compared to post-accident.

31Based on the consensus of Dr. Lubbers and Dr. Zakzanis, I find that the applicant has a marked class 4 impairment in her adaption to the workplace or a work like setting. I find that based on the evidence of Dr. Bail, she was able to function at a higher-level pre-accident than she was post-accident. Accordingly, I find that the applicant has satisfied her onus to prove on a balance of probabilities that, but for the accident, she would not have a marked class 4 impairment in her adaption to work or a work like setting. For these reasons, I find that she sustained a catastrophic impairment as a result of the accident.

2. Activities of Daily Living

32Activities of daily living include adaptive activities, such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring for self, grooming, using the telephone and directory, using the post office, and working.²²

33The applicant is required to show a marked class 4 impairment in only one sphere of activity to for a catastrophic impairment determination. Given that I have determined the applicant sustained a marked class 4 impairment in adaption to the workplace, I need not address this sphere of activity.

3. Social Functioning

34Social functioning addresses the ability to get along with others, including family members, friends, neighbors, grocery clerks, landlords, and others of the public. Social functioning in work situations may involve responding appropriately to persons in authority and cooperative behavior toward coworkers.²³ Given that I have determined the applicant sustained a marked class 4 impairment in adaption to the workplace, I need not address this sphere of activity.

4. Concentration Persistence Pace

35Concentration, persistence, and pace refer to the patient's ability to sustain focused attention long enough to permit the completion of everyday tasks in the workplace or home. Describe deficiencies in concentration, persistence, and pace that have been observed at work or in work like settings. This should include relevant information from the mental status examination and from psychological testing. ²⁴

36Given that I have determined the applicant sustained a marked class 4 impairment in adaption to the workplace, I need not address this sphere of activity.

B. Attendant Care Benefits

37The respondent is required to pay for all reasonable and necessary expenses that are incurred by or on behalf of the applicant as a result of the accident for services provided by an aide or attendant. The monthly amount of attendant care required is determined in accordance with an Assessment of Attendant Care Needs Form 1 (“Form 1”).²⁵ The applicant advised at the outset of the hearing that she has not incurred any attendant care expenses. However, she was seeking a determination that the monthly amount of attendant care that she requires under a Form 1 is $6,000.00 per month.

38The applicant relied on the report and Form 1 of Krishia Go, occupational therapist, dated April 2, 2021.²⁶ Ms. Go determined that the applicant required assistance once per week to dress and undress and to apply her prosthetics and orthotics once per week. However, she did not allot any time to these activities. Ms. Go recommended assistance for the applicant‘s makeup, hair grooming, toenail grooming, and 60 minutes per day in preparing serving and feeding her meals. She also recommended assistance in cleaning the bathroom, making her bed, laundering clothing, and 60 minutes per day in ensuring comfort and safety in her environment. Ms. Go recommended 16 hours per day of supervisory care and 30 minutes per day of assisting the applicant with her exercise program.

39The applicant advised Dara Beacock and Erin Sesel that she was capable of doing her personal care, including showering dressing and cooking, and cleaning. However, she did not engage in these activities consistently because of motivation, fatigue and frustration. She reported to Ms. Sesel that she has been losing her balance and falling without warning.

40Ms. Sesel found that the applicant displayed good decision-making abilities and her basic problem-solving abilities were functional. The applicant reported that she is able to cook, clean, and do laundry, but does not engage in those activities on a consistent basis due to motivation and fatigue. Further, she will forget steps or make errors when engaging in those activities. She is capable of doing her personal grooming but does not do it as often due to a lack of motivation and fatigue.

41The respondent relied on the Form 1 and IE report of Andy Beecroft, occupational therapist, who determined the applicant required no more than $81.35 attendant care per month for toenail care, dressing and undressing the lower body three times per week, cleaning the washroom after use 4 times per week, and changing bedding once per week. The applicant reported to Mr. Beecroft that she was able to perform most grooming tasks independently and was able to perform some of her pre-accident housekeeping activities. The applicant scored 23 out of 30 on the Montreal Cognitive Assessment, placing her below the normal range of 26/30 for cognitive function. Despite this, Mr. Beecroft determined that she was able to exit her home as needed and had the cognitive capacity and attention to tasks to obtain support. Accordingly, he determined that the applicant did not require any supervisory care.

42I accept Mr. Beecroft’s opinion for not recommending supervisory care as he provided reasons for why it was not needed, and his opinion was supported by Ms. Sesel’s findings. The applicant was capable of exiting the home if needed and has adequate cognition to obtain support in an emergency situation if necessary. I was provided with no reason why Ms. Go recommended 16 hours of supervisory care other than the applicant required a substantial amount of activity activation in dressing, hygiene and self care tasks. However, Ms. Go already recommended attendant care for these categories and to do so again under the guise of supervisory care is a duplication. Ms. Go also reported that the applicant requires emotional support because the triggers to her post traumatic stress disorder are unpredictable. This reason does not address whether the applicant lacks the ability to respond to an emergency or needs custodial care due to changes in her behaviour. There was no evidence that the applicant is at risk of suicide. Accordingly, I find that supervisory care is not reasonable or necessary.

43Ms. Go provided no explanation for why one hour per day of comfort was recommended. Without some explanation for the reason this was recommended, I am unable to find that it is required.

44I find that Mr. Beecroft did not account for the applicant’s fatigue and motivation with respect to the recommendations made by Ms. Go. Nor did he comment on Ms. Go’s recommendations or why he did not endorse them. His recommendations were based only on the applicant’s physical and cognitive function. However, Ms. Sesel reported that from a psycho-emotional perspective, the applicant reported that, while she does continue to perform most self-care tasks independently, she now showers and changes her clothing less frequently, and she completes personal grooming tasks less often in relation to poorer energy and motivation.²⁷ Except for the supervisory care, Ms. Go’s recommendations address the motivational issues reported by both Ms. Beacock and Ms. Sesel.

45Ms. Go provided no explanation for why a daily check to ensure the applicant’s assistive devices were safe is required. The applicant no longer uses a cane and, given that she is able to follow the instructions in recipes to cook, it is not clear why she would be unable to follow instructions for inspecting her devices when she uses them.

46I find that it is reasonable for the applicant to have assistance in co-ordinating attendant care based on Ms. Go’s determination that the applicant lacks motivation to perform daily routines and often forgets appointments.

47Ms. Go’s recommendation for assistance with exercising is a duplication of the chiropractic treatment plans in issue. Once her treatment plans are completed, however, the assistance with exercise recommended by Ms. Go would be reasonable at the rate of five times per week that has been recommended by her chiropractor. I was provided with no reasons why Ms. Go thought the applicant requires exercise every day instead of five days per week.

48I find that the applicant is entitled to the attendant care recommended by Ms. Go, except for the 16 hours per day of supervision, the one hour of comfort per day, and checking the safety of her devices or exercise while she is receiving chiropractic treatment. Otherwise, Ms. Go’s recommendations for attendant care, whether actually assisting the applicant or queuing her, are reasonable. For these reasons, I find that the applicant is entitled to the following attendant care:

Level of Care

Type of care

Applicant’s entitlement per week

1

dress lower body

15

1

undress lower body

15

1

cosmetics: applies makeup as desired or required

70

1

brushes hair

35

1

Toenails

10

1

assists prep, serving or feeding meals

420

1 total

565

2

cleans tub/shower after use

40

2

changes bedding makes bed

35

2

ensures comfort, safety and security in this environment

10

2

Hang clothes sort for laundry

30

2

lacks the ability to respond to an emergency or needs custodial care due to changes in behaviour

0

2

Assistance coordinating care

60

2 total

235

3

assists applicant with prescribed exercise/stretching program

150 (5 x per week)

3

ensures prosthetic devices and assistive devices are safe and secure

0

3 total

150

Part 1: 565 minutes per week = 40.49 hours/month²⁸ x $13.19/hour = $534.09

Part 2: 235 minutes per week = 16.84 hours/month x $11.25/hour = $189.47

Part 3: 150 minutes per week = 10.75 hours/month x $19.35/hour = $208.01

Total = $931.57 per month

49Accordingly I find that the amount of attendant care that is reasonable and necessary for addressing the applicant’s needs as a result of the accident is $931.57 per month. As the applicant has admitted that she has not incurred any attendant care expenses to date, no attendant care is payable up to the date of the hearing.

C. Medical and Rehabilitation Benefits

50Under s.15 of the Schedule, the respondent is required to pay for all reasonable and necessary expenses incurred by the applicant as a result of the accident for chiropractic and psychological services. Under s.16 of the Schedule, it is required to pay for all reasonable and necessary counselling expenses incurred by the applicant undertaken for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the applicant’s reintegration into her family, the rest of society and the labour market. The applicant bears the onus of proving on a balance of probabilities that any claimed medical and rehabilitation expenses are reasonable and necessary.

51The applicant submitted that reasonable and necessary means the treatment will restore the applicant’s function and the goals are reasonable and can be met. Other criteria to be considered are whether the overall cost, including the frequency and number of sessions, of achieving the treatment plan goals is reasonable. ²⁹

1. Counseling

52Neither the applicant nor the respondent were able to identify a treatment plan with respect to the applicant’s claim for $4,239.74 for psychological services from Mediwise Health Care in a treatment plan dated February 17, 2021 that was listed on the application. Accordingly, the claim for this item is dismissed.

53The applicant is seeking entitlement to $8,361.08 ($9,817.16 less $1,456.08 approved) for social work services proposed by Harinder Mrahar of Mediwise Health Care in a treatment plan dated January 25, 2021. The recommended treatment was for 40 one and a half hour sessions. The respondent relied upon the IE report of Dr. Lubbers dated May 21, 2021 to deny most of the treatment plan.³⁰ Dr. Lubbers reported that he had a progress report on the applicant’s treatment from Rebecca Ramlochan, social worker, between November 23, 2020 and February 4, 2021. Ms. Ramlochan’s report discussed various goals of a new treatment plan but did not comment on the nature of the issues discussed in psychological treatment, the applicant’s adherence to treatment and the recommendations, or any specific gains made in the psychotherapy provided to date. Without that information, Dr. Lubbers was only willing to find that 10 weekly one-hour sessions were reasonable and necessary.

54I accept Dr. Lubbers’ reasons for limiting the number of treatment sessions and the length of each session. The treatment plan increased the length of each session by 30 minutes from the previous treatment plan³¹ without providing any reason for the increase. Nor was any reason given for why 4 sessions per week were required or how the social worker counselling was assisting the applicant. Without some explanation for the increase in time and frequency, I am unable to find that 40 one and a half hour sessions are reasonable or necessary.

55I find that the goals of the treatment plan are reasonable and necessary for addressing the applicant’s accident impairments. However, there was no evidence before me as to why the cost of the treatment plan was double the amount of a previous plan. I have compared the social work counselling treatment plan in issue with a previous treatment plan prepared by Dr. Mrahar for social work counselling. The previous treatment plan dated November 4, 2020 was for $135.00 per one-hour social worker counselling session provided by Baia Luminita for 20 sessions plus 30 minutes planning each of the 20 sessions.³² The respondent in that case approved an hourly rate of $112.22 per hour for the social worker.

56The January 25, 2021 treatment plan proposed a different social worker, Ms. Ramlochan, to provide the services and at an increased rate, for an increased time and double the number of sessions. Neither treatment plan explained what the planning services were for or why they were necessary.

57According to the Professional Services Guideline,³³ the parties are to negotiate the fee for a registered health professional whose fee rate is not listed. The hourly fee for registered social workers such as Ms. Ramlochan is not listed. Ms. Ramlochan is a registered social worker. However, I heard no submissions on what a reasonable hourly fee is for her. According to the respondent’s letter dated May 29, 2021, it was willing to pay $99.75 per hour³⁴ for Ms. Ramlochan’s services. Given that the respondent approved the November 4, 2020 treatment plan at $112.22 per hour for an unregulated social worker,³⁵ I am unable to accept $99.75 per hour is a reasonable rate for a regulated social worker. However, by proceeding with the psychotherapy from Ms. Ramlochan, in the absence of any evidence of negotiation on her fees or that some other amount is recommended by the College of Social Workers, I find that the applicant agreed to the hourly fee initially proposed by the respondent of $112.22 per hour. Accordingly, the applicant is entitled to ten sessions of social worker counselling at $112.22 per hour. Based on what the respondent approved, this means $1,580.20 is payable. The applicant’s claim for the remainder of the treatment plan is dismissed.

Chiropractic Treatment

58A factor to consider in determining the reasonableness and necessity is whether the treatment results in the temporary relief of pain that allows more function or a reduction in pain medication.³⁶ I find this to be a particularly important factor in this case because the applicant has a history of substance abuse issues.

59The applicant submitted that all of the chiropractic treatment plans were reasonable and necessary because one of the goals of all of them is to provide pain relief.

a) November 13, 2020 Treatment Plan

60The applicant is seeking entitlement to $4,239.74 for chiropractic services proposed by Dr. Alexander Kipershlak, chiropractor, in a treatment plan dated November 13, 2020.³⁷ The treatment plan proposed functional exercises for strengthening of the injured areas based on a rehabilitation program provided by Dr. Kipershlak virtually twice per week for nine weeks of one hour sessions at $135.36 per hour plus yoga twice per week for nine weeks at $89.07 per session provided by Anna Schneider, a non-regulated provider.

61The applicant submitted that the treatment is payable under s.38(11) of the Schedule because the medical reasons given in the denial letter after a catastrophic insurer’s examination was conducted were not valid.

62The respond advised the applicant on April 21, 2021 that the treatment plan was denied because Dr. Greg Jaroszynski, orthopaedic surgeon, had determined that there was no musculoskeletal impairment for which the treatment plan would be considered reasonable and necessary. Dr. Jaroszynski reported that his reasoning was because the applicant’s impairments were permanent and there was no indication the applicant’s condition would improve.³⁸

63Under s.38(11) of the Schedule, an insurer that fails to provide a proper denial 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 insurer provides a proper denial. Section 38(8) of the Schedule sets out what is required for a proper denial. The insurer is required to provide medical reasons and all other reasons with its denial. The purpose of providing the medical reasons is so that an insured person can determine whether the reason is valid in order that he or she can decide whether to dispute the denial.

64The Schedule is silent on whether the medical reason for a denial must be a valid one for a denial to be proper. The applicant was unable to provide any authority that the medical reasons must be valid. Given that the Court of Appeal has determined that the reasons for a denial are not required to be legally correct, I fail to see how medical reasons for a denial are required to be valid.³⁹ An insured person’s remedy when facing bad medical reasons is to file an appeal with the Tribunal as the applicant in this case has. Accordingly, I find that no benefits under the November 13, 2020 treatment plan are payable under s.38(11) of the Schedule.

65Turning to whether the proposed treatment is reasonable and necessary, the applicant submitted that the rationale for the treatment plan was due to the applicant’s reports of difficulty with sitting, standing, activities of daily living and painful sleep. The goal was to control pain and maximise recovery in function. Dr. Jaroszynski had determined that the applicant had a minor lateral meniscal tear also noted on arthroscopic surgery subsequent the applicant’s fracture. When he assessed her, the applicant continued reporting some pain and limitation in keeping with the knee injury. Despite finding that the applicant had complaints of pain in her knee and that these were permanent complaints, Dr. Jaroszynski did not comment on the treatment plan’s goal of pain relief, which I find is a reasonable and necessary goal, especially in light of the applicant’s preference to avoid pain medication given her previous addiction issues.

66Under s.15(2)(b) of the Schedule, the respondent is not liable for paying for services that exceed the Professional Services Guideline. Dr. Kipershlak’s hourly fees are at the maximum rate payable for a chiropractor for a person with a catastrophic impairment and are, therefore, reasonable. However, I have no information on Ms. Schneider’s hourly fee or how long the yoga sessions were supposed to be for. The maximum payable for a nonregulated provider such as Ms. Schneider is $89.07 per hour under the Professional Services Guideline for a catastrophically impaired person. Accordingly, I find that the treatment plan is reasonable and necessary, subject to the maximum rate of $89.07 per hour for yoga instruction.

b) January 27, 2021 Treatment Plan

67The treatment plan for $4,332.32 for chiropractic services proposed by Dr. Kipershlak dated January 27, 2021 also recommends chiropractic treatment and yoga. It is similar to the November 13, 2020 treatment plan except that it recommended chiropractic treatment for 10 weeks and yoga for eight weeks from a new instructor, Shveta Tokas, a nonregulated provider. Further, Dr. Kipershlak reported that the applicant had significant improvements in her pain levels and range of motion.

68The respondent relied on the IE report of Dr. Seung-Jun Lee, family medicine, dated March 29, 2021.⁴⁰ Dr. Lee reported that the applicant had resumed therapy eight months prior virtually and was attending virtual therapy consisting of active stretching/exercise five days a week. She was not taking medication for her pain at the time. Dr. Lee reported that the applicant rated her knee pain at 3/10 on the pain scale with numbness and tingling. The applicant testified at the hearing that her knee pain is usually 3/10 on a pain scale and will increase to 8/10 on the pain scale a couple of times per day. When her knee pain flares up, limping causes other issues such as a sore back and aggravates her pre-existing hip arthritis.

69Despite the applicant being unable to walk on her tip toes due to knee pain, Dr. Lee found there were no valid indicators to support residual or ongoing musculoskeletal accident-related injury or impairment. He determined that the applicant’s soft tissue injuries had resolved. He determined that the applicant’s 2019 wrist surgery for osteoarthritis did not affect her ability to achieve maximum medical recovery from her accident injuries.

70I do not give much weight to Dr. Lee’s opinion as he did not address anything about the treatment plan’s goal of pain relief. It was incumbent upon him to do so given that Dr. Lee reported that the applicant experiences constant right knee pain and given the goals outlined in the treatment plan. However, Dr. Lee did not comment about resolution of the applicant’s pain complaints or report that he asked her about pain medication and her active therapy program.

71For the same reasons I gave with respect to Dr. Kipershlak’s November 13, 2020 treatment plan, I find that his January 27, 2021 treatment plan is reasonable and necessary, subject to the maximum rate of $89.07 per hour for yoga instruction.

c) April 19, 2021 Treatment Plan

72Dr. Kipershlak’s $4,688.60 treatment plan for chiropractic services from Mediwise Health Care dated April 19, 2021⁴¹ is very similar to his other treatment plans. It recommends chiropractic treatment, yoga and lists the same goals. For the same reasons I gave with respect to Dr. Kipershlak’s November 13, 2020 treatment plan and his January 27, 2021 treatment plan, I find that Dr. Kipershlak’s April 19, 2021 treatment plan is reasonable and necessary, subject to the maximum rate of $89.07 per hour for yoga instruction by an unregulated provider.

2. Assistive Devices

73The applicant is claiming entitlement to assistive devices in the amount of $2,296.80 proposed by Dr. Bohdan Osoba, chiropractor of Mediwise Health Care, in a treatment plan dated April 20, 2021.⁴² The devices include relaxation tapes or videos; a meditation chair, cushion and candle; some type of unidentified electronic device; a salt lamp; an incense set; a room divider; a headband; crystal set; a pain and symptom tracker diary; a mental health journal for $78.00; cards and a game; an eye pillow; back roll; yoga blocks; a yoga wheel; and the claimant’s transportation to treatment of $200 for one session. The goals of the treatment plan were to prevent exacerbation of symptoms and impairments, prevent development of secondary injuries or health conditions and to ensure safe practices.

74Dr. Osoba advised that mindfulness meditation had been helpful in improving cognitive and neural efficiency. He advised it that it had been suggested that external devices might reduce the impact of cognitive and neural limitations. He relied on a study that suggested this. Dr. Osoba’s comments may have been referencing the relaxation tape, but this was not clear. I find that the relaxation tape may assist the applicant with coping with her pain complaints. However, the possibility that all of the other meditation devices such as candles and salt lamps might assist the applicant does not meet the applicant’s onus of proof that, on a balance of probabilities, the devices are reasonable and necessary.

75Dr. Osoba recommended a meditation chair at the cost of $96.00 and cushion at $72.00. However, he quoted a yoga instructor who advised that a pillow or bolster helps the hips, and a cushion may help. Given that nothing was stated about the meditation chair, and it was only possible the cushion would help in addition to a pillow, I find that these devices, without further reasoning, are not reasonably necessary. Dr. Osoba reported that a yoga instructor advised that if a person feels pain in her knees, she can use a yoga block or bolster to elevate her hips. Without any comparison or explanation of the difference between a bolster versus a yoga block, I am unable to determine if the cost of $31.00 for a yoga block is reasonable. I accept that, given the applicant’s knee pain, it is possible that one or the other may be reasonably necessary for the applicant to engage in yoga. However, there is no indication that the applicant has experienced any difficulty with her exercises such that she requires a yoga block, bolster, or cushion.

76The recorded materials consisting of relaxation tapes may be reasonable in terms of cost, but given that the applicant is seeing a psychologist and psychiatrist, they would know better than a chiropractor whether the applicant requires relaxation tapes. This comment about a chiropractor’s recommendations applies equally to the symptom tracker diary and the mental health journal. Without the input of a psychologist or the applicant’s psychiatrist on how keeping a pain and symptom tracker diary and a mental health journal may affect the applicant’s mental health, or the necessity of relaxation tapes, I am unable to find that either journal or the relation tapes are reasonable and necessary.

77Dr. Osoba also recommended exercise equipment. However, he did not identify what the equipment was. Without that information, I cannot determine that it is reasonable or necessary.

78I was provided with no justification or reason for why the remaining items might be reasonable or necessary. Accordingly, the applicant’s claim for the items recommended in Dr. Osoba’s treatment plan is dismissed.

D. Cost of Examinations

79Section 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 section 38, including any assessment or examination necessary for that purpose, if I determine that the assessment is payable.

80Under s.25 of the Schedule, the respondent is not liable for paying the cost of an assessment that exceeds the maximum rate of $2,000.00 or exceeds the maximum rate under the Professional Services Guideline.⁴³

1. Cognitive Assessment

81The applicant claimed entitlement to $1,804.07 for a cognitive assessment proposed by Dr. Payan in a treatment plan dated March 13, 2019, to be conducted by Ms. Go.⁴⁴

82The applicant submitted that the assessment was reasonable and necessary in relation to the applicant’s chronic pain. The applicant relied on the comments in the treatment plan that suggested pain related emotions impact cognitive function.

83I find that the assessment was not reasonable or necessary for the following reasons. Any time the applicant is assessed for her attendant care needs, the occupational therapist who conducts the assessment also assesses the applicant’s cognitive function in order to determine the applicant’s response in an emergency situation.⁴⁵ I find that the assessment would be a duplication of those other assessments. In any event, she has since had her cognitive function assessed by Dr. Kurzman. Accordingly, the claim for the assessment is dismissed.

2. Occupational Therapy Assessment

84The applicant is seeking entitlement to $2,468.00 for an occupational therapy assessment proposed by Dr. Payan in a treatment plan dated October 8, 2019.⁴⁶ The goal of the assessment was listed as “N/A for catastrophic application” and was to be conducted by an occupational therapist, Julian Amchislavsky. Dr. Payan recommended $200.00 for her preparation of a treatment plan plus $2,000.00 for a community assessment without providing any breakdown of the time or fee required to conduct the assessment.

85The applicant submitted that this was one of two assessments that was conducted as part of the multidisciplinary catastrophic impairment. Ms. Sesel conducted the in-home assessment and Mr. Amchislavsky conducted the community assessment. The applicant submitted that, given the respondent had two occupational therapy assessments, one in-home and the other in the community, it must be reasonable and necessary for the applicant to have the same.

86An insurer is not allowed to have an insured person undergo more assessments than is reasonably necessary, ⁴⁷ Since Ms. Beacock conducted an IE assessment of the applicant in her home and another out in the community, and she wrote two different IE reports, the respondent must have thought that the two different assessments were reasonably necessary. For this reason I agree with the applicant. However, that does not end the applicant’s onus.

87Under s.25 and s.45 of the Schedule, the cost of the assessment must be reasonable and cannot exceed the maximum of $2,000.00. No reason or evidence was provided as to why the occupational therapy assessments were done by two different assessors. I find that by having two different assessors, there was double the time expended for reviewing file material and for writing the reports. No reason was provided for why two different assessors were required and, accordingly, I find that any duplication of their efforts was unnecessary.

88The cost set out in the treatment plan was $2,000.00 for one unit of Mr. Amchislavsky’s facilitation of interpersonal relationships. No hourly fee is listed for Mr. Amchislavsky nor the number of hours he took to conduct the assessment. Mr. Amchislavsky’s report states that the duration of his assessment was 4.75 hours. At the time the treatment plan was prepared, there was no knowledge as to whether the applicant was catastrophically impaired. I find that a reasonable fee for the assessment based on the maximum allowed under the Professional Service Guideline for occupational therapists for non-catastrophic impairment is $99.75 per hour for 4.75 hours plus 2 more hours for report writing for a total of $673.31. My conclusion is based on the same occupational therapist conducting both assessments.

89If Dr. Payan or anyone else charged a $200.00 fee for the preparation of the treatment plan recommending the catastrophic impairment assessments by Ms. Sesel, Dr. Mathoo, Dr. Zakzanis and Ms. Zonenberg, then I find that her $200.00 fee for preparation of the October 8, 2019 treatment plan is a duplication. Otherwise, the fee plus applicable HST are reasonable and necessary.

3. Attendant Care Assessment

90The applicant is seeking entitlement to $2,486.00 for an attendant care assessment proposed by Dr. Doreen Payan in a treatment plan dated April 1, 2021. The applicant advised that the cost of the assessment was not for an attendant care assessment, but was for one of two occupational therapist’s assessments as part of the multidisciplinary catastrophic impairment assessment. However, the treatment plan is very clear that the purpose of the assessment is for an attendant care assessment to be conducted by Ms. Go at the cost of $2,000.00, without any breakdown for her time or hourly fees.⁴⁸

91Under s.25(1)4 of the Schedule, the respondent is required to pay the reasonable fees charged by an occupational therapist or a registered nurse for preparing an assessment of attendant care needs under s.42, including any assessment or examination necessary for that purpose. Under the applicant’s policy, no attendant care benefits are payable for more than two years after the accident unless the applicant sustained a catastrophic impairment. When Dr. Payan recommended the assessment, there was reason to believe that the applicant was catastrophically impaired because of Dr. Mathoo’s and Dr. Zakzanis’ determinations. There was, therefore, reason to believe that the applicant might be entitled to attendant care benefits beyond the two-year mark. I find that it was reasonable, given the applicant’s functional limitations outlined in the catastrophic impairment reports of Ms. Sesel and Ms. Zonenberg, for a Form 1 to be prepared. However, the information in Ms. Sesel’s and Mr. Amchislavsky’s report was not specific enough for preparing a Form 1. Therefore, I find that it was necessary for Ms. Go to assess the applicant in order to prepare a Form 1.

92Under s.25 (1)4 of the Schedule, Ms. Go’s fees for preparing her Form 1 must be reasonable. However, the treatment plan provides no means for me to determine whether the $2,000.00 fee charged is reasonable as there was no hourly rate or time for doing the assessment set out in the treatment plan. Under s.25(3), the respondent is not required to pay more than the hourly rate for occupational therapists set out in the Professional Services Guideline of $119.92 for catastrophic impairments. Given that I have found that the assessment was necessary for preparation of the Form 1, a reasonable fee is the time it took for Ms. Go to conduct the assessment and prepare her Form 1 and report at the rate of $119.92 per hour to a maximum of $2,000.00.

4. Nutrition Assessment

93The applicant claimed entitlement to $1,200.00 for a nutrition assessment by Yulia Khayat, dietician, proposed by Dr. Osoba in a treatment plan dated January 21, 2021.⁴⁹

94The applicant submitted the assessment was reasonable and necessary to identify if she has any nutritional related problems as it has a role in mental health. The assessment of what role in relation to the applicant’s function and health will provide probative information on the restoration of her eating habits. She relied on the comments by Dr. Osoba in the treatment plan.

95The respondent relied on Dr. Lee’s IE report dated March 29, 2021. Dr. Lee did not comment on the relationship between the applicant’s eating habits and her psychological impairments. Accordingly, I give no weight to his opinion about the reasonableness and necessity of the treatment plan.

96No concerns were raised by the applicant’s psychiatrist or psychologist about the affect of the applicant’s nutrition on her psychological health. However, the applicant reported to Ms. Beacock that her eating habits were irregular. ⁵⁰ While I question the practice of a chiropractor making recommendations for an assessment because of psychological health, I accept that there may be some connection between the applicant’s eating habits and her psychological health. Dr. Osoba reported in his treatment plan that new studies suggest that nutrition may have a role in mental health. This is information I would have expected from a psychologist or psychiatrist, not a chiropractor who is not qualified to address mental health. Despite my concerns, I accept that, in order to formulate a treatment plan for addressing the applicant’s irregular eating habits, the dietician would first need to assess the applicant. Accordingly, I find that a nutritional assessment is reasonably necessary for formulating a treatment plan to determine how to get the applicant eating regularly.

97In the treatment plan Dr. Osoba quoted from a Tribunal decision that allegedly stated that the Schedule does not state that an hourly amount must be included in a treatment plan for the purposes of s.25 in determining if the fee is reasonable. No citation was provided for the case. Nor am I bound by other decisions of the Tribunal. Having said that, s.25(3) states that an insurer is not liable under s.25(1) for expenses related to professional services rendered to an insured person that exceed the maximum rate established under the Guidelines. Although s.25 does not state that the hourly fee must be included in a treatment plan, there is no way to determine if the hourly fee exceeds the Professional Services Guideline unless it is set out in the treatment plan.

98Dieticians are regulated health professionals. However, there is no maximum hourly rate set out in the Professional Service Guideline for their fees and no evidence that the parties agreed on an hourly rate. Accordingly, without that information, I am unable to determine whether the fees charged are reasonable, despite my finding that the assessment is necessary for preparing a treatment plan to address the applicant’s irregular eating habits. Accordingly, the claim for the assessment is dismissed.

CONCLUSION and ORDER

99I find that the applicant has satisfied her burden of proof to show on a balance of probabilities that as a result of the accident, she sustained a catastrophic impairment.

100The applicant is entitled to attendant care benefits of $931.57 per month. No attendant care benefits are payable to the date of the hearing because the applicant did not incur any attendant care expenses up to the date of the hearing.

101The applicant’s claim for $4,239.74 for psychological services from Mediwise Health Care in a treatment plan dated February 17, 2021 is dismissed.

102The applicant is entitled to ten sessions of social worker counselling at a rate of $112.22 per hour under Dr. Mrahar’s treatment plan. Based on what the respondent approved, this means $1,580.20 less $1,456.08 approved is payable of Dr. Mrahar’s $9,817.16 treatment plan for social worker counselling dated January 25, 2021. The applicant’s claim for the remainder of the treatment plan is dismissed.

103The applicant is entitled to the chiropractic and yoga services recommended by Dr. Kipershlak’s treatment plans dated November 13, 2020, January 27, 2021 and April 19, 2021, subject to the maximum rate of $89.07 per hour for yoga instruction.

104The applicant’s claim for $2,296.80 for assistive devices proposed by Dr. Osoba in the treatment plan dated April 20, 2021 is dismissed.

105The applicant’s claim for $1,804.07 for a cognitive assessment proposed by Dr. Payan in a treatment plan dated March 13, 2019 is dismissed.

106The applicant is partially entitled to Dr. Payan ‘s treatment plan dated October 8, 2019 that recommended an occupational therapy assessment. The applicant is entitled to $673.31 plus the $200.00 fee for the preparation of the treatment plan if a fee was not already charged in a treatment plan recommending the catastrophic impairment assessments by Ms. Sesel, Dr. Mathoo, Dr. Zakzanis and Ms. Zonenberg plus any applicable tax.

107The applicant is entitled to an attendant care assessment recommended by Dr. Doreen Payan in a treatment plan dated April 1, 2021 at the rate of $119.92 per hour to a maximum of $2,000.00, plus the applicable tax.

108The applicant’s claim for $1,200.00 for a nutrition assessment by Yulia Khayat, dietician, proposed by Dr. Osaba in a treatment plan dated January 21, 2021 is dismissed.

Footnotes

1. 1At the hearing, the applicant withdrew her claim for income replacement benefits, $838.75 ($4,878.67 less $4,039.85 approved) for social work services proposed by Harinder Mrahar of Mediwise Health Care in a treatment plan dated November 4, 2020, $2,401.25 for the cost of a cognitive assessment proposed by Dr. Doreen Payan in a treatment plan dated March 13, 2019 and conceded that she had not incurred any attendant care benefits up to the date of the application.
2. 2This was incorrectly listed as a treatment plan for chiropractic services on the case conference Order.
3. 3This was incorrectly listed as a chronic pain assessment in the case conference Order and weas clarified by the applicant at the hearing.
4. 4Section 2(1.1)2 of the Schedule
5. 5Also referred to as a deterioration, decompensation in a work and work like settings.
6. 6Ex.13, report of Dr. Zakzanis dated July 15, 2020
7. 7Ex.3: Clinical notes and records from Outpatient Mental Health Services: clinical notes of Dr. Monti Bail, psychiatrist, .
8. 8Resp .p.532
9. 9Ex. 13: report of E. Sesel, p.996
10. 10Ex.13, report of I. Zonenberg, S.W., pp.1072 to 1075
11. 11Ex.12: IE report of Dr. Alex Luczak dated May 4 , 2018
12. 12Ex.3: Clinical notes and records from Outpatient Mental Health Services, letter of Dr. Bail to Manufacturer’s Life Insurance Company dated January 22, 2016
13. 13Ex.3: Clinical notes and records from Outpatient Mental Health Services, note of Dr. Bail dated March 11, 2016
14. 14Ex. 13: report of Julian Amchislavsky, occupational therapist, dated May 1, 2020, report of Isabelle Zonenberg, R.S.W, dated March 19, 2020, Ex.11: report of Dara Beacock, occupational therapist, dated April 19, 2021
15. 15Ex. 2: letter from Dr. Monte Bail , psychiatrist dated June 28, 2020
16. 16Ex.10, IE report of Dr. Lubbers dated May 29, 2021
17. 17Ex.1 clinical notes and records of Dr. Singh, reports of Dr. Bail dated November 15, 2018 and February 8, 2019
18. 18Ex. 1 clinical notes and records of Dr. Singh, report of Dr. Bail dated June 6, 2019
19. 19Ex. 67 respondent’s case conference summary dated September 29, 2020
20. 20AMA Guides p.14/299
21. 21Ex.3: Clinical notes and records from Outpatient Mental Health Services, note of Dr. Bail dated March 11, 2016
22. 22AMA Guides p.14/299
23. 23AMA Guides p.14/299
24. 24AMA Guides p.14/299
25. 25Section 19 of the Schedule
26. 26Ex. 17 and Ex.21
27. 27Ex.13, report of Ms. Sesel, p.1021
28. 28Minutes per week divided by 60 times 4.3 as per the Form 1
29. 29Rabino v Aviva Insurance Company, 2021 CanLII 73546 (ON LAT),
30. 30Ex.10: IE report by Dr. Ralph Lubbers of May 21, 2021, and Letter from Respondent dated May 29, 2021
31. 31Ex.23: Treatment plan of Dr. Harinder Mrahar, dated November 4, 2020
32. 32Ex.23: Treatment plan of Dr. Harinder Mrahar, dated November 4, 2020
33. 33Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“Professional Services Guideline”)
34. 34Ex.26: ten sessions of one hour each for $997.50 amounts to $99.75 per hour.
35. 35Ex.24: Letter from respondent to applicant dated November 23, 2020
36. 36Rabino v Aviva Insurance Company, 2021 CanLII 73546 (ON LAT),
37. 37Ex.27 and Ex.65
38. 38Tab 77 of the respondent’s brief, referred to by the applicant, report of Dr. Jaroszynski, orthopaedic specialist, dated April 19, 2021
39. 39Given that the Court of Appeal determined in Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ON CA) that the reasons for a denial are not required to be legally correct, I fail to see how medical reasons for a denial are required to be valid.
40. 40Ex.62
41. 41Ex.31
42. 42Ex.33
43. 43Section 25(3) and (5)(a) of the Schedule
44. 44Ex.28: treatment and assessment plan of Dr. Doreen Payan, chiropractor from Q-Medical, dated March 13 2019 in the amount of $1804.07 and letter from the respondent dated May 10, 2019
45. 45Ex.17, Ex.42 and Ex.48
46. 46Ex.37
47. 47S.44(1) of the Schedule
48. 48Ex. 38
49. 49Ex.39
50. 50Ex.11: report of Dara Beacock, occupational therapist, dated April 19, 2021, p.803 respondent’s brief