Z.R. v. Gore Mutual Insurance Company, 2022 CanLII 93712

Citation: Z .R. v. Gore Mutual Insurance Company, 2022 ONLAT 18-000017/AABS

Licence Appeal Tribunal File Number: 18-000017/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:

[Z. R.]

Applicant

and

Gore Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Muhammad A. Alam, Counsel

For the Respondent:

Arthur R. Camporese, Counsel

HEARD:

By way of written submissions

BACKGROUND

1[Z. R.] (the “applicant”) was involved in an automobile accident on June 13, 2015, and sought benefits from Gore Mutual Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2This matter stems from two previous decisions where I determined that the applicant sustained a catastrophic (CAT) impairment based on a combined physical and psychological impairment.¹ The respondent requested a reconsideration of the original decision, which I dismissed. The respondent appealed that decision to the Divisional Court and the court rendered its decision upholding both decisions.² Since I have already heard evidence in this matter I am seized. I have been asked to make a determination on the remaining issues in dispute.

3A decision in this matter was delayed because the applicant inadvertently failed to make submissions on the issue of his entitlement to an attendant care benefit (“ACB”) in his initial submissions. Further, the Tribunal’s case conference report and order failed to include two issues that were formally listed as being in dispute in a motion order. To ensure procedural fairness, I permitted both parties to make further submissions on these issues, which resulted in a significant delay in a determination being made in this matter.

PRELIMINARY ISSUE

4The respondent raised the following preliminary issue:

i) Is the applicant statute barred from proceeding with this application disputing his entitlement to an ACB in the amount of $8,280.86 per month, for failing to dispute the respondent’s denial of same within the two-year limitation period pursuant to s.56 of the Schedule?

ISSUES

5I have been asked to decide the following substantive issues³:

i) Is the applicant entitled to $4,033.65 for physiotherapy services, submitted in a treatment plan (“OCF-18”) recommended by Physiomed-Orangeville (“Physiomed”) on January 30, 2017 and denied on January 31, 2017?

ii) Is the applicant entitled to $2,714.43 for psychological treatment, submitted in an OCF-18 recommended by Physiomed on May 9, 2017 and denied on May 15, 2017?

iii) Is the applicant entitled to $4,166.65 for psychological treatment submitted in an OCF-18 recommended by Physiomed dated March 1,2018 and denied on April 13, 2018?

iv) Is the applicant entitled to $252.00 ($2,147.75 less $1,895.75 approved) for occupational therapy submitted in an OCF-18 recommended by Pearson Medical Assessment Centre Inc.(“Pearson”) on June 20, 2015 and denied on July 9, 2015?

(vi) Is the applicant entitled to $1,971.44 for occupational therapy treatment submitted in an OCF-18 by Pearson on October 12, 2016 and denied on October 24, 2016?

(vii) Is the applicant entitled to $11,250.00 for catastrophic assessments submitted in an OCF-18 recommended by Pearson on March 13, 2017, and denied on March 27, 2017?

(viii) Is the applicant entitled to $1,988.80 for a functional impairment assessment submitted in an OCF-18 recommended by Pearson dated February 13, 2017, and denied on March 3, 2017?⁴

(ix) Is the applicant entitled to receive an ACB in the amount of $8,280.86 per month, from September 6, 2015 to date and ongoing?

RESULT

6After considering the parties’ submissions and all of the evidence I find:

1. The applicant is not precluded from proceeding with his claim for ACBs for failing to dispute the respondent’s denial within two years pursuant to s.56 of the Schedule.

2. The applicant is entitled to:

i) The OCF-18 in the amount of $4,033.65 for physiotherapy services, recommended by Physiomed on January 30, 2017.

ii) The OCF-18 in the amount of $2,714.43 for psychological treatment, recommended by Physiomed on May 9, 2017.

iii) The OCF-18 in the amount of $4,166.65 for psychological treatment recommended by Physiomed on March 1,2018.

(iv) The OCF-18 in amount of $1,621.44 (partially reasonable and necessary) for occupational therapy recommended by Pearson on October 12, 2016.

(v) The OCF-18 in the amount of $4,200.00 (partially reasonable and necessary) for catastrophic assessments recommended by Pearson on March 13, 2017.

(vi) The OCF-18 in the amount of $1,988.80 for a functional impairment assessment recommended by Pearson on February 13, 2017.

(vii) An ACB in the amount of $1,628.45 per month from September 5, 2015, to June 14, 2016, and $673.95 per month from June 15, 2016, to December 22, 2016.

3. The applicant is not entitled to:

i) $252.00 ($2,147.75 less $1,895.75 approved) for mileage for occupational therapy recommended by Pearson on June 20, 2015.

PROCEDURAL ISSUES

7In his submissions, the applicant made arguments regarding his entitlement to the housekeeping and home maintenance benefit. The respondent argues that this issue was not listed as an issue in dispute in the Tribunal’s case conference reports and orders scheduling this written hearing. Consequently, it is not appropriate for the applicant to address entitlement to this issue in his submissions. I agree with the respondent that the housekeeping issue was not an issue in dispute in the Tribunal’s orders dated September 25, 2018 and May 14, 2021. In addition, I issued an order seeking clarification from both parties on February 7, 2022 asking that they confirm the issues to be decided in this written hearing. On March 1, 2022, the applicant confirmed the issues in dispute and the housekeeping and home maintenance benefit was not one of them. Therefore, I will not be addressing this issue in this decision.

8The respondent sought leave to admit some media articles dated May 4 and 6, 2021 and an information sworn by a police officer dated May 20, 2021. These documents highlight that the applicant was alleged to have been involved in some illegal activity. The respondent argues that these documents are relevant to the issues in dispute as they contradict the applicant’s testimony about his physical impairments and functional limitations. It submits that the applicant’s involvement in these incidents contradict that he has any physical limitations that require further physiotherapy treatment or ACBs.

9The applicant submits that this documentation is not relevant to the issues in dispute as they significantly post-date the time period of the applicant’s claim for benefits. Further, to date he has not been convicted of any offence and the extent of his involvement in this incident is unknown. I agree with the applicant that these articles are not relevant to his entitlement to accident benefits. Therefore, I have assigned this evidence very little weight.

ANALYSIS

Is the applicant entitled to the OCF-18 for physiotherapy in the amount of $4,033.65 recommended by Physiomed on January 30, 2017?

10The applicant is entitled to the OCF-18 in the amount of $4,033.65 recommended by Physiomed.

11To receive payment for an OCF-18 under s. 15 and 16 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.

12The applicant argues that the OCF-18 for physiotherapy is reasonable and necessary as he sustained objective physical impairments as a result of the accident. Further, he still suffers from ongoing pain in his back, neck, right shoulder, and knee which has impacted his ability to function. In support of his position, he relies on the hospital records, clinical notes and records (“CNRs”) of his [family doctors], his treating orthopedic surgeon. He also relies on the CNRs of Physiomed.

13The respondent submits that the OCF-18 is not reasonable and necessary as the applicant has achieved maximum medical recovery from facility-based treatment. It asserts that none of the applicant’s treating practitioners recommended that he requires ongoing physiotherapy. Further, it submits surveillance evidence supports that the applicant is not as functionally limited as he proposes. Surveillance evidence showed the applicant running errands and carrying out activities that were inconsistent with his self-reported limitations. It also relies on the insurer examination (“IE”) report of Dr. Paitich, orthopaedic surgeon dated March 30, 2017, who recommended that the applicant participate in a home exercise program and that further facility-based treatment was not required. For the following reasons, I agree with the applicant and find the OCF-18 for physiotherapy reasonable and necessary.

14The OCF-18 dated January 30, 2017, authored by Charina Maramag, physiotherapist noted the following activity limitations: The applicant experiences pain and difficulty with his neck and low back. Lifting and repetitive activities aggravate his shoulder and knees, and he experiences difficulty with prolonged standing and walking. The physiotherapist recommended 10 sessions each of physiotherapy, acupuncture, and massage plus fees for form completion for a total cost of $4,033.65. The OCF-18 noted that the applicant had benefited from past therapy as the strength of his right knee had improved to a 4/5. The duration of the OCF-18 was 10 weeks. The goal of the OCF-18 was pain reduction and increase range of motion (ROM) in order to return the applicant to his activities of normal living.

15On January 31, 2017, the respondent issued an explanation of benefits (EOB) denying the OCF-18 on the basis that the applicant had exhausted the non-catastrophic (“CAT”) limits of $50,000.00. Since I have determined that the applicant sustained a CAT impairment, this policy limit no longer applies.

16The case law is well established that medical treatment is reasonable and necessary if it results in the temporary relief of pain or restores an individual’s function. The medical evidence supports that the applicant sustained serious objective physical impairments as a result of the accident. Further, as of the date the OCF-18 was submitted the applicant still reported ongoing pain in his back, neck, right shoulder, and knee. At the hearing the applicant testified that he suffered from chronic pain which interfered with his ability to function in his daily activities. The Tribunal accepted this testimony and the applicant’s chronic pain was well documented in the records. The applicant’s complaints about pain and limitations are also consistently reflected in the CNRs of Dr. Knox and Dr. Yardley from the fall of 2016 well into 2017.

17I also find that the evidence supports that the goals of pain reduction and increased strength will be achieved. The CNRs of Physiomed from the fall of 2016 and into January 2017 note that the past treatment had achieved its goal of reducing his pain and increasing strength in his right shoulder and knee. Therefore, I find the OCF-18 will likely achieve its goals. The respondent did not make submissions that the cost of the OCF-18 was excessive. Therefore, I accept the cost of the OCF-18 as being reasonable.

18The respondent relies on the testimony and report of [Dr. P] dated March 30, 2017, in support of its denial. Overall, I do not find [Dr. P’s] IE or opinion that the applicant had reached maximum medical recovery persuasive. [Dr. P’s] physical examination of the applicant revealed several limitations, and the medical evidence does not support that the applicant had achieved maximum medical recovery at the time of his assessment.

19For the above reasons, the applicant has met his onus in proving on a balance of probabilities that the OCF-18 for physiotherapy in the amount of $4,033.65 recommended by Physiomed is reasonable and necessary.

Is the applicant entitled to two OCF-18s for psychological treatment recommended by Physiomed in the amount of $2,714.43 submitted May 9, 2017; and $4,166.65 submitted March 1, 2018?

20The applicant is entitled to both OCF-18s recommended by Physiomed for psychological treatment in the amount of $2,714.43 and $4,166.65.

21Both OCF-18s dated May 9, 2017, and March 1, 2018 were authored by Dr. Bhatia, psychologist. Under activity limitations it notes that the applicant’s psychological difficulties are impacting his sleep, concentration, and mood. He feels sad and more anxious. The pain is impacting his ability to function in his daily activities. The goals of the OCF-18s are to reduce anxiety and depression to return the applicant to activities of normal living. Further, it is noted that there has been an improvement in appetite and a reduction in anger, flashbacks and negative thoughts. The first OCF-18 recommended 10 hour-and-a-half sessions of psychotherapy, plus fees for documentation for a total cost of $2,714.43. The duration of the OCF-18 was 10 weeks. The goals of the second OCF-18 in the amount of $4,166.65 are identical and the number of sessions were increased.

22Both OCF-18s were denied because the $50,000.00 medical and rehabilitation policy limit had been exhausted. As already noted, the policy limit no longer applies.

23The applicant argues that both OCF-18s are reasonable and necessary because he sustained a psychological impairment as a result of the accident that has had a negative impact on his ability to function. He relies on the CNRs of his family doctor and treatment team, as well as the psychological reports of Dr. Pilowsky, Dr. Mills, Dr. Bhatia, and Dr. Waisman.

24The respondent maintains that neither OCF-18 is reasonable and necessary as the applicant’s self-reports and clinical testing profiles are invalid. The respondent relies on the reports of Dr. Zielinsky, psychiatrist and Dr. Watson, neuropsychologist who determined that the applicant’s profile was invalid and consequently, they were unable to render a diagnosis. For the following reasons, I agree with the applicant and find both OCF-18s reasonable and necessary.

25Since both OCF-18s involve similar arguments and evidence, to avoid duplication I have addressed them together. It is important to note that both parties relied on the same arguments and evidence in addressing the OCF-18s which was already considered by me in the Tribunal’s decision dated April 6, 2020, in determining that the applicant sustained a CAT impairment. I have already made findings regarding the applicant’s accident-related psychological impairment. For example, it was determined that the applicant has a moderate psychological impairment in all four spheres of functioning.⁵ In addition, as of 2017, he has been diagnosed with accident-related psychological impairments by four different assessors. Those diagnoses included depression, generalized adjustment disorder, anxiety and somatic symptom disorder, and generalized phobia. There was no evidence to challenge these past diagnoses.⁶

26Furthermore, I have already considered and acknowledged the validity issues raised by Dr. Watson and Dr. Zielinsky and explained why those opinions were given less weight.⁷ Finally, the surveillance evidence, Facebook posts and inconsistencies regarding substance were considered.⁸

27Much was made by the respondent that the applicant did not report symptoms of depression to his family doctor in 2018 and 2019 and at one point reported that he was not interested in counselling. I do not find the respondent’s argument convincing as based on the totality of the evidence, I am persuaded that the applicant had an ongoing psychological impairment at the time the OCF-18s were submitted which had an impact on his ability to function.

28As noted above, I have already determined that the applicant sustained a psychological impairment as a result of the accident. Therefore, I find the OCF-18’s goals to reduce anxiety and depression to return the applicant to activities of normal living to be reasonable and necessary. In addition, the OCF-18 noted that the applicant had received benefits from receiving past psychological treatment. Consequently, I find it likely that the OCF-18 will achieve its stated objectives. The respondent did not argue that the cost of the OCF-18s were excessive. Therefore, I find the costs to be reasonable.

29For all of the above-noted reasons, the applicant has met his onus in proving on a balance of probabilities that both OCF-18s for psychological treatment recommended by Physiomed are reasonable and necessary.

Is the applicant entitled to an OCF-18 in the amount of $252.00 ($2,147.75 less $1,895.75 approved) for mileage for occupational therapy recommended by Pearson on June 20, 2015?

30The applicant is not entitled to payment of the balance of the OCF-18 in the amount of $252.00 recommended by Pearson Medical.

31The OCF-18 dated July 9, 2015, was authored by Ms. Arora, OT and recommended 6 hours of occupational therapy in the amount of $598.50, which when broken down equals $99.75 per hour. Ms. Arora also claimed 6 hours of travel time at an equal cost of $598.50. She also included $252.00 for mileage and the remainder of the plan was for form completion and documentation to support activity for a total cost of $2,147.75.

32On July 13, 2015, the respondent sent the applicant an EOB partially approving the OCF-18 in the amount of $1,895.75. The respondent denied $252.00 for mileage as in its opinion this cost is included in the hourly rate provided for in the Financial Services Commission of Ontario – Professional Services Guideline (Superintendent’s Guideline 03/14).

33The applicant argues that the $252.00 for mileage is reasonable and necessary because he was immobile following neck surgery on June 25, 2015. As a result, Ms. Arora had to travel to his home to provide occupational therapy. He maintains that s.15(1)(b) of the Schedule supports that the respondent is obliged to pay reasonable and necessary transportation expenses incurred on behalf of the insured person. Therefore, mileage is encompassed as part of these expenses. He also relied on the same Guideline 03/14 in support of his position that mileage is payable.

34The respondent submits that mileage is to be included in the hourly rate or overhead expenses charged by service providers. It relies on Guideline 03/14 as well as two decisions of this Tribunal which determined that mileage is included in the hourly rate and is not payable.⁹ For the following reasons, I agree with the respondent and find that mileage is not payable.

35Sections 15 to 17 of the Schedule list certain benefits to be paid by the insurer to the injured person. Regarding transportation expenses, reference is only made to transportation for the insured person, and for the insured person’s aide or attendant. No reference is made to the transportation of an insured person’s service provider.

36The maximum hourly rate provided for under Guideline 03/14 for occupational therapists is $99.75 per hour, which is the amount charged by Ms. Arora for her hourly services. Ms. Arora also charged 6 hours for travel time in which the respondent paid. In my view, claiming mileage on top of provider travel time is not reasonable and I agree with the respondent that it exceeds the amounts payable under Guideline 03/14.

37The applicant relies on Guideline 03/14 but did not articulate how it supports his position that mileage is payable. The Guideline states that professional service expenses include “all administration costs, overhead, and related costs, fees, expenses, charges and surcharges. The respondent is not liable to pay anything above which results in an increase to the maximum hourly rate for providing services.” I agree with the respondent that mileage would be included in overhead expenses. The applicant did not submit any case law that supports his position.

38I find the case law relied upon by the respondent persuasive that mileage for service providers is not payable under the Schedule or Guideline 03/14. For example, in V.H. v. Certas the adjudicator analyzes the Schedule and Guideline 03/14 in determining that mileage is not payable. The adjudicator concluded that “there is no provision in the Schedule, the Guidelines, or the Bulletin, to pay mileage expenses to service providers.¹⁰” Similar to this case, the adjudicator determined that since the insurer paid for the service provider’s travel time, their transportation expenses had already been paid for. Whether or not the service provider had to travel to the insured’s person’s home as a result of the impairment is irrelevant.

39The applicant has not met his onus in proving on a balance of probabilities that mileage is payable under the Schedule or Guideline 03/14.

Is the applicant entitled to an OCF-18 in the amount of $1,971.44 for OT treatment recommended by Pearson on October 12, 2016?

40The applicant is entitled to the OCF-18 recommending OT in the amount of $1,621.44 ($1,971.44 less $350.00 for mileage) recommended by Pearson.

41The OCF-18 dated October 10, 2016 was also authored by Ms. Arora, and proposed 5 hours of therapy, motor and living skills at a cost of $498.75. $498.75 was included for provider travel time to provide treatment, $350.00 for mileage and $623.91 was for documentation to support activity and planning services for a total cost of $1,971.44. Under additional comments it stated 5 treatments recommended in intervention session report. The goal of the OCF-18 was to return the applicant to activities of normal living.

42On October 24, 2016, the respondent sent the applicant and EOB denying the OCF-18 on the basis that the applicant had two attendant care assessments completed in the past 4 months. It advised that the request to conduct another assessment was not reasonable and necessary.

43In support of his position that the OCF-18 is reasonable and necessary the applicant relies on the in-home safety assessment report of Ms. Arora dated July 6, 2015, which recommended five OT education sessions following the delivery of the recommended assistive devices. He also relies on the OT Intervention session report dated June 9, 2016 which recommended five intervention sessions. The applicant maintains that he required OT treatment and intervention as he was coping with a new lifestyle and patterns after suffering various impairments which required him to learn new living skills.

44The respondent did not make any submissions regarding this OCF-18. Further, I do not find the reason for its denial made sense as this was an OCF-18 for OT not an attendant care assessment.

45As I have already determined the applicant sustained objective physical impairments which interfered with his daily activities and ability to work in his pre-accident employment. Therefore, I find OT to be reasonable and necessary in order to teach him how to cope with his new physical limitations and to provide new skills. However, for the same reasons I have determined above, the $350.00 for mileage is not payable as per Guideline 03/14. Consequently, I find the OCF-18 partially reasonable and necessary in the amount of $1,621,44.

Is the applicant entitled to an OCF-18 in the amount of $11,250.00 for CAT assessments recommended by Pearson on March 13, 2017?

46The applicant is partially entitled to the OCF-18 for CAT assessments in the amount of $4,200.00 recommended by Pearson Medical.

47Section 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.

48The OCF-18 dated March 10, 2017, was authored by Dr. Nathanson, chiropractor and recommended a multidisciplinary CAT assessment in the amount of $11,250.00 which can be broken down as follows:

• $200.00 for completion of the OCF-18;

• $2,200.00 for a psychological assessment to be completed by Dr. Mills;

• $2,200.00 for an occupational therapy assessment completed by Ms. Arora;

• $2,200.00 for an orthopaedic assessment completed by Dr. Getahun;

• $2,000.00 for a functional impairment assessment completed by Dr. Nathanson;

• $2,200.00 for CAT summary and impairment rating completed by Dr. Nathanson.

49On April 7, 2017, the respondent sent the applicant an EOB denying the OCF-18 on the basis that the applicant had already submitted an application for a determination of CAT impairment (OCF-19) dated March 2, 2017 requesting an orthopaedic assessment completed by Dr. Fern, chiropractor. The respondent submits that it approved this OCF-18 on January 17, 2017, and that the disputed OCF-18 is a duplication of services and is not reasonable and necessary.

50The applicant argues that all of the above assessments are reasonable and necessary as the Tribunal determined that the applicant sustained a CAT impairment as a result of the accident. Further, the applicant relied on these assessments in support of his position at the hearing. Therefore, all of the aforementioned assessments are reasonable and necessary.

51The respondent submits that the applicant has not met his onus in proving that each assessment is reasonable and necessary. Further, the assessments requested are above the $2,000.00 cap provided by s. 25 (5) (a) and are not payable. It relies on the Tribunal’s decision in O.A. and TD Insurance¹¹. In that decision, the adjudicator determined that duplicate assessments are not reasonable and necessary.

52In his reply submissions, the applicant asserts that the psychiatric assessment was not a duplication of services. Dr. Waisman instead of Dr. Mills completed the psychiatric assessment. Further, he asserts that Dr. Fern’s assessment was completed for the purpose of submitting the OCF-19. The orthopaedic assessment completed by Dr. Getahun was done to assess the applicant’s WPI ratings from an orthopaedic perspective. As a result, there was no duplication of services.

53I find the applicant failed to articulate how some of the assessments listed in the OCF-18 are reasonable and necessary. His submissions focussed on his impairments and he did not link each assessment to his application for a CAT determination. In my view, simply arguing that all of the assessments are reasonable and necessary because they were relied on at the hearing is not a compelling argument. I also agree with the respondent that the applicant did not rely on any CAT reports completed by Dr. Nathanson or Ms. Arora at the hearing and the OCF-18 sought above the $2,000.00 cap for each assessment set out in s.25 (a). The applicant has not met his onus in establishing that the $2,200.00 for the functional impairment, CAT summary impairment rating or occupational therapy assessments are reasonable and necessary.

54However, at the hearing the applicant did rely on the CAT reports of Dr. Getahun, orthopaedic surgeon and Dr. Waisman, psychiatrist. I do not find Dr. Getahun’s orthopaedic assessment to be a duplication of services as it was separate from the assessment completed in the submission of the OCF-19. Further, Dr. Getahun’s assessment also included the CAT summary rating. In addition, Dr. Waisman’s assessment was necessary to assess the applicant’s CAT impairment from a psychological impairment. Therefore, I find the OCF-18 recommended by Pearson Medical recommending CAT assessments partially reasonable and necessary in the amount of $4,200.00 which is $2,000.00 each for the assessments of Dr. Getahun and Dr. Waisman and $200.00 for the preparation of the OCF-18.

Is the applicant entitled to the OCF-18 in the amount of $1,988.80 for a functional impairment assessment recommended by Pearson on February 13, 2017?

[55] The applicant is entitled to the OCF-18 in the amount of $1,998.80 for a functional impairment assessment recommended by Pearson.

56The OCF-18 was authored by Dr. Nathanson, chiropractor and the goal was to identify barriers to recovery and treatment options.

57The respondent sent the applicant an EOB on March 3, 2017 denying the OCF-18 on the basis that the $50,000.00 non-CAT limits have been exhausted. As already indicated this limit no longer applies.

58The applicant argues that the OCF-18 is reasonable and necessary because his family doctor’s CNRs support that he was suffering from ongoing physical impairments. Furthermore, his physical impairments have impacted his day to day living. He is unable to work or carry out any physical activity. He has not returned to sports, social activities, or housekeeping. Further, the OCF-18 for the functional impairment evaluation is reasonable and necessary to investigate his functional impairments in order to develop an OCF-18 to assist him in resuming his pre-accident normal activities.

59The respondent argues that the OCF-18 recommending the functional impairment assessment is not reasonable and necessary. It asserts that the applicant had been referred to a physiatrist by his family doctor. Consequently, a functional impairment assessment would be a duplication of services that are available through OHIP. It also relies on the IE assessment of [Dr. P] dated January 27, 2017, in which the doctor opined that the applicant had achieved maximum medical recovery from facility-based treatment and no further intervention was required. I agree with the applicant and find the functional impairment assessment reasonable and necessary.

60As highlighted above, I find that the evidence supports that the applicant had ongoing physical impairments at the time the OCF-18 was submitted. Further, I find the goal of investigating the applicant’s complaints in order to develop a treatment plan to return the applicant to his activities of daily living to be a reasonable objective. Neither party submits that the cost of the OCF-18 is unreasonable, therefore I do not find the cost of same excessive.

61Overall, I do not find [Dr. P’s] IE report persuasive. In his report, [Dr. P] posits that most people who have sustained injuries such as the applicant are capable of returning to a physically active form of work approximately six months to one year after the date of a procedure. However, this is not what has happened in the applicant’s case. As highlighted in the Tribunal’s initial decision in April 2020 both the applicant’s family doctor and treating orthopaedic surgeon opined that the applicant had to change vocational status and cannot do certain sporting activities because of his impairments. Further, I do not agree with the respondent that a functional impairment assessment is a duplication of services because the applicant’s family doctor referred him to a physiatrist as they are different specialties with different scopes of practice. Similarly, I do not find the total body assessment completed by Dr. Fern in the preparation of the OCF-19 a duplication of what is being sought here.

62For the above-noted reasons, the applicant has met his onus in proving on a balance of probabilities that the OCF-18 for a functional impairment assessment is reasonable and necessary.

Is the applicant statute barred from proceeding with his application disputing the respondent’s denial of ACBs, for failing to dispute the denial of same within the two-year limitation period pursuant to s.56 of the Schedule?

63The applicant is not statute barred from disputing his claim for ACBs for failing to dispute the respondent’s denial of same within the two-year limitation period.

64Section 56 of the Schedule provides that an application under subsection 280 (2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. In order to assess whether the applicant is barred from proceeding with his dispute of his entitlement to ACBs it is necessary to provide a chronology of when the ACBs were applied for and when the respondent provided notice of its denial.

65On August 7, 2015, the applicant submitted the attendant care assessment and Form 1 prepared by Ms. Arora, to the respondent. The Form 1 supports that the applicant required $8,883.67 per month in ACBs per month. This amount was revised by Ms. Arora a month later in a second attendant care assessment and Form 1 recommending $8,280.86 per month.

66On August 11, 2015, the respondent sent the applicant an explanation of benefits (EOB) advising that the maximum amount payable is $3,000.00 per month because as of that date the applicant had not been designated to be CAT impaired pursuant to the Schedule. In its EOB the respondent provided information about how to dispute the respondent’s denial and outlined the two-year limitation period to do so. The respondent then had the applicant assessed by its own insurer examination (“IE”) assessor.

67On November 12, 2015, the respondent sent the applicant another EOB enclosing the attendant care assessment and Form 1 of Lyndy Goldlust, OT advising that she assessed his entitlement to ACBs in the amount of $220.01 per month. It once again provided the applicant with information about how to dispute the respondent’s denial of the benefit and the two-year limitation period to do so.

68The respondent argues that the EOBs sent to the applicant on August 11, 2015, and November 12, 2015, constitute clear and unequivocal denials of the applicant’s entitlement to ACBs. Further, the limitation period was triggered on November 12, 2015, making the deadline to dispute the denial November 12, 2017. The applicant did not file his application with the Tribunal disputing the denial until January 2, 2018, which is past the two-year limitation period for disputing the denial.

69The applicant argues that the respondent’s EOBs dated August 11, 2015, and November 12, 2015, did not constitute clear and unequivocal denials. He submits that a reduction of benefits does not constitute a denial of a benefit. He asserts that section 42 of the Schedule supports his position that an ACB is a monthly benefit which can be the subject of frequent re-assessment. Because ACBs were not denied in their entirety the limitation period does not apply.

70The respondent maintains that a reduction of benefits is a denial of benefits and that the limitation period was triggered by both of its EOBs. It relies on the Tribunal’s Reconsideration decision in P.D. v. Western¹², where the Associate Chair determined that “an amount reduced is a denial to pay benefits claimed.” The applicant did not rely on any caselaw, in support his position, that a reduction of benefits is not a denial. I find the principle outlined by the Associate Chair in P.D. v. Western persuasive and find that the limitation period began to run when the respondent advised the applicant of its reduction of benefits and outlined the procedure for disputing its denial within the two-year limitation period. Consequently, I find that the applicant did not dispute the respondent’s denial of the ACBs within the two-year limitation period. However, the question that needs to be answered is does the limitation period apply to the applicant’s case because he has since been deemed to be CAT impaired.

Application of Tomec to Limitation Period

71Neither party addressed the Court of Appeal’s Decision in Tomec v. Economical Mutual, 2019 ONCA 882 (Tomec) to the facts of this case so I asked the parties for further submissions. In Tomec, the court determined that the limitation period provided for in the Schedule is not a hard limitation period and is subject to the rule of discoverability because it is directly tied to the cause of action that an insured can assert when denied benefits. The court stated that a hard limitation period in the case before it was contrary to the purpose of the Schedule, as it is consumer protection legislation and if applied it would lead to an absurd result. The Court of Appeal was guided by the principles set out in the decision of the Supreme Court of Canada in Pioneer v Godfrey, 2019 SCC 42 (“Pioneer”).

72The respondent argues that the rules of discoverability outlined in the Court of appeal’s decision in Tomec¹³ do not apply to the present case as the applicant did not apply for a CAT determination until March 2017. The respondent submits that unlike the scenario in Tomec, it did not deny something the applicant was not entitled to claim yet because at that time he was only entitled to the maximum ACBs of $3,000.00 per month for non-CAT claimants. Further, its denial dated November 11, 2015 advised the applicant of the maximum benefits payable for non-catastrophic claimants. Therefore, the limitation period applies as the subject of this dispute involves the applicant’s entitlement to ACBs in the pre-104 time period, when he was not eligible to claim the $6,000.00 max for CAT claimants.

73In Tomec, the Supreme Court quotes from the decision of Arts (Litigation Guardian of) v. State Farm¹⁴ which provides guidance on how to interpret the Schedule when assessing the application of a limitation period to a person who has sustained a CAT impairment. The court states:

The legislature's definition of "catastrophic impairment" is intended to foster fairness for victims of motor vehicle collisions by ensuring that accident victims with most health needs have access to expanded medical and rehabilitation benefits. That definition is intended to be remedial and inclusive, not restrictive.

The appellant falls within a small category of victims who suffer from lasting and very serious health impacts as result of a motor vehicle accident. The SABS is supposed to maximize benefits for that class of victims. A hard limitation period prevents the appellant from making a claim for the benefits the SABS are intended to provide. I do not see how such a result could be consistent with consumer protection legislation designed to provide fair compensation and minimize economic disruption in the lives of accident victims.

74The applicant submits that the limitation period does not apply to the present case until January 2022, when the Court dismissed the respondent’s appeal on the CAT determination. I do not agree with either party’s position on the limitation period. In the present case, the applicant applied for a CAT determination in March 2017. The applicant’s CAT assessments range from October 2017 to September 2018. The respondent’s CAT IEs were completed between July 2017 and June 2018. In my view, had the applicant applied to dispute the respondent’s denial of the benefit on November 12, 2017, he would not have had a chance of success as he did not have the evidence needed to challenge the respondent’s denial of the ACBs. At that time, he did not have any evidence to support that he was CAT, and he could not dispute the CAT determination until the respondent’s IEs were completed. As a result, the Tribunal would not have been able to decide in his favour on the ACB issue. In my view, expecting the applicant to dispute a claim he had no chance of being successful on would create an absurd result. I find the applicant would have been in a lose-lose situation which is exactly what was contemplated by the court in paragraphs [47] to [52] in Tomec. Therefore, as per the guidance outlined in Tomec, I find the limitation period does not apply and the applicant is not barred from disputing his entitlement to the ACBs in the amount of $6,000.00 per month from September 5, 2015, to date and ongoing.

Did the applicant require 24-7 supervisory ACBS from September 6, 2015, to date and ongoing?

75I find the applicant is not entitled to an ACB in the amount of $6,000.00 per month from September 6, 2015, to date and ongoing.

76Section 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. If a person sustains a catastrophic impairment as a result of the accident, the maximum amount of ACBs payable is $6,000.00 per month.

77The applicant has been assessed for ACBs approximately six times since the beginning of his claim. He has been assessed three times by Ms. Arora and once by Behnaz Yeganeh, Registered Nurse. He has also been assessed twice by the respondent’s assessors Lyndy Goldlust and Nancy van Loenen, OTs. The respondent has paid ACB services incurred by the applicant up until December 2, 2015. The applicant has also submitted invoices of Advanced Medical supporting that ACBS have been incurred from December 2015 to May 2017. I accept this evidence as proof that the benefit has been incurred. However, there is a drastic disagreement between the assessors regarding how much ACBs the applicant required. According to Ms. Arora the applicant requires 24-7 supervision for a period of time. The respondent’s assessors opined that the applicant required minimal ACBs.

78As a starting point, other than the two Form 1s prepared by Ms. Arora completed within a month or two post-accident, none of the other Form 1s prepared on behalf of the applicant support that he requires 24-7 ACBs on an ongoing basis. Further, the applicant’s submissions and evidence relied upon do not support that he required 24-7 supervision or the maximum ACBs available from September 2015 to date.

79Overall, I find the applicant’s submissions on the ACB issue unclear and inconsistent. On the one hand he argues that he is entitled to the maximum amount of ACBs available under the Schedule on an ongoing basis because he has been deemed CAT. In my view, just because he has been deemed CAT does not entitle him to the maximum amount available under the Schedule. Further, I do not find that the medical evidence relied upon by the applicant in September 2015 supports that he required 24-7 supervision. Other than Ms. Arora’s assessment, none of the applicant’s treating practitioners or assessors rendered an opinion that he required 24-7 supervision or that he could not respond in an emergency because of his impairments. In addition, in his reply submissions, the applicant acknowledges that as of May 2016 he did not require 24-7 supervision. I find the applicant’s submissions contradictory.

80The applicant has not met his onus in proving on a balance of probabilities that he requires 24-7 ACBs as a result of his accident-related impairments from September 2015 to date. Now I need to address how much ACBs the applicant required.

What is the amount of monthly ACBs the applicant is entitled to from September 5, 2015, to date and ongoing?

81I find the applicant is entitled to an ACB in the amount of $1,628.45 per month from September 5, 2015, to June 14, 2016, less amounts paid.

82Although I do not find that the applicant requires 24-7 supervision, I still need to determine the appropriate amount of the Form 1 and thus a comparison of the Form 1s is required. The parties’ submissions were not helpful as far as addressing the different time-periods in dispute and the different levels of care the OTs accorded in their respective Form 1s. Therefore, I have taken a practical approach based on the facts before me. The chart below summarizes the recommendations of each party’s OT and my findings on the number of minutes per week for the different levels of care and my rationale follows.

Time Period September 5, 2015, to June 14, 2016

Inderneet Arora’s Form 1 dated September 6, 2016

Lyndy Goldlust’s Form 1 dated October 29, 2015

My Finding

Level 1: Dressing= 280 mins Grooming= 185 mins Feeding = 420 mins Supervision while walking= 350 mins Total = 1235 mins week

Level 1 Dressing = 0 Grooming = 7.5 mins Feeding = 225 mins Total = 232.5 mins

Level 1: Dressing= 280 mins Grooming= 80 mins Feeding = 420 mins Supervision while walking = 350 mins Total =1130 mins week (80.98 hours per month x $13.19) $1,068.12 per month

Level 2: Bathroom Hygiene = 70 mins Bedroom Hygiene = 105 mins Ensures comfort/safety =105 mins Laundry = 140 mins Emergency Supervision=8190 mins Total: 8610 mins

Level 2 = 0

Level 2 Bathroom Hygiene =70 mins Bedroom Hygiene =105 mins Comfort and Safety = 0 Laundry =140 mins Emergency Supervision = 0 Total = 315 mins (22.575 hours per month x $11.00) $248.32 per month

Level 3: Medication supply = 15 min Bathing = 210 mins Maintains equipment = 20 min Total = 235 mins

Level 3 = 0

Level 3 Medication supply = 15 mins Bathing = 210 mins Maintains equipment = 0 Total = 225 (16.125 hours per month x $19.35) $312.01 per month

$8,280.86

$220.01

$1,628.45

Level 1

83With respect to Level 1 care, I accept Mr. Arora’s recommendations for 280 minutes per week for dressing and undressing. Ms. Arora’s assessment was done just over two-months post-accident. The applicant sustained significant physical impairments in that he fractured his neck and sustained a right shoulder and knee impairment. Consequently, he was limited in his ability to bend, reach, and pull and I find he would have required some assistance with dressing at this time. I do not find the amount of time Ms. Arora recommended for these tasks excessive and found the numbers to be reasonable. I find Ms. Goldlust’s assessment overlooked the significance of the applicant’s physical impairments in determining that no assistance was required at the time for dressing and undressing.

84In regard to grooming, I accept the 70 minutes per week recommended by Ms. Arora for shaving over the 5 minutes recommended by Ms. Goldlust. I also find the 10 minutes recommended for toenail care more realistic than the 2.5 minutes allocated by Ms. Goldlust. I believe it would take a service provider longer than the time allotted by Ms. Goldlust to assist with shaving and nailcare. However, I do not accept Ms. Arora’s recommendation that the applicant required 105 minutes per week for brushing, shampooing, drying and styling his hair as the applicant has a shaved head.

85Both assessors recommended that the applicant required assistance with meal preparation. Overall, I prefer 420 minutes recommended by Ms. Arora over the 225 minutes recommended by Ms. Goldlust. Ms. Goldlust recommended that the applicant only needed assistance with making dinners five times a week. Ms. Goldlust’s rationale for this was that the applicant’s father would make dinner on the weekends. Although the applicant reported he could make light meals, I find the applicant would have required assistance with meal preparation to ensure he was eating well balanced nutritional meals on a consistent basis. Further, I find the applicant would have required assistance seven days a week versus five recommended by Ms. Goldlust. In my view, Ms. Goldlust did not consider what would happen if the applicant’s father was not available on the weekend to make dinners.

86Regarding the 350 minutes allotted by Ms. Arora for supervision while walking, I find this recommendation reasonable for this time period. The applicant had just ceased using a wheelchair and walker following his injury. I find since the applicant was recovering from having neck surgery and he sustained a right knee injury (meniscus tear) in which he required surgery a year later, I find it reasonable for the applicant to have supervision with walking during this time period.

87I find the 1130 minutes of weekly assistance for level 1 services to be reasonable and necessary which when calculated as per the formula on the Form 1 equals $1,068.12 per month.

Level 2

88I find the time allocated on Ms. Arora’s Form 1 for bathroom and bedroom hygiene more reasonable than Ms. Goldlust’s recommendation of zero. Ms. Arora proposed 70 minutes per week to assist the applicant with cleaning the tub, sink and toilet on a daily basis. I find 10 minutes per day to assist with tasks reasonable due to the applicant’s limitations with bending and reaching. I also prefer Ms. Arora’s recommendation of 105 minutes per week to assist with bedroom hygiene (15 minutes per day) over Ms. Goldlust’s recommendation of zero. I find the applicant would have required assistance with changing sheets, making his bed, and tidying his bedroom. In my view, Ms. Goldlust’s recommendation of zero conflicts with Ms. Van Loenen’s Form 1 done almost a year later, which recommends that the applicant still needed assistance with this task. I find Ms. Arora’s recommendation for assistance with laundry tasks is supported based on the same rationale as the applicant would have been limited in doing his laundry and folding and putting it away. The reports throughout the claim reflect that the applicant’s father had to assist him with these types of tasks.

89I do not accept Ms. Arora’s recommendation of 105 minutes for “comfort and safety” in the bedroom environment as the attendant care assessment report does not explain why this was being recommended. As already highlighted above, I do not find Ms. Arora’s recommendation of 24-7 supervision is reasonable and necessary in the applicant’s case, so I allocate zero for supervision.

90I find 315 minutes of weekly assistance for level 2 services reasonable and necessary which when calculated as per the formula on the Form 1 equals $248.32 per month.

Level 3

91I prefer Ms. Arora’s recommendations for bathing in the amount of 210 minutes per week over the amount of zero recommended by Ms. Goldlust. I find that Ms. Goldlust’s recommendation of zero conflicts with the recommendations of Ms. van Loenen’s Form 1 done almost a year later. The evidence supports that for the first-year post-accident, the applicant complained of problems with his right knee locking and popping and was concerned about his knee giving out. Ms. Van Loenen recommended a shower chair and handle for safety one-year later. Therefore, I find it reasonable for the applicant to receive assistance with bathing during that first year. I also find Ms. Arora’s recommendation of 15 minutes per week to maintain the supply of medication at that time to be reasonable. I do not find Ms. Arora’s recommendation of 10 minutes per month to ensure assistive devices are safe and secure reasonable as she does not address what assistive devices this applies to in her report.

92I find 225 minutes of weekly assistance for level 3 services to be reasonable and necessary which when calculated as per the formula on the Form 1 $312.01 per month.

93I find the applicant is entitled to a monthly ACB in the amount of $1,628.45 per month from September 5, 2015 to June 14, 2016, less amounts paid by the respondent.

Time Period – from June 15, 2016 to December 22, 2016

94I find the applicant is entitled to a monthly ACB in the amount of $673.95 per month from June 15, 2016 to December 22, 2016.

95The applicant was reassessed for ACBs on June 14, 2016 by Nurse Yeganeh and by Nancy van Loenen, OT IE assessor on July 18, 2016. The following chart highlights the assessor’s recommendations, my findings and my rationale will follow.

Behnaz Yeganeh Form 1 dated June 14, 2016

Nancy van Loenen’s Form 1 dated July 4, 2016

My Finding

Level 1: Dressing= 420 mins Grooming= 150 Feeding = 630 mins Mobility = 18 mins Total =1218

Level 1 Grooming = 7.5 mins Total = 7.5 mins

Level 1: Dressing= 0 mins Grooming= 105 mins Feeding = 0 mins Mobility= 0 Total = 105 mins week (7.52 hours per month x $13.19) $99.18 per month

Level 2: Bathroom Hygiene = 70 mins Laundry = 105 mins Coordination of attendant care = 60 Total: 235

Level 2 = 0 Bedroom Hygiene = 5

Level 2 Bathroom Hygiene =70 mins Laundry =105 mins Coordination of attendant care=0 Total = 175 mins (12.54 hours per month x $11.00) $137.95 per month

Level 3: Assists with exercise program = 210 min Bathing = 105 mins Total = 315 mins

Level 3 = 0

Level 3 Assists with exercise program =210 Bathing = 105 mins Total = 315 (22.57 hours per month x $19.35) $436.82 per month

$1,773.44

$9.18

$673.95

96Overall, I do not find Nurse Yeganeh’s attendant care assessment report helpful in understanding the applicant’s functional limitations at that time. The report highlights the applicant’s pain complaints and then concludes that it interferes with his ability to carry out his self-care tasks without any further analysis. Further, the nurse did not undertake any functional testing of the applicant’s ability to carry out his self-care tasks. I also find many of the recommendations on Nurse Yeganeh’s Form 1 lacked an explanation and were inflated when compared to the attendant care assessment done shortly following the accident. For example, the time allocated for the applicant for dressing and undressing significantly increased and a recommendation was made to assist the applicant with mobility transfers with no medical reason to justify the need for it. Finally, time was recommended for coordination of attendant care with no explanation.

97Nurse Yeganeh’s recommendations for attendant care also conflict with what the applicant reported to Ms. van Loenen’s in the assessment done less than a month later. The applicant disputes that he reported to Ms. van Loenen that he was independent with self-care. However, the assessment of Nurse Yeganeh does not help clarify. For these reasons, I am unable to accept many of the recommendations made in Nurse Yeganeh’s Form 1.

98I also find Ms. van Loenen’s assessment and Form 1 inconsistent and that she underestimated the applicant’s attendant care needs as she recommends $9.16 per month of ACBs. In my view, hiring someone to complete these tasks for $9.16 per month would not be practical. The medical evidence supports that the applicant had arthroscopic surgery on his right knee in August 2016 and these assessments were completed one month prior. At the time of Ms. van Loenen’s assessment, the applicant was still complaining of right shoulder pain and pain and weakness in his right knee (associated by popping and locking) which was aggravated by walking. Ms. Van Loenen notes he had poor balance secondary to knee pain.

Level 1

99The applicant reported to Ms. van Loenen that his father was still assisting him with shaving and nail care. Her report says the applicant cannot access the mirror to shave effectively. As a result, Ms. van Loenen recommended 5 minutes of assistance once per week to assist the applicant with shaving under his chin. By contrast, Nurse Yeganeh’s Form 1 recommended 15 minutes per day seven days a week. I prefer Ms. Yeganeh’s recommendation as I find the time more reasonable to assist with this task. For reasons already noted above, I do not accept that the applicant required assistance with shampooing, drying and styling his hair. I also do not accept the amounts recommended by Nurse Yeganeh for dressing, feeding and mobility transfers as the report does not justify the need for it and there is inconsistent reporting regarding the applicant’s ability to complete these tasks.

100I find the 105 minutes of weekly assistance for level 1 services to be reasonable and necessary which when calculated as per the formula on the Form 1 equals $99.18 per month.

Level 2

101In regards to bedroom hygiene, Ms. Van Loenen states that the applicant is partially able to change his bedsheets. In my view, he can either do it or he cannot. The report says “donning bedsheets while sitting on the mattress requires greater strength and agility then the applicant currently demonstrates.” Yet, Nurse Yeganeh overlooked that the applicant may have required assistance with this task. I find Nurse Yeganeh’s recommendation of 70 minutes per week for assistance with bathroom hygiene reasonable as Ms. van Loenen’s report supports that the applicant did not have the functional strength to change bed sheets. I find if the applicant had limitations with doing this task, he would be limited in his ability to properly clean the bathroom at that time. For the same reason, I also find that the applicant would have required assistance with laundry related tasks as well and accept the 105 minutes recommended by Nurse Yeganeh. I do not accept the 60 minutes per week recommended by Ms. Yeganeh for coordination of attendant care as there was no justification for this expense in the report.

102I find the 175 minutes of weekly assistance for level 2 services to be reasonable and necessary which when calculated as per the formula on the Form 1 equals $137.95 per month.

Level 3

103Nurse Yeganeh recommended 210 minutes per week for to supervise the applicant in his home exercise program. Ms. Van Loenen’s report notes that the applicant’s Dad is present while in engages in home exercise program for safety. However, Ms. van Loenen did not find it reasonable for the applicant to have assistance with this task. I accept Nurse Yeganeh’s recommendation of 210 minutes per week. As already noted, these assessments were done one month prior to the applicant’s right knee surgery and the applicant had reported limitations with popping and locking. Therefore, I find the time allotted reasonable for safety. Regarding bathing, the applicant reported to Ms. van Loenen being independent but reported feeling nervous about his knee giving out and falling in the shower. Ms. Van Loenen recommended that the hand-held shower head and bench be brought back as a preventative measure while the applicant’s knee is healing. She stated this will allow him to maintain independence and not require ACBs while showering. I find Ms. van Loenen’s recommendation for zero for bathing to be contradictory. Consequently, I accept the 105 minutes recommended by Nurse Yeganeh for bathing.

104I find the 315 minutes of weekly assistance for level 3 services to be reasonable and necessary which when calculated as per the formula on the Form 1 equals $436.82 per month.

105I do not find the recommendations made by Ms. Arora in her third Form 1 recommending that the applicant required $3,112.79 per month in ACBs from August 15, 2017 onwards supported by the applicant’s submissions or the evidence. The bulk of this Form 1 recommended supervisory care. I have already determined that the evidence does not support that he needed it. The applicant submits that the CAT reports support his ongoing need for ACBs but he did specifically refer to how. Further, he acknowledges in his submissions that he did not require ACBs in 2017 at a certain point but does not address the time period. This is not helpful. I find that the Physiomed CNRs support that in the Fall of 2016 the applicant’s right shoulder and right knee impairments had improved as physiotherapy had resulted in increased strength and range of motion.

106In addition, I find that as of December 22, 2016, the applicant was independent in completing his self-care tasks. As highlighted by the respondent, a CNR of his family doctor on this date states that the applicant was “completing all activities of daily living normally” and stated, “[h]e has no difficulties looking after himself, his finances, or other day-to-day activities.” Further, the applicant’s submissions were inconsistent in addressing whether the applicant required ACBs at all in 2017. Therefore, I do not find the recommendations made by Ms. Arora in the Form 1 dated August 2017 is supported by the evidence. Consequently, I do not find that the applicant is entitled to ACBs beyond December 22, 2016.

ORDER

107For all of the above-noted reasons I order as follows:

1. The applicant is entitled to:

i) The OCF-18 in the amount of $4,033.65 for physiotherapy services, recommended by Physiomed on January 30, 2017.

ii) The OCF-18 in the amount of $2,714.43 for psychological treatment, recommended by Physiomed on May 9, 2017.

iii) The OCF-18 in the amount of $4,166.65 for psychological treatment recommended by Physiomed on March 1,2018.

(iv) The OCF-18 in amount of $1,621.44 (partially reasonable and necessary) for occupational therapy recommended by Pearson on October 12, 2016.

(v) The OCF-18 in the amount of $4,200.00 (partially reasonable and necessary) for catastrophic assessments recommended by Pearson on March 13, 2017.

(vi) The OCF-18 in the amount of $1,988.80 for a functional impairment assessment recommended by Pearson on February 13, 2017.

(vii) An ACB in the amount of$1,628.45 per month from September 5, 2015 to June 14, 2016, and $673.95 per month from June 15, 2016 to December 22, 2016.

2. The applicant is not entitled to:

i) $252.00 ($2,147.75 less $1,895.75 approved) for mileage for occupational therapy recommended by Pearson on June 20, 2015.

Released: September 27, 2022

Rebecca Hines

Adjudicator

V.H. v. Certas Home & Auto Company, 2018 CanLII 92886 (ON LAT)

Footnotes

1. 1The initial hearing was co-paneled by myself and Adjudicator Punyarthi whose Order in Council Appointment has expired.
2. 2Gore v. Rusk, 2022 ONSC 2893.
3. 3Interest was not included as an issue in dispute in the Tribunal’s case conference report and orders so it has not been addressed.
4. 4This was incorrectly listed in the Tribunal’s case conference report and order as an orthopaedic assessment.
5. 5Paragraph 21, Tribunal’s Decision dated April 6, 2020.
6. 6Ibid, Paragraph 28.
7. 7Ibid, paragraphs 34, 36 and 37.
8. 8Ibid, paragraphs 49,50, 63 and 64.
9. 9J.H. v. Intact Insurance Company, 2016 CanLII 60731 (ON LAT)
10. 10V.H. v. Certas, para 18.
11. 11O.A. and TD Insurance Meloche-Monnex, 2020 CanLII 87965 (ON LAT)
12. 12P.D. v. Western Assurance Company (Reconsideration Decision), 2019 CanLII 58149, para 14.
13. 13Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882
14. 14Arts (Litigation Guardian of) v. State Farm Insurance Co., (2008) 2008 CanLII 25055 (ON SC), 91 O.R. (3d) 394 (S.C.), paras 14 and 16.