Licence Appeal Tribunal File Number: 21-010728/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:
Sun Pingrong
Applicant
and
Safety Insurance Company
Respondent
DECISION
ADJUDICATOR:
Deborah Neilson
APPEARANCES:
For the Applicant:
Miryam Gorelashvili, Counsel
For the Respondent:
Crystal Schulz, Counsel
HEARD:
By way of Written Submissions
OVERVIEW
1Sun Pingrong, the applicant, was a Chinese tourist on a bus that was involved in a single vehicle accident on June 4, 2018 in Ontario and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Safety Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant claims that as a result of the accident she sustained a catastrophic impairment and is entitled to non-earner benefits (“NEB”), attendant care benefits, occupational therapy, psychological treatment, physiotherapy, life skills training, a wheelchair, medication, fees for seeing health practitioners, and interest. The applicant claims she suffers cognitive and psychological impairments as a result of sustaining a mild traumatic brain injury (“TBI”) in the accident. The respondent denied entitlement to the benefits claimed. It denies that the applicant’s present impairments were caused by her accident injuries and submits that they are a result of her pre-existing and/or post-accident health conditions.
PRELIMINARY ISSUE
The applicant did not fail to submit treatment plans
3The respondent submits there is a preliminary issue with respect to issues vi, vii, viii and ix listed in the case conference Order. It submits that it did not receive four of the treatment plans that are in issue. Under s. 38 of the Schedule, an insurer is required to respond within 10 business days of receipt of a completed treatment and assessment plan. An insurer is not required to pay for any treatment incurred before a treatment plan is submitted.
4The applicant submits that the office of Galit Liffshiz, occupational therapist, attempted to deliver a number of her treatment plans to the respondent: for $4,200 of occupational therapy dated February 5, 2019; for $4,200 of physiotherapy dated February 5, 2019; for $2,359.75 of assistive devices dated February 5, 2019; and for $4,169 of life skills training dated February 14, 2019. The applicant concedes that the treatment plans in issue were faxed to the wrong number on March 28, 2019.
5The evidence shows that Ms. Liffshiz’s office followed up with the adjuster by email on July 5, 2019. The adjuster responded on July 6, 2019, advising she was away and would reach out when she got back. It appears Ms. Liffshiz’s office tried to email them to the respondent on July 17, 2019 unsuccessfully and without the respondent’s consent, contrary to s. 64(2)(e) of the Schedule.
6The applicant has not provided any submissions or evidence as to when the treatment plans were actually received by the respondent outside of being attached to her submissions. However, she relies on the fact that an insurer’s examination under s. 44 of the Schedule (“IE”) was conducted by Dr. James Stewart on February 1, 2019, to determine whether the treatment plans were reasonable and necessary. Given that the respondent arranged for an IE to assess the treatment plans, I find that the respondent must have received them sometime prior to Dr. Stewart’s IE. Accordingly, the respondent’s submission that there is a preliminary issue on the basis that it never received the treatment plans fails.
ISSUES
7The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to an NEB in the amount of $185.00 per week from September 5, 2019 to date and ongoing?
iii. Is the applicant entitled to attendant care benefits in the amount of $10,428.45 per month from March 9, 2020 to date and ongoing?
iv. Is the applicant entitled to $3,448.89 for psychological services, proposed by Dr. Hannah Rockman of York Region Psychological Services in a treatment plan dated November 6, 2020?
v. Is the applicant entitled to $4,487.29 for occupational therapy services, proposed by Fathima Tuan Kichill in a treatment plan dated November 11, 2020?
vi. Is the applicant entitled to $4,200.00 for occupational therapy services from UP Clinic in Shanghai proposed in a treatment plan dated February 5, 2019?
vii. Is the applicant entitled to $4,169.00 for life skills training from UP Clinic in Shanghai proposed in a treatment plan dated February 14, 2019?
viii. Is the applicant entitled to $4,200.00 for physiotherapy services from UP Clinic in Shanghai proposed in a treatment plan dated February 5, 2019?
ix. Is the applicant entitled to $2,359.75 for wheelchairs or other mobility devices proposed by Galit Liffshiz & Associates Inc. in a treatment plan dated February 5, 2019?
x. Is the applicant entitled to $849.75 for transportation expenses submitted on an expense claim form (OCF-6) dated February 5, 2019?
xi. Is the applicant entitled to $518.23 for prescription medication submitted on an expense claim form (OCF-6) dated October 28, 2020?
xii. Is the applicant entitled to $1,294.44 for procedural fees to see a doctor/psychiatrist submitted on an expense claim form (OCF-6) dated March 17, 2021?
xiii. Is the applicant entitled to $2,570.06 for procedural fees to see a doctor/psychiatrist submitted on an expense claim form (OCF-6) dated January 21, 2022?
xiv. Is the applicant entitled to $1,203.09 for procedural fees to see a doctor/psychiatrist submitted on a claim form (OCF-6) dated March 23, 2022?
xv. Is the applicant entitled to $1,460.39 for procedural fees to see a doctor/psychiatrist submitted on an expense claim form (OCF-6) dated April 22, 2022?
xvi. Is the applicant entitled to $1.00 for a catastrophic impairment determination, submitted on an expense claim form (OCF-6) dated April 14, 2021?
xvii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
8The applicant has failed to prove that she sustained a catastrophic impairment or that she is entitled to NEBs. She is entitled to attendant care of CN ¥159,705 yuan, medication expenses of CN ¥612.32 yuan and interest on those benefits in accordance with the Schedule. She is not entitled to the remainder of the disputed treatment plans or the remaining expenses claimed on the OCF-6 expense claims forms for medication, transportation, and cost of assessments/treatment claimed as procedural fees.
PROCEDURAL ISSUES
9The case conference Order lists 16 issues, none of which are an award under s. 10 of Regulation 664 (“award”). However, in her submissions, the applicant has asked for an award and for a declaration that the respondent acted in bad faith. In my view, the issue of bad faith and an award are not properly before the Tribunal. Neither party has filed motions to add these issues in dispute to this proceeding. As such, the Tribunal will not consider these issues and will focus its analysis on the issues that are outlined in the case conference Order.
10The respondent has asked that an adverse inference be drawn against the applicant on the basis that the applicant did not have all of her medical records translated, only some of them. This is despite the respondent having the records since October 27, 2022, during which time it could have obtained a translation. According to the case conference Order, the parties had until 60 days prior to the hearing to produce any additional items responsive to the items already produced that they intended to rely on as evidence for the hearing. The respondent was advised by the Tribunal on October 7, 2022 that the hearing was scheduled for August 18, 2023. An amended notice went out on December 21, 2022 asking the parties to disregard the earlier notice and setting the hearing date for May 12, 2023. Accordingly, the respondent had from October 27, 2022 until March 12, 2023 to obtain a translation of the medical records if it believed that the translated records of the records provided by the applicant were incomplete. I was provided with no reason or evidence why the respondent did not or could not do so. There was no evidence that the respondent was dependant upon the applicant for a translation once it had the medical records or that it paid the applicant to obtain a translation. Accordingly, I find that there is no reason to draw an adverse inference against the applicant for providing a translation of the medical records she believes are relevant for proving her case, given that the respondent had ample opportunity to have the remaining medical records translated.
11The weight to be given the translations is commensurate with the reliability of the accuracy of the translation. However, the records that did contain a translation did not include the name of the person who translated them, their experience or certification in translating nor any attestation that the translation is true and accurate. Accordingly, very little weight can be given to the translation as I have no assurance as to the accuracy of the translation.
ANALYSIS
12The applicant is a 69-year-old resident of Shanghai, China whose tour bus drove into a ditch and struck a stone fence, killing three of her fellow passengers. The applicant submits that she sustained a mild traumatic brain injury (“TBI”) in the accident and is suffering from a number of TBI-related cognitive and psychological issues, including a somatic pain disorder diagnosed by numerous assessors. The respondent submits that the applicant sustained lacerations to her forehead requiring sutures. It admits that the applicant sustained a psychological impairment in the accident, but that given her tendency towards exaggeration and/or malingering, her accident related psychological impairments are mild. The respondent submits that the applicant’s present psychological impairments are likely related to a post-accident cerebrovascular event and/or falls that have no relation to the accident.
13I agree with the respondent and find that the applicant has not established on a balance of probabilities that she sustained more than glass and cuts to her head requiring stiches and a mild psychological injury for the following reasons.
The applicant did not sustain a traumatic brain injury
14The applicant has not established on a balance of probabilities that she sustained a mild TBI as a result of the accident. The only semblance of a diagnosis of a TBI is an alleged translation of what purports to be a Chinese hospital record of a neurologist dated September 20, 2018 stating the applicant had post traumatic brain injuries symptoms. The translation is handwritten by an undisclosed source. There is no indication of what the cause of the diagnosis is. I am unable to give any weight to the translation as the name and credentials of the translator are unknown and there is no attestation as to the accuracy of the translation. Nor is there any credible or corroborated evidence that this is a diagnosis of a TBI that it is causally related to the accident.
15The evidence is contradictory on whether the applicant was sleeping when the accident occurred and received cuts to her face from the bus window when it broke on impact or whether she was struck by a rock that came through the window knocking her unconscious. She submits that it is a fact that upon impact of the bus with the stone fence that a rock hit the applicant’s head and face. I disagree that this is a fact despite the report of Dr. Hannah Rockman, psychologist, of December 20, 2018. Dr. Rockman reported that the applicant was napping when the accident occurred and woke up as the bus was crashing into the embankment and then lost consciousness when a rock struck her head. Galit Liffshiz, occupational therapist, reported in her OCF-3 disability certificate dated November 30, 2018 that the applicant’s head and seat were struck by a rock, her seat got out of place and the applicant fell back and lost consciousness. However, Dr. Peter Bernstein, psychologist, reported on July 17, 2019 that the applicant said she thought she was sleeping but she went into a coma. A rock hit her head and somebody woke her up. She told Dr. James Stewart at his February 1, 2021 IE assessment that she was sleeping and then passed out. When someone woke her, she was covered in blood. I cannot give any weight to the applicant’s version of events that a rock struck her head, knocking her out, given that she told other assessors, as noted below, that she has no memory of being struck.
16According to the videos filed, the top of the rock fence that the bus struck came to a level that is well below the bottom part of the side window of the bus. Accordingly, it is not clear if the translator mistook that the applicant was struck by glass to mean a rock. This is supported by what the applicant told Dr. Jeffrey Karp, psychologist, as set out in his February 25, 2021 report. The applicant told Dr. Karp that she was sleeping and she remembered stones hitting her head and legs and she was knocked out. When she came to, everyone was gone and there was glass and blood everywhere. She did not say anything about the stones and said nothing about a rock. Further, I give more weight to the emergency records from the Ottawa Hospital than the applicant’s report of events made months or years later because the medical records were made contemporaneous to the accident. The emergency report dated June 4, 2018 states it was unclear if there was a loss of consciousness. The applicant told the social worker at the Ottawa Hospital on June 5, 2018 that she only recalled waking up to the paramedics assisting her out of the tour bus.
17Given the different versions of what happened, some corroborating evidence is required for me to find that the applicant was struck by a rock and not by shards of glass. However, I have no ambulance call report, despite the applicant being transported to the Ottawa Hospital from the accident scene by ambulance. Nor do I have a statement from anyone else at the scene of the accident to corroborate that the applicant lost consciousness because of accident injuries. There was no diagnosis at the Ottawa Hospital that the applicant sustained a TBI. Her neurological examination and CT scans taken of her head were all normal. Nor is there any indication that she has pre-accident or post-accident amnesia. Given that she fainted a couple of months after the accident, I am unable to determine that, if she did lose consciousness on the bus, it was because of an injury sustained in the accident and not some other reason.
18The applicant submits that the glass in her face is evidence that she sustained a head trauma. While there is no issue that she sustained cuts and glass in her face, some of which had to be removed in the hospital emergency department and resulted in stiches to her face, this does not mean that she was struck by a rock or that she lost consciousness.
19The applicant relies on the report of Galit Liffshiz, occupational therapist, dated January 7, 2019. Ms. Liffshiz reported that the applicant’s accident injuries were concussion with post-concussion symptoms, glass in her cheek requiring two surgeries in Ottawa and another in Shanghai, Major Depressive Disorder single episode, severe, with psychotic symptoms, Post Traumatic Stress Disorder, and Somatic Symptom Disorder with predominant pain. As an occupational therapist, she is not qualified to make any diagnosis, let alone provide an opinion on causation. Ms. Liffshiz did not identify who made those diagnoses. Since I have no information on the qualifications of who made those diagnoses, I am unable to give them any weight.
20Dr. James Stewart, general practitioner, and Dr. Henry Rosenblat, psychiatrist, speculated that the applicant may have symptoms indicative of a TBI, but deferred such opinions to a qualified health practitioner. Dr. Stewart issued an insurer’s examination report under s. 44 of the Schedule (“IE”) dated February 22, 2021. Dr. Rosenblat prepared a catastrophic impairment report for the applicant dated March 13, 2023. Speculation that the applicant has post-concussive syndrome or sustained a TBI does not meet the applicant’s onus of proof of a balance of probabilities.
21The only other indications of a TBI as a result of the accident are in two progress reports by a psychotherapist, Elaine Hoi Ling Lam, dated August 24, 2020 and November 6, 2020, and a treatment plan recommending an assessment prepared by Dr. Andrea Herschorn, a physician with a specialty in family medicine who had never seen or assessed the applicant. Ms. Lam did not elaborate on who diagnosed the applicant with a brain injury and post-concussive syndrome. Ms. Lam reported that the applicant has a Neurocognitive Disorder and Post-Concussive symptoms but did not indicate that it was caused by the accident. To the extent that is her diagnosis, I am unable to give it any weight as I have been provided with no evidence that she is qualified to make such a diagnosis. To the extent that she is relying on someone else’s diagnosis, again, I give it no weight because the author of the diagnosis has not been disclosed.
22Dr. Herschorn prepared a paper review report for the applicant dated April 14, 2021. She reported that the applicant was presenting with ongoing impairments related to persistent post-concussive symptomology. She did not elaborate on whether it was because of the post-accident falls, or whether those falls have any relation to the accident injuries. The Brockville Hospital emergency record dated June 14, 2018 recorded that the applicant had a fall within the last 60 days. However, the June 10, 2018 record states she had no falls in the past 60 days, which means she fell sometime between June 10 and June 14, 2018. The applicant told Ms. Liffshiz that after she returned to China, she had a fainting spell or loss of consciousness and fell, injured her left arm and leg. She also told Ms. Liffshiz that she then started using a walker and was subsequently diagnosed with a concussion and a brain injury and was prescribed Oxiracetam to improve her memory and Merislon for her vertigo (which is used to prevent and treat a disorder of the inner ear known as Ménière’s disease).
23The applicant told Dr. Rockman that on September 30, 2018, she fainted and woke up lying on her marble floor. However, the applicant’s medical records from China disclosed that she was hospitalized on September 29, 2018 and was not released until October 16, 2018. It may well be that the applicant has been diagnosed with TBI and post-concussive conditions. However, no qualified health practitioner has explained or opined on the cause. Given the applicant’s post-accident falls or fainting spells, I am unable to draw an inference, let alone find, that the applicant lost consciousness and was diagnosed with or sustained a TBI with multiple post-concussive issues as a result of this accident.
24The respondent submits that the applicant’s medical records disclosed she has a vitamin B12 deficiency, the symptoms of which include difficulty walking, balance issues, cognitive issues, nausea, weakness and fatigue. The applicant submits this is a Google based explanation and carries no weight. The applicant has been prescribed Methylcobalamin18 and Weishengsu B1 Pian 19, the cost of which was submitted to the respondent for reimbursement. These vitamins are used to treat vitamin B12 and B1 deficiencies. However, there is no medical evidence on the symptoms of a B12 or B1 deficiency. Even if I reject the respondent’s submission that the applicant’s symptoms are rooted in a B12 or B1 deficiency, this does not mean that the applicant has proven that the symptoms are causally related to the accident. The applicant’s symptoms have not been medically associated with her accident injuries. Without such evidence in the face of post-accident falls for which there are numerous possible explanations, I am unable to find on a balance of probabilities that the applicant sustained a TBI or post-concussive symptoms as a result of the accident.
25The applicant disputes the respondent’s submission that her bilateral vision obstruction is related to her pre-accident ocular health. She relies on a couple of articles in support of her submission; Mohammad Reza Sedaghat et al., “Induced Myopia Secondary to Blunt Trauma,” Case Reports in Opthalmological Medicine, Volume 19 (December 31, 2019) 1-5, found at: https://www.hindawi.com/journals/criopm/2019/1632828/; and Fintan E. Hughes et al., “Persistent pseudomyopia following a whiplash injury in a previously emmetropic woman.” American Journal of Opthalmology Case Reports, Volume 8 (September 22, 2017) 28-30, found at: https://pubmed.ncbi.nlm.nih.gov/29260112/. Although I am not bound by any information or opinion expressed in a medical article, I may consider and rely on the general medical information provided by the article as hearsay evidence is allowed at the Tribunal. However, the article is not fact specific and I can only speculate as to the how the conclusions in those articles apply to the applicant’s situation.
26Despite the applicant’s submissions and the article, I prefer the evidence directly related to the applicant, which is that the CT scan taken June 8, 2018 showed enlarged globes (eyeballs) and proptosis or protruding right eye that was determined to be unrelated to trauma. The June 4, 2019 CT scan of the applicant’s head disclosed ectasia of the eyeballs in keeping with staphylomas. There is no evidence that the ectasia was caused by the accident. While the articles relied on by the applicant pose the possibility that a TBI may cause myopia, there is no evidence that the applicant sustained a TBI in the accident. Further, without a translation of pre-accident and post-accident records, I am unable to determine if the myopia first occurred after the accident. Nor am I able to determine from these articles what the relationship or accounting they have for the applicant’s ectasia and staphylomas with respect to her pre-accident macular degeneration, cataract surgery and myopia. Accordingly, I am unable to find that the applicant has bilateral vision obstruction that was caused by a TBI. Nor am I able to find that a bilateral vision obstruction is proof of a TBI given the many other possible causes for a bilateral vision obstruction.
27The applicant underwent an MRI on July 17, 2018 in China that apparently disclosed she still has some glass in her cheek and that she has a slightly deviated septum with a small amount of lymphoid hyperplasia. The applicant relies on a medical article by Dr. Alen N. Cohen, “What Causes a Deviated Septum?” Southern California Sinus Institute (August 30, 2021) 1-5 found at: https://www.socalsinus.com/what-causesa-%20deviated-septum/ that states that a traumatic injury to the face is a very common event that can lead to a deviated septum. The article also states that a deviated septum is very common, affecting 80% of people. There are a variety of causes including congenital, trauma of childbirth, sports, falling down, car accident, assault, or cartilage growth with age. Any number of these are possible causes for the applicant’s deviated septum. I give no weight to the article as it is an advertisement/website for prospective surgical patients at the Southern California Sinus Institute, not an article from a recognized medical journal. Further, given the number of possible causes for a deviated septum, I am unable to find that the advertisement is support for the applicant having sustained a TBI in the accident or a deviated septum as a result of head trauma.
The applicant’s pain complaints are partially caused by the accident
28Ms. Lam reported that the applicant catastrophizes about her pain. Dr. Rockman, Dr. Rosenblat and Dr. Jeffrey Karp, psychologist, all agree that the applicant has a somatoform pain disorder. However, what is not clear to me is whether the pain disorder arises from the applicant’s injuries and mobility issues from her non-accident related falls or whether it is from the glass in her cheek. Ms. Lam did not list where the applicant had pain.
29Dr Rockman criticized Dr. Bernstein for not concluding that the applicant has a somatoform pain disorder as a result of the accident. Dr. Bernstein explained that when he assessed the applicant, she was asked several times in various ways to describe all of the problems, symptoms and or difficulties that she attributed to the accident. At that time, she did not report any physical symptoms or problems due to the accident. Accordingly, Dr. Bernstein's professional opinion was that when he saw her, the applicant did not meet the sufficient criteria to render a DSM-V diagnosis of Somatic Symptom Disorder. Dr. Rockman, however, does not appear to have asked the applicant to differentiate between accident related physical complaints and non-accident related physical complaints, despite being told by the applicant that she now requires a walker as a result of her post-accident falls.
30The applicant told Dr. Rosenblat that she still had glass in her face and it caused a lot of pain, and that she also had pain in her face, arms, shoulders, right leg, and left side of her head as a result of the accident. The medical records show she did not complain of pain to any part of her body other than her face and her right thigh on June 4 to 5, 2018. She did not report any pain complaints on June 8, 10 or 14, 2018. No explanation was provided by Dr. Rosenblat as to how these other pain complaints were related to the accident or when the applicant started experiencing them. Given that the applicant’s post-accident falls have resulted in her having to use a walker, I am not convinced on a balance of probabilities that if the accident had not occurred, that the applicant would not have a Somatic Symptom Disorder.
The applicant’s psychological impairments from the accident are no more than mild impairments
31The respondent relies on Dr. Lakshmi Voruganti’s report dated June 24, 2022. Dr. Voruganti determined that at the time of his assessment, the applicant did not have any psychiatric injuries from the accident. She likely had PTSD as a result of the accident, but this was subsumed by a probable cerebrovascular event in November 2018. He diagnosed her with depressive disorder due to another medical condition with mixed features, possible mild vascular neurocognitive disorder, unspecified personalities disorder and malingering. He explained his diagnosis was based on microangiopathic changes, decreased cerebral perfusion and subcortical lacunar infarcts related to longstanding poorly controlled hypertension, diabetes, dyslipidemia and possible cardiac arrhythmias. He reported that this was supported by evidence of brain atrophy and decreased cerebral blood flow noted in January 2019. He stated that the clinical syndrome presents itself as vascular depression, a subcortical dementia or a pseudo-bulbar palsy.
32The applicant submits that I should place more weight on Dr. Rosenblat’s opinion because arbitrators at the Financial Services Commission of Ontario (“FSCO”) gave more weight to his opinion in various cases than other experts. A Director’s Delegate at FSCO found another expert did not have as much collateral information and put an improper interpretation on some test results in State Farm Mutual Automobile Insurance Company v. A.B., 2019, ONFSCDRS 29. The applicant also relies on 17-006816 v The Co-operators General Insurance Company, 2018 CANLII 110950 (ONLAT) and Kaloczi v Wawanesa Mutual Insurance Company, 2022 CANLII 117089 in which the Tribunal gave more weight to Dr. Rosenblat’s IE reports and submits that because of these decisions, I should accept that Dr. Rosenblat is a balanced and objective assessor with extensive experience assessing for both insurer and insureds.
33Whether or not other adjudicators or arbitrators have given more weight to Dr. Rosenblat’s opinion than other experts in other matters or at FSCO is not the test for determining whether an expert provides an unbiased, objective, well balanced opinion. If he has not provided such an opinion in this case, the determination of other triers of fact in other matters will have no bearing on the weight I give to Dr. Rosenblat’s opinion. If I were to accept the applicant’s submission without conducting my own assessment of Dr. Rosenblat’s assessment and opinion based on evidence, his CV and his acknowledgement of expert’s duty, I would be abdicating my duty as an adjudicator.
34I am unable to give more weight to Dr. Rosenblat’s opinion than Dr. Voruganti’s for the following reasons. First, Dr. Voruganti has a PHD in neuroleptic dysphoria and, therefore, is more knowledgeable on the role the applicant’s Quetiapine prescription has with respect to the accident. Dr. Rosenblat believed the applicant was 70 years old as of February 23, 2023 and he referred to her as Ms. Ye. More importantly, Dr. Rosenblat had a copy of Dr. Voruganti’s report, but did not comment on how or why his opinion differed from Dr. Voruganti. Instead, Dr. Rosenblat deferred to the opinion of Dr. Michael Hanna, a physician with a speciality in family medicine and a focus on trauma medicine. Nor did Dr. Rosenblat comment on the applicant’s fainting/falls and the subsequent hospitalizations and the affect her mobility issue have had on her mental health.
35Dr. Hanna disagreed with Dr. Voruganti’s opinion that the applicant’s neuropsychiatric syndrome resulting from cerebrovascular disease secondary to uncontrolled hypertension, diabetes and cardiac history is the underlying cause of her documented presentation. Dr. Hanna thought the opinion was plausible but unlikely for the following reasons;
i. Blood pressure during hospital admission was normal and below normal, in contrast to Dr. Voruganti's opinion that it was uncontrolled. The blood sugar level was a random blood sugar and was not a fasting test, and in the context of normal kidney and liver functions, it does not indicate poorly controlled diabetes.
ii. There is no evidence on head CT scans done of any pathology or signs of lacunar infarcts, as indicated by Dr. Voruganti.
iii. There is one transcranial doppler handwritten note from China indicating decreased blood flow velocity in the middle cerebral artery (“MCA”) and anterior cerebral artery (“ACA”), which is not diagnostic of brain infarcts or cerebrovascular insult.
iv. The applicant had a history of patent foramen ovale (“PFO”), which was surgically closed in 2012. Surgically repaired PFO has the advantages of permanent closure of the defect, prevents paradoxical emboli and strokes and does not require long-term anticoagulation.
v. With respect to brain atrophy, there is a translated handwritten note dated January 10, 2019, which mentions brain atrophy; this is a common finding in a person in this age group. If Ms. Sun had a stroke that occurred in November of 2018, as per Dr. Voruganti’s narrative, one would expect localized encephalomalacia in the area of stroke rather than generalized brain atrophy.
36Dr. Voruganti did not address Dr. Hanna’s comments but stated Dr. Hanna would not have experience in assessing, diagnosing and treating patients with late life depressive disorder (“LLDD”) because of the nature of his practice. He pointed out that the patient population with LLDD is seen on the adult psychiatry, geriatric or continuing care units and is managed by psychiatrists, geriatric psychiatrists or geriatric physicians. Dr. Voruganti critiqued Dr. Hanna on the basis he ignored a history of 15 years of pre-accident treatment for diabetes and hypertension and non-compliance with her treatment.
37I have been provided with no reason for why I should prefer a family physician’s opinion over that of a psychiatrist on the cause of the applicant’s brain atrophy and its effect on psychological function or the effects of the applicant’s diabetes, hypertension, vascular and thyroid issues on her psychological function. Dr. Hannah’s critique ignores that the random glucose test showed glucose levels were higher than normal. Further, the applicant’s Cl (chloride) results, which deal with kidney function, were higher than normal. There is no evidence that only a lacunar infarct is the only kind of stroke a person can have.
38Dr. Voruganti’s opinion is supported by the Ottawa Hospital records. It appears that the staff at the Ottawa Hospital were concerned with the applicant having a stroke given that the CT scan dated June 8, 2018 was conducted to rule out carotid dissection or infarct.
39The applicant claims that her diabetes was controlled through medication. However, her medical records from China allegedly disclose that she was diagnosed with high blood glucose and hypertriglycemia (too much fat) and hyperuricemia (associated with gout), fatty liver, gallstones and biliary liver on August 29, 2016. If the translations are accurate, the records do not support that the applicant’s diabetes was controlled.
40The respondent submits that the July 27, 2018 brain scan that allegedly shows decreased blood flow velocity through the MCA and ACA, i.e., the arteries that supply blood to the brain, is evidence of a stroke and supports Dr. Voruganti’s opinion. The applicant submits that if the July 27, 2018 brain scan discloses a stroke, that it could definitely have been caused by blunt trauma. She relies on an internet article by an occupational therapist, Courtney Maher, of Flint Rehab, which is based in Irvine, California. Similar to my discussion about the Southern California Sinus Institute website, this is an advertisement/website for the services of Flint Rehab. An occupational therapist licenced to practice in Ontario is not qualified to provide diagnosis. I have been provided with no reason why an American occupational therapist is any more qualified. Ms. Maher cites some medical articles, but those are not included and, accordingly I am unable to verify that she has properly quoted the articles. Although hearsay is allowed at the Tribunal, the weight to be given to it is subject to its reliability. I give little weight to a summary of articles prepared by an occupational therapist in support of garnering clients. Further, the article does not assist the applicant in showing that if she sustained a TBI that caused a stroke, the TBI was sustained in the accident and not one of her subsequent falls.
41The respondent relies on the January 10, 2019 MRI that allegedly shows the applicant has brain atrophy and submits that it is not accident related. The applicant relies on an article by John D. MacKenzie et al., “Brain Atrophy in Mild or Moderate Traumatic Brain Injury: A Longitudinal Quantitative Analysis.” AJNR AM J Neuroradiol, Volume 23 (October 23, 2002). 1509-1515. The study concluded that whole-brain atrophy occurs after mild or moderate TBI and is evident at an average of 11 months after trauma. The study involved patients who had central nervous system bleeding, contusion or infarction smaller than 2.5 cm on MRI imaging. The study does not assist the applicant as her diagnostic imaging taken right after the accident was devoid of any bleeding, contusion or infarction. The authors of the study cautioned that, because of the small sample size, the observations should be viewed as preliminary. Given that, I cannot give it much weight. Further, the imaging of the applicant’s brain atrophy showed up a month after the accident according to the anonymous translations, not eleven months. Accordingly, the article does not prove on a balance of probabilities that the applicant’s post-accident brain atrophy is related to or caused by her accident injuries or that she suffered a TBI in the accident. Nor does it diminish the weight to be given to Dr. Voruganti’s opinion.
42The respondent submits that there was a deterioration in the applicant’s health that cannot be attributed to her accident injuries. It relies on the disability certificate of Corriander Champion, occupational therapist, dated August 20, 2018. The applicant submits that Ms. Champion’s assessment was a pre-screen assessment and should be given little weight. She submits that Ms. Liffshiz’ assessment two months later should carry more weight as it was a comprehensive in-person assessment. I have no evidence that Ms. Champion only did a pre-screen assessment in order to prepare her disability certificate. The only support for the applicant’s submission is an anonymous translation of the applicant’s medical records stating that she was diagnosed with PTSD on July 31, 2018. At that time, she was allegedly complaining of headache, dizziness, irregular heartbeat, poor sleep, anxiety and tension. She was prescribed Paroxetine (for depression), Fluvoxamine (obsessive compulsive disorder) and Mirtazapine (for depression). If the records are accurate, no cause for these complaints was provided. Therefore, I do not find the applicant’s submission that the difference between the applicant’s health in August 2018 compared to October 2018 is due to the thoroughness of the occupational therapists’ assessments. The applicant’s submission does not account for the lack of complaints on June 8, 10 and 14, 2018. I find a more reasonable explanation is the event that occurred in September 2018 resulting in the applicant’s hospitalization and Dr. Voruganti’s explanation of a cerebrovascular disease. I have no evidence that this event was accident related.
43Dr. Rockman’s opinion in her February 20, 2020 report is that the applicant experienced a Major Depressive Disorder and PTSD due to her medical condition, including severe brain injury, Neurocognitive Disorder and Post-Concussive symptoms. I take this to mean that the cause of the Major Depressive Disorder and the PTSD is the neurocognitive disorder and any TBI the applicant may have sustained from her post-accident falls. This is because Dr. Rockman did not include severe TBI, the Neurocognitive Disorder and the Post-concussive symptoms in her accident related diagnosis at paragraph 2 page 3 of her report. Her diagnosis is, therefore, more in line with Dr. Voruganti’s than Dr. Rosenblat who did not consider the post-accident falls.
44The applicant underwent a psychological assessment with Dr. Rockman, psychologist, on November 21, 2018. It is not clear how the assessment was conducted as the applicant was in China at the time. Dr. Rockman reported that she cannot vouch for the veracity of all of the information offered by the applicant or for the completeness of the details surrounding the events. The applicant disclosed that she had no pre-accident health problems. On September 30, 2018, she fainted and woke up on her floor and from November 2 to 10, 2018, she was hospitalised for symptoms of post-concussive disorder and fluid in her chest. She was being treated by a psychiatrist who had prescribed three different medications that the applicant felt were not working. She was experiencing insomnia and nightmares of the accident where her friend’s head was smashed in and his wife was screaming, holding his body and the applicant had to walk over bodies on the ground. The applicant’s psychiatrist told her to stop thinking of the accident. She stopped seeing her friends because they want to talk of the accident. She is also self conscious of her scars to go out.
45Dr. Rockman diagnosed the applicant with: Major Depressive Disorder, single episode, severe, with psychotic symptoms; PTSD; and Somatic Symptom Disorder with predominant pain. Dr. Rockman’s opinion was that, on a balance of probabilities, the applicant’s impairments were caused by the accident. Dr. Rockman did not comment on the applicant’s fall between June 10 and 14, 2018. She did not offer any explanation of what role the fall in September 2018 and the hospitalisation in November 2018 played in her diagnosis of the applicant nor why the accident was the cause of her impairments rather than her other health issues. I am unable to give her opinion much weight given that the only pain complaint the applicant made contemporaneous with the accident was to her face, head and right hip and right femur (as set out in the Ottawa Hospital clinical notes and records). She did not have any musculoskeletal pain complaints at her other hospital attendances before she left for China. However, she told Dr. Rockman she had a number of intermittent musculoskeletal complaints.
46The applicant underwent an insurer’s examination under s. 44 of the Schedule (“IE”) by Dr. Bernstein, psychologist. The assessment was conducted by videoconference with an interpreter present with the applicant. The validity measures embedded in the Personality Assessment Inventory (“PAI”) revealed that the applicant was inconsistent and, therefore, no interpretation of her clinical scale PAI profile could be provided. Dr. Bernstein’s accident related diagnosis was Major Depressive Disorder in partial remission, Generalized Anxiety Disorder, and features of PTSD. He said despite her reports of voices calling her name, given the data, he opined that her presentation was not consistent with active psychosis. She also underwent a virtual IE assessment with Dr. Karp, psychologist, who opined in his report dated February 25, 2021 that the applicant’s symptoms at that time continued to meet the criteria for Major Depressive Disorder, Somatic Symptom Disorder Predominant Pain, and Posttraumatic Stress Disorder. He thought her symptoms were likely in the more moderate range given her symptom magnification. As well, some symptom dependency may have developed.
47Although Dr. Voruganti’s opinion appears to be a stand alone opinion, he is the only expert who offers a cogent opinion that explains the applicant’s lack of complaints after her hospital release on June 5, 2018 until she left Canada and her post-accident falls and hospitalizations in China. Dr. Voruganti is the only qualified expert who has taken into consideration the applicant’s other health issues. Dr. Rosenblat deferred his opinion and I have no evidence that any of the psychologists are qualified to determine how diabetes, hypertension, vascular and thyroid issues and brain atrophy affect psychological function. I have no doubt that the applicant suffered symptoms of PTSD as a result of the accident. However, I find that, but for the accident, she would still have all of her present psychological, cognitive and neurological impairments. Given the applicant’s symptom magnification, I find that her PTSD as a result of the accident is, at most, mild.
The applicant has or has not proven sustained a catastrophic impairment
48An OCF-19 application for catastrophic impairment dated April 14, 2021 was submitted by Dr. Herschorn. She determined that the applicant sustained a catastrophic impairment due to a mental or behavioural disorder under criteria 8 on the application, which is s. 3.1(1)8 of the Schedule.
49The applicant bears the onus to prove on a balance of probabilities that she is catastrophically impaired. In reference to Criterion 8, she must prove on a balance of probabilities that, as a result of the accident, she has a marked or Class 4 impairment in at least three of the four spheres of function as outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “AMA Guides”) due to a mental or behavioral disorder. The spheres of function are adaptation, activities of daily living, social functioning and concentration, persistence and pace. The severity of the impairment is classified as follows:
Class 1: No impairment
Class 2: Mild impairment
Class 3: Moderate impairment
Class 4: Marked impairment
Class 5: Extreme Impairment
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
50The occupational therapists who have assessed the applicant are consistent in their reports that the applicant requires constant supervision due to a suicide risk, is wheelchair bound and requires assistance with bathing, cooking, housekeeping, medication administration, and is socially isolated. For the reasons given above, I am unable to find that these functional limitations are causally related to the accident.
51The respondent submits that I should give little weight to Dr. Herschorn’s opinion because her primary practice is cosmetic rejuvenation treatment. According to Dr. Herschorn’s brief background in her file review report dated April 14, 2021, her training in the AMA Guides is with respect to physical impairment ratings, not behavioural or mental impairment ratings. I give little weight to Dr. Herschorn’s opinion because she only did a paper review of the applicant and did not provide any examples or analysis of how or why the applicant’s accident related psychological impairments preclude useful functioning. She determined that the applicant has a marked impairment in three of the four spheres of function but did not list which areas of function.
52The applicant relies on the report of Dr. Rosenblat. He determined that the applicant sustained a Class 4 marked impairment in all four spheres of function. As stated above, given Dr. Rosenblat deferred the issue of causation of the applicant’s psychological impairments to an emergency physician, I do not give any weight to Dr. Rosenblat’s opinion on catastrophic impairment.
53The applicant submits that I should give little weight to Dr. Voruganti’s opinion because he not a Certified CAT Assessor and is not registered as C-CAT Certified with the Canadian Society of Medical Evaluators. The applicant submits that Dr. Voruganti listed on his CV that he completed a CAT course with the Canadian Academy of Psychologists in Disability Assessment (“CAPDA”) and that is a false claim. I do not see where on his CV that Dr. Voruganti stated that he completed the catastrophic impairment course offered by CAPDA, only that he attended the course. However, he received catastrophic impairment assessment certification from the Canadian Association of Psychiatry and Law (CAPL) in October 2022.
54Section 45(2)1 of the Schedule requires the assessment to be conducted by a physician. Dr. Voruganti meets that definition. I was presented with no evidence or authority that catastrophic impairment assessment certification by the CAPL somehow makes Dr. Voruganti’s expertise in the AMA Guides less than Dr. Rosenblat’s. The applicant submits that the CAPDA course is the leading program for certification of assessors but has provided no evidence that is the case. I have been provided with no evidence that Dr. Voruganti is not adequately trained in the AMA Guides. Given that there is no governing body on what certification is required for being familiar with the AMA Guides, and it appears the Dr. Voruganti has received some training in the AMA Guides, a lack of certification by CAPDA is not reason to reduce the weight I give to Dr. Voruganti’s opinion.
The applicant has not proven she has a marked or extreme impairment in her activities of daily living
55Activities 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.
56Ms. Sun reported to Dr. Voruganti that she is unable to walk, stays in a wheelchair or a bed all the time, never goes out and needs 24-hour supportive care with her personal hygiene, feeding, dressing and toileting. She reported that she is able to use a phone and watch TV. She indicated that she communicates with her brother daily and communicates with her lawyer and psychotherapist. She is able to attend medical appointments. However, the evidence of Dr. Rockman is that the applicant’s mobility issues were caused by her falls that occurred after the accident and that her need for care for her personal hygiene, feeding, dressing and toileting is due to musculoskeletal or TBI symptoms. The only pain complaint that is clearly attributable to the accident is her cheek pain, which only interferes with her sleep. Accordingly, I am unable to find that the applicant has a Class 4 marked or Class 5 extreme impairment in ADLs as a result of the accident.
The applicant suffers a marked impairment in social functioning as a result of the accident
57According to the AMA Guides, the factors to consider under this domain are an individual’s capacity to interact appropriately and communicate effectively with others, including getting along with family members, friends, neighbours, grocery clerks, lenders, etc. Some examples of impaired social functioning would be a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, etc. A person’s strength in social functioning could be demonstrated by their ability to initiate social contact with others, communicate clearly with others, interact and actively participate in group activities, exhibit cooperative behaviour, consideration for others, awareness of others’ sensitivities and social maturity.
58Ms. Sun reported to Dr. Voruganti that that she had been largely confined to her home other than to attend medical appointments. She has not spoken with her friends or extended family. She reported limitations in participating in leisure activities because of her pain and weakness. Dr. Rockman had reported that concerns over her appearance and limitations and how others view her caused the applicant significant levels of distress and her shame and embarrassment led to social isolation.
59The psychologists and psychiatrists all noted that the applicant displayed some psychosis and paranoia. None of them opined that it was caused by the accident. However, there is no evidence that the applicant was socially isolated prior to the accident because of psychotic tendencies or paranoia. The fact that she was on a North America tour at the time of the accident travelling with friends implies that she was not socially isolated or withdrawn. Accordingly, regardless of the cause of the psychotic tendencies, the accident and the subsequent scarring clearly affected the applicant’s psychological health to the extent that it significantly impeded her social functioning as she stays home and only sees medical personal, her personal support worker and her close family members. For these reasons I find that she has a Class 4 marked impairment in social function.
The applicant has not proven she has a marked or extreme impairment in concentration, persistence pace
60Concentration, 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. Deficiencies in concentration, persistence, and pace may be observed at work or in work like settings. This should include relevant information from the mental status examination and from psychological testing.
61Ms. Sun reported to Dr. Voruganti fluctuating pain, fluctuating mood and fluctuating levels of concentration, persistence and pace. She spends most of her time in the apartment and is currently not engaged in any activities that require sustained attention and focus. However, no mental status assessment or cognitive function assessment was administered by any of the assessors. Given the applicant’s post-accident falls and TBI, my preference for a diagnosis of mild psychological impairments at this time as a result of the accident and the weight I have given to Dr. Voruganti’s diagnosis, I am unable to find that the applicant has established that she has a Class 4 marked or Class 5 extreme impairment in concentration persistence or pace as a result of the accident.
The applicant has not proven she has a marked or extreme impairment in adaption
62Deterioration 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.
63Dr. Voruganti reported that the applicant’s adaptive skills are completely compromised, some related to her illness (frontal lobe symptoms) and others related to personality-related maladaptive behaviour, neither of which he thought were accident related. She has not been involved in any productive activities since the accident, ceased all her community-oriented and volunteering activities and adopted a "sick role.” He noted that there are illness-related factors (depressed mood, loss of motivation and cognitive deficits) as well as non-illness-related factors (financial incentives) that are perpetuating this behaviour.
64Given my preference for Dr. Voruganti’s opinion for the stated reasons and given the applicant’s subsequent falls, I am unable to find that the applicant has established that she has a Class 4 marked or Class 5 extreme impairment in adaption as a result of the accident.
65The applicant has failed to prove on a balance of probabilities that she has Class 4 marked impairment in at least three of the four spheres of function or a Class 5 extreme impairment in one of the spheres of function due to a mental or behavioural disorder as a result of the accident. Accordingly, the claim for catastrophic impairment determination is dismissed.
The applicant is not entitled to non-earner benefits
66Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
67The respondent paid NEBs up to July 29, 2019. The respondent submits that it sought information pursuant to s. 33 of the Schedule and an OCF-3 disability certificate from the applicant under s. 37 of the Schedule. It submits that it is not required to pay an NEB for the period of time the applicant failed to provide information and the OCF-3 and relies on 18-004128 v TTC Insurance Company Limited, 2019 CanLII 63358 (ON LAT) Company, and Gillis v. Economical, 2022 CanLII 114469 (ON LAT). Under s. 37(1) of the Schedule, the respondent was entitled to request an updated OCF-3 to determine whether the applicant was still entitled to NEBs. Under s. 37(3), no NEBs are payable from 15 business days after the request until the OCF-3 is provided.
68I find that s. 37(3) of the Schedule does not assist the respondent. The respondent advised the applicant by letter dated November 7, 2018 that it approved NEBs up to November 26, 2018. In that letter, the respondent requested an updated OCF-3, an OCF-12, and verification that the applicant was participating in treatment per s. 57 of the Schedule. The respondent wrote to the applicant again on March 5, 2019 advising that it did not hold her in non-compliance at that time, but that it still required an updated OCF-3. Ms. Liffshiz’s November 30, 2018 OCF-3 based on her October 28, 2018 assessment of the applicant was received by the respondent on April 19, 2019. It does not appear that the respondent requested another updated OCF-3 after that time. However, it submits that it continued to pay NEBs up to July 29, 2019 in good faith.
69On September 5, 2019, the respondent wrote to the applicant and advised her that it was terminating NEBs effective July 29, 2019 based on the findings of Dr. Bernstein and under s. 37(2)(a) of the Schedule for failure to provide an updated OCF-3. I find that, given that the applicant had undergone extensive treatment and was hospitalised on three occasions after Ms. Liffshiz assessed her on October 28, 2018, it was not unreasonable for the respondent to request an updated OCF-3 after it received Ms. Liffshiz’s November 30, 2018 OCF-3. However, I have no evidence that an updated OCF-3 was requested between March 5, 2019 and the termination letter of September 5, 2019. Given that there is no evidence that an updated OCF-3 was requested after April 19, 2019, the respondent is not able to rely on s. 37(3) of the Schedule as a reason to deny NEBs.
70I accept that the applicant may have curtailed some of her socializing due to her scarring from the accident. However, I have determined that the applicant’s present functional impairments are not causally related to the accident for the reasons already given. Dr. Rockman also criticized Dr. Bernstein for the brevity of his questions about the applicant’s activities of daily living. Dr. Bernstein denied that his questions about the applicant’s activities of daily living were brief. He reported that he asked her several times and in several ways to describe how her activities or lifestyle may have changed as a result of the accident. The applicant gave very little information about her activities of daily living.
71I prefer Dr. Bernstein’s opinion over Dr. Rockman’s because Dr. Rockman did not address what impact the applicant’s falls have had on her pain complaints and whether her complaints of neck, back and shoulder pain are unrelated to the accident. Further, Dr. Bernstein conducted testing with validity measures. There is no evidence that Dr. Rockman did. Dr. Bernstein is not the only assessor who was cautious about the applicant exaggerating her symptoms. Dr. Voruganti also had concerns as is apparent with his diagnosis of malingering as had Dr. Karp. The level of the applicant’s impairment because of pain and/or psychological distress is based on her subjective complaints. Her subjective evidence is not reliable because she is malingering or answered psychological testing in an inconsistent fashion and is, therefore, of little use for determining her level of impairment. Accordingly, for these and the reasons given above, I am unable to find that the applicant is entitled to NEBs.
72Under s. 33 of the Schedule, the applicant is required to provide information reasonably required by the respondent to assist in determining the applicant’s entitlement to the NEB. Under s. 33(6), the respondent is not liable to pay the NEB in respect of any period during which the applicant fails to provide the information unless she has a reasonable excuse. I find that the applicant is barred from receiving NEBs for the period of time that she has failed to provide information confirming whether or not she was employed at the time of the accident.
73On September 5, 2019, the respondent sought information from the applicant on whether she was employed at the time of the accident or if she had retired. I find that this information was reasonably required to adjust the claim because the applicant was claiming she was entitled to NEBs. However, she told various assessors that she was earning income from tutoring pharmacy students at the time of the accident. She told Dr. Rosenblat that she was still teaching pharmaceutical theory one or two hours per week in the form of tutoring and she was paid for this work. She had a few students, and she has not tutored since the accident. If the accident had not occurred, she would still be tutoring.
74Under s. 12(1)1 of the Schedule, the respondent is not required to pay NEBs if the applicant qualified for an income replacement benefit (“IRB”). If the applicant was unable to engage in the essential tasks of her tutoring because of her accident injuries, then she may well have qualified for an IRB. Accordingly, the information requested by the respondent about the applicant’s employment status was reasonably required in order for the respondent to adjust the claim. However, there is no evidence that the applicant provided the requested information. Nor has any reasonable explanation been provided for why the information was not forthcoming. Accordingly, I find that under s. 33(6) of the Schedule, NEBs are not payable. For all of these reasons, the applicant’s claim for NEBs is dismissed.
The applicant is entitled to attendant care benefits
75Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for attendant care benefits must be in the form of, and contain the information required to be provided in the version of the document entitled Assessment of Attendant Care Needs (“Form-1”). The expenses must be incurred, which means, if they were provided by a person who did so in the course of their employment, the insured has received the goods and has either paid for the goods, promised to pay or is legally obligated to pay for the services.
76The applicant submits that she is entitled to $10,428.45 per month for attendant care from March 9, 2020 to date and ongoing based on the recommended by Ms. Liffshiz in her October 28, 2018 Form 1. The maximum attendant care benefit payable for a non-catastrophically impaired person such as the applicant is $3,000 per month. The applicant submits she has paid out over $28,000 for attendant care. The respondent submits it has not received enough information to determine whether the amounts claimed were incurred.
77The respondent has not conducted any attendant care IE assessments to determine whether the applicant is entitled to the attendant care claimed. It submits that it has been unable to do so because the relationship between China and Canada deteriorated just before the respondent was planning to send an occupational therapist to China to conduct an attendant care assessment. I accept that the political climate made it unsafe for the respondent to conduct an in-person IE assessment in China.
78I find that any attendant care the applicant requires as a result of the accident is due to her psychological impairments as there is no evidence that her mobility or musculoskeletal issues are accident related. Dr. Rockman recommended 24 hour daily supervision due to the applicant’s suicidal ideation. Dr. Bernstein recommended that the applicant’s attending healthcare professionals monitor her closely for suicidal ideation. The applicant advised Ms. Liffshiz that upon her return home from Canada, she started self-harming herself by hitting her head against the wall. She wants assisted suicide. However, for the reasons already given, I am not satisfied that the suicidal ideation or self harm are because of the accident injuries as opposed to the health complications that resulted from or caused the applicant to fall post-accident. Dr. Bernstein’s opinion was that the applicant did not require attendant care as a result of her accident injuries as her psychological conditions were not severe enough. Despite his opinion, the respondent has not denied the applicant is entitled to attendant care benefits.
79Under s. 42(6) of the Schedule, the respondent is required to begin paying attendant care expenses incurred based on the most recent Form 1 pending receipt of an attendant care IE assessment and Form 1. The only reason the respondent has not paid attendant care benefits is that it claims it did not have enough information to determine whether the expenses were incurred as defined under s. 3(7)(e) of the Schedule.
80The respondent relies on s. 33 of the Schedule and 18-004128 v TTC Insurance Company Limited, 2019 CanLII 63358 (ON LAT) Company, and Gillis v. Economical, 2022 CanLII 114469 (ON LAT) to argue that the applicant’s failure to provide an OCF-3 means no attendant care is payable from March 20, 2019. This case does not assist the respondent as the failure to provide an OCF-3 only related to the insured’s claim for non-earner benefits in that case. There is no requirement in the Schedule for an insured person to produce an OCF-3 in order to be entitled to an attendant care benefit.
81The evidence is that the applicant has been receiving attendant care from Baoquan Wu, who is, according to the translation of his resume, providing the care in the course of his employment and occupation that he was ordinarily engaged. He was previously employed in the care of the elderly and in infant care.
82The respondent asked for confirmation of whether Mr. Wu was normally employed as an attendant care giver prior to the accident as early as January 19, 2019 but was not provided with Mr. Wu’s CV until October 2022. The respondent also asked the applicant to translate Mr. Wu’s invoices and to produce the applicant’s bank information to confirm that she paid for the attendant care. The respondent submits that the request for this information was made under s. 33 of the Schedule and that attendant care is not payable for the period of time the information was not forthcoming under s. 33(6). I do not agree.
83The respondent included evidence of s. 33 requests made for medical records required in order to adjust the applicant’s claims for medical and rehabilitation benefits. However, I could not find any such letters with respect to attendant care benefits. The letters requesting confirmation on whether the applicant’s attendant care provider was a friend, family member or professional provider make no mention of s. 33, the deadline for when the information was required or that failure to provide the information without a reasonable excuse could result in a forfeiture of attendant care benefits. I find this information should have been contained in the request letters if the respondent intended to rely on s. 33(6) to deny attendant care. This is because the Schedule is consumer protection legislation and the consequences of s. 33 are harsh if no reasonable excuse is given when an insured person fails to comply with s. 33(1) of the Schedule in a timely manner. The absence of an explanation of the consequences to the applicant’s attendant care benefits for failure to comply with s. 33(1) means that the applicant was not required to provide a reason for her delay in providing the information.
84I find that the respondent had enough information to adjust the applicant’s claims by October 22, 2022 when the respondent admits it received Mr. Wu’s invoices and his CV. If the respondent required a translation, it was free to obtain one. There was no obligation on the applicant to provide a translation.
85The respondent submits that the receipts the applicant submitted for attendant care are questionable because they do not correlate with the bank statements. However, no explanation or example was provided as to how they are supposed to correlate or how they do not correlate. Nor have I been provided with any authority that the applicant is required to prove that she has paid for all of the attendant care. Under s. 3(7)(e) of the Schedule, an expense is also incurred if the insured person received the goods or service and has promised to pay the expense or is otherwise legally obligated to pay the expense. In this case, the applicant’s statements to the various assessors that she has received attendant care services and Mr. Wu’s invoices are evidence that the applicant received the services and has either paid or is obligated to pay for them.
86The respondent questioned the need for attendant care while the applicant was hospitalized in September 2018 for five weeks, November 2018 for eight days, and 12 days in January 2019. The applicant has provided evidence that hospital care in China is substandard unless private care is retained. No evidence to dispute the applicant’s evidence was before me. Therefore, I am satisfied that the applicant was not receiving full care from hospital staff while she was in the hospital and, accordingly, received the assistance of her personal support worker while in hospital.
87The respondent submits the contemporaneous receipts of Mr. Wu indicate he did grocery shopping, cooking, mopping, cleaning, and washing clothes for the applicant, all of which is housekeeping. It submits that the applicant has produced a chart prepared by an unknown person that purports to provide a breakdown of the time spent on each service that was invoiced. The respondent submits that I should give more weight to the receipts and give no weight to the chart. I am unable to locate the chart referred to by the respondent and the receipts are in Chinese. However, according to the translations provided by the applicant for each invoice, Mr. Wu was providing meal preparation, serving and feeding, mobility assistance and supervision, bathroom cleaning, bed making and clothing care, and daily bathing assistance for the number of minutes per day recommended by Ms. Liffshiz in her Form 1.
88The applicant submitted invoices for attendant care from June 16, 2018 to July 17, 2022. It appears the applicant has been paying CN ¥35.00 yuan per hour for the attendant care. The maximum amount the respondent is required to pay for those services is at the hourly rates for the three different levels of care that are set out in the Form 1, which range from $14.00 per hour to $21.11 per hour. The rate of CN ¥35 yuan per hour is far lower than the minimum $14.00 per hour payable for level 2 care and, accordingly, is well within the maximum amount the respondent is required to pay.
89The amounts charged by Mr. Wu range from CN ¥2,940.00 yuan ($547.42 Canadian) for 28 day months, CN ¥3,150.00 yuan ($586.52 Canadian) for 30 day months and CN ¥3,255.00 yuan ($606.07 Canadian) for 31 day months. The total amount claimed is CN ¥159,705 yuan or $29,736.70 Canadian as of writing this decision. I find that the applicant has proven that she has incurred the amount claimed. As the respondent has not denied the attendant care on the basis of entitlement, the amount of CN ¥159,705 yuan for attendant care is payable.
The applicant is not entitled to psychological treatment
90To receive payment for a treatment and assessment plan under s. 15 and s. 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.
91The applicant claims she is entitled to $3,448.89 for psychological services from York Region Psychological Services proposed by Dr. Rockman in a treatment plan dated November 6, 2020. I am unable to determine the goal of the treatment plan or whether the expenses claimed are reasonable as I was unable to locate a copy of the treatment plan.
92The respondent approved previous treatment plans for psychological treatment and the applicant attended 42 sessions. The respondent submits that the applicant has undergone very little improvement despite all of this treatment. The applicant submits that the improvement she has undergone means it is worthwhile to continue with the treatment recommended.
93The respondent relies on Dr. Karp’s opinion and submits that he determined the applicant had reached maximum psychological improvement and further virtual psychotherapy was not reasonable and necessary. Despite the respondent’s submission, I find that the treatment recommended by Dr. Rockman is necessary as a result of the accident.
94Dr. Karp actually determined that, given the applicant’s minimal progress in treatment, further virtual cognitive behavioural psychotherapy was unlikely to result in any significant improvement. He recommended trauma therapy as provided by a Mandarin speaking psychologist. The applicant submits that her psychotherapist fits that recommendation. However, a psychotherapist is not a psychologist. Despite Dr. Karp’s recommendation, however, the test for entitlement is not whether treatment will provide significant improvement, it is whether the treatment is reasonable and necessary as a result of the accident. Based on the August 24, 2020 report of Elaine Hoi Ling Lam, psychotherapist, the applicant’s cognitive function had noticeably improved and she exhibited increased confidence and motivation. Her progress was slow and gradual, but she was still psychologically impaired and still required treatment.
95The applicant relied on the progress reports of Ms. Lam dated August 24, 2020 and November 6, 2020. Ms. Lam reported that the goal of treatment was to address the applicant’s compromised self-worth and negative experiences of herself. I find these are reasonable goals because Ms. Lam stated the applicant’s self-worth was a barrier to her recovery. However, I am unable to determine whether the cost was reasonable as the applicant did not provide the page or tab number for the treatment plan, despite paragraph 11 of the case conference Order requiring her to do so. Dr. Rockman apparently recommended 12 sessions that were one and a half hours long to incorporate relaxation and stress management techniques, but I have no information on the hourly rate she recommended.
96Under s. 15(2)(b) of the Schedule, the respondent is not liable for paying the cost of an assessment that exceeds the maximum hourly rate under the Professional Services Guideline, Superintendent’s Guideline No. 03/14, September 2014 (“Professional Services Guideline”). As the applicant has not established that she sustained a catastrophic impairment, she is only entitled to psychotherapy at a rate no greater than $149.61 per hour as set out in the Professional Services Guideline or any lesser amount that the parties may have negotiated for the psychotherapist. Without evidence of the hourly fee charged, I am unable to order the treatment plan as payable.
The applicant is not entitled to the occupational therapy services in dispute
97The applicant is seeking entitlement to $4,487.29 for occupational therapy services, proposed by Fathima Tuan Kichill in a treatment plan dated November 11, 2020 and $4,200.00 for occupational therapy services from UP Clinic in Shanghai proposed in a treatment plan dated February 5, 2019. The case conference order states that the treatment plan was proposed by UP Clinic in Shanghai. However, the $4,200.00 treatment was actually proposed by Ms. Liffshiz.
98The applicant submits that the respondent failed to address the treatment plans in a timely and proper fashion. Under s. 38(11) of the Schedule, the respondent is required to pay the occupational therapy services incurred starting on the 11th business day after the day the respondent received the treatment plan and ending on the day it provided a proper denial of the treatment plan. However, the applicant did not point me to any evidence of when the treatment plans were submitted and when they were denied or in what manner the denials were improper. It is not for the Tribunal to go through 1800 pages of documents to look for evidence to support a party’s submissions. The onus is on the applicant to do that. Accordingly, the applicant’s submission of entitlement to occupational therapy on the basis of improper denials fails.
99The applicant has provided case law where medical and rehabilitation expenses were awarded by the Tribunal. However, the entitlement to medical expenses in those cases were fact specific and, accordingly, do not assist the applicant. She submits that occupational therapy is necessary because she sustained a TBI and is suffering from a number of TBI related cognitive and psychological issues including a somatic pain disorder diagnosed by numerous assessors. The February 5, 2019 treatment plan prepared by Ms. Liffshiz states that the goal of the plan was to conduct a cognitive assessment of the applicant to determine her cognitive issues as a result of the accident and provide cognitive retraining. However, as stated earlier, there is no evidence the applicant sustained a TBI as a result of the accident. Nor is an occupational therapist able to provide an opinion on the cause of any cognitive impairments. Accordingly, I find that this treatment plan is not necessary. I was not able to locate Ms. Kichill’s treatment plan.
100The applicant submits that there are numerous documents on file that support her need for treatment. However, she has not identified the documents despite being ordered to in paragraph 11 of the case conference Order. I have not been pointed to any evidence that the diagnosis of Somatic pain disorder, PTSD or Major Depressive Disorder require occupational therapy for resolution. Accordingly, the claims for occupational therapy recommended in both treatment plans are dismissed.
The applicant is not entitled to life skills training
101The applicant is seeking entitlement to $4,169.00 for life skills training. The case conference order states that the treatment plan was proposed by UP Clinic in Shanghai. However, the treatment was actually proposed by Ms. Liffshiz and was to be provided by a rehabilitation therapist from UP Clinic.
102The goal of the treatment plan is, under the supervision of an occupational therapist, to assist the applicant with improving her daily functions and increase her participation in daily activities. Ms. Liffshiz refers the reader to her attendant care report dated January 7, 2019. It is not clear whether the treatment plan is to address the applicant’s mild psychological impairments from the accident for which she is already receiving psychological treatment or if it is to address her impairments arising from her unrelated TBIs. Given this uncertainty, I am unable to find that the treatment plan is reasonable and necessary for the applicant’s accident related injuries.
The applicant is not entitled to the physiotherapy services in dispute
103The applicant is claiming entitlement to $4,200.00 for physiotherapy services proposed by UP Clinic in Shanghai in a treatment plan dated February 5, 2019. I could not locate a treatment plan proposed by UP Clinic in Shanghai. The only plan of the same date, services and amount was prepared by Ms. Liffshiz.
104The applicant relies on Fathima Kichill’s October 16, 2020 report in which she recommended physiotherapy. The insurer relies on Dr. Stewart’s opinion that the applicant did not sustain any musculoskeletal injuries in the accident. As I have determined that the applicant has not proven that any musculoskeletal issues she presently has are related the accident, I am unable to find that physiotherapy is reasonable or necessary for the applicant’s accident related injuries. Accordingly, this claim is dismissed.
The applicant is not entitled to assistive devices
105The applicant is seeking entitlement to $2,359.75 for a wheelchair, a walker, a transport chair and an orthopaedic mattress proposed by Ms. Liffshiz in a treatment plan dated February 5, 2019. The goal of the treatment plan is to provide safety during the applicant’s showering, safe mobility in the community and sleep comfort.
106As noted earlier, Dr. Rockman reported that, since the accident, the applicant has suffered two falls that required her to be hospitalized and that now require her to use a four-wheel walker in her home. Given that there is no evidence that the falls or mobility issues are accident related, the claim for mobility devices is dismissed.
107The applicant has complained of pain to her cheek from the glass still embedded in it while sleeping. It is not clear why an entire bed is required to relieve her cheek pain as opposed to sleeping on her other cheek. Accordingly, I am unable to find that an orthopaedic mattress is reasonable or necessary as a result of the applicant’s accident injuries. Accordingly, the claim for this treatment plan is dismissed.
The applicant is not entitled to prescription medication
108The applicant is claiming $518.23 for prescription medication submitted on a claim form (“OCF-6”) dated October 28, 2020. However, no such OCF-6 was before me. The only OCF-6 of that date was for $674.00. I note that the respondent advised the applicant on October 30, 2020 that original receipts were required to be submitted with the OCF-6’s. The applicant was also advised that receipts over a year old will not be accepted. The respondent advised that it required a treatment plan in the future for prescription medication. However, under s. 38(2)(c)(i), there is no requirement for the applicant to submit a treatment plan for prescription medication before the respondent is required to pay the expense. The only requirement for the cost of medication to be paid is that it be reasonable and necessary as a result of the accident impairment and that it be prescribed by a regulated health professional.
109The request for original receipts was made pursuant to s. 33 of the Schedule. The respondent advised that the original receipts were required because the photocopies were not legible, and it required legible copies in case it needed them translated. I find that the original receipts were reasonably required to allow the respondent to have them interpreted. The copies provided are mostly illegible. Further, the receipt of original copies eliminates double dipping or claiming the expenses either as a tax write off or submitting them to a collateral carrier after being reimbursed by the respondent. There is no evidence filed to confirm the original copies were provided. Since there is no evidence that an October 28, 2020 OCF-6 for $518.23 was submitted to the respondent along with the original receipts for expenses listed in the OCF-6, this clam is dismissed.
The applicant is not entitled to transportation expenses
110The applicant is claiming entitlement to $849.75 for transportation expenses, submitted on an OCF-6 dated February 5, 2019. However, no such OCF-6 was before me. I note that Ms. Liffshiz prepared a treatment plan for taxi services to the UP Clinic dated February 5, 2019 in the amount of $849.75. The respondent also submits that a treatment plan for transportation expenses of $849.75 dated February 5, 2019 is in issue. However, although the applicant’s materials include a treatment plan of that date, it is not listed as an issue in the case conference Order. An OCF-6 for transportation expenses in the same amount dated February 5, 2019 is in issue, a copy of which has not been filed. No motions or orders to add the issue of the treatment plan for $849.75 for transportation are before me and, accordingly, the Tribunal will not consider this issue. My focus will remain on the OCF-6.
111The applicant did not make any submissions with respect to the OCF-6 dated February 5, 2019. I find that the February 5, 2019 treatment plan $849.75 must have been for different transportation services than those set out in the OCF-6 in issue given that they are dated the same date. Otherwise, I would have expected the OCF-6 to be dated some time after the February 5, 2019 treatment plan. This is because an insurer is not required to pay expenses incurred before a treatment plan is submitted. However, I have no information on whether such a treatment plan was submitted for the February 5, 2019 OCF-6 expenses before they were incurred.
112In the absence of the OCF-6 or of any evidence that a treatment plan recommending the transportation expenses was submitted before they were incurred, I am unable to find the applicant has proven her entitlement to the expenses. I have no information on what the transportation expenses were for. Nor has the applicant made any submissions or pointed me to any evidence to support why she is entitled to transportation expenses. It is not for the Tribunal to look for evidence to support the applicant’s claims. That onus lies with the applicant, which is made clear in paragraph 11 of the case conference Order. Without that information, I am unable to find that the applicant has satisfied her onus to prove on a balance of probabilities that she is entitled to the expenses claimed for transportation. Accordingly, this claim is dismissed.
The applicant is or is not entitled to the cost of procedural fees
113The applicant is claiming entitlement to procedural fees submitted on OCF-6s of various dates. The receipts attached are written in Chinese, except for some translations. It appears that the claims are actually for the cost of assessments and/or treatment by various physicians and for the cost of medication.
114The respondent is required to pay for all reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan or for preparing a disability certificate under s. 25 of the Schedule. The test for entitlement to the cost of an examination does not require the applicant to prove that she has the type of impairment the physician specializes in as a result of the accident. It is whether there is a possibility that she has that type of impairment caused by the accident. If so, the applicant must show on a balance of probabilities that an assessment is necessary under s. 25 of the Schedule for the review of or preparation of a disability certificate or treatment plan and that the fees charged for that assessment are reasonable.
115Under s. 38(2), the respondent is not required to pay for the cost of an assessment that was incurred before the applicant submitted a treatment plan for the assessment unless the assessment was provided on an emergency basis. I have no evidence that the assessments claimed were done on an emergency basis or that treatment plans were submitted for the assessments.
116Under s. 25(3) of the Schedule, an insurer is not liable to pay for expenses for professional services that exceed the Professional Services Guideline. Under s. 25(5)(a) an insurer is not required to pay more than $2,000.00 plus HST for an assessment.
117The respondent submits that the applicant is entitled to reimbursement from the basic medical insurance (“BMI”) program in China available for employees and Chinese residents. Under s. 47(2), the respondent is not liable for paying for that portion of a medical or rehabilitation expense for which payment is reasonably available under an insurance plan or law. The applicant submits that there is only partial coverage under BMI. What I did not see was any evidence that the expenses were submitted to the BMI program and that a letter of denial was issued by the BMI for the expenses before me. Without such evidence, there is no proof that the BMI coverage is not available for the medical and rehabilitation expenses submitted. Until such time as the expenses are submitted to the BMI program and then denied, the respondent is not required to pay for them.
118According to some of the translations on the invoices and the schedules attached to the OCF-6s, the applicant is also claiming the cost of medication, which is a medical benefit. The test for medical benefits is set out in paragraph 86 above. My reasoning about original invoices being provided in paragraph 104 for medication expenses applies as well. There is no evidence the original invoices for these medications were provided and, accordingly, under s. 33(6) of the Schedule, the expenses are not payable.
The applicant is not entitled to $1,294.44 for the cost of assessments and medication on the OCF-6 dated March 17, 2021
119No OCF-6 for $1,294.44 was before me. The only OCF-6 of this date was for CN ¥2,688.70 yuan. The applicant made no submissions on the procedural fees. I was provided with no explanation of what these fees were for, no evidence that they are related to the applicant’s accident injuries, or that any treatment plan was submitted for these expenses. The respondent submits that they are fees for various medical consultations, hospital, treatment and medication expenses from August 27, 2020 to November 19, 2020.
120The respondent wrote to the applicant on April 8, 2021 with respect to the OCF-6 dated March 17, 2021 for CN ¥2,688.70 yuan and agreed to pay for the cost of assessments/treatments in the amount of $74.44 Canadian. The respondent denied entitlement to the claims for insulin, Chinese herbal medication, artificial intelligence repayment application fees for Zhifubao, an electrocardiogram, the antiplatelet medication Pidogrel, and the antipsychotic medication Quetiapine prescribed for bipolar disorder and schizophrenia. The respondent paid for other medication but asked for an explanation of what the Chinese herbal medicine was and of how the denied medication was related to the accident.
121The applicant has provided no explanation of what the Chinese herbal medicine is or for what purpose it was prescribed. Nor has she provided any explanation of how the other denied medication and expenses has any relationship to the accident. Accordingly, this claim is dismissed.
The applicant is not entitled to $2,570.06 for procedural fees submitted on an OCF-6 dated January 21, 2022
122No OCF-6 for $2,570.06 dated January 21, 2022 was before me. The only OCF-6 of this date was for CN ¥13,468.91 for assessments/treatment and medication services received between January 23 and September 6, 2021, which the respondent calculated was $2,662.35 Canadian. The respondent reimbursed the applicant for $107.77 of the expenses claimed and denied the remainder of the claims on the basis they were for Chinese herbal medicine, which was experimental in nature, or were for services that were no longer required as a result of the applicant’s injuries. The respondent refused to reimburse the applicant for Alprazolam, which is used to treat anxiety disorders and panic disorder, and Paroxetine, which is used to treat depression and panic disorder. It relied on Dr. Karp’s opinion that the applicant had reached maximum medical recovery from a psychological perspective. Despite this denial, I find that the applicant is entitled to the Alprazolam and Paroxetine for the following reasons.
123Dr. Karp only offered an opinion on whether further psychotherapy would assist the applicant, not on whether her medication was still required. As a psychologist, he is not qualified to prescribe medication. Further, the applicant continued to meet the criteria for Major Depressive Disorder, Somatic Symptom Disorder Predominant Pain, and PTSD when he assessed the applicant and he has recommended a medication consultation. Therefore, the respondent had no reason to believe the applicant no longer required medication to treat her accident related psychological injuries. In fact, Dr. Voruganti thought the applicant likely had some features of PTSD. Accordingly, without any expert’s opinion on what role the medication had in the reduction in the severity of her symptoms or what would occur if the medication were stopped, I find that the applicant was still entitled to reimbursement for the medication. Accordingly, I find that the respondent is liable for paying for the Alprazolam and Paroxetine of CN ¥612.32 yuan.
124The applicant was advised by the respondent on October 30, 2020 that it required treatment plans for any further treatments. The applicant’s legal representatives acknowledged on October 29, 2020 that treatment plans would be submitted going forward. The charges to see physicians were not submitted on a treatment plan. Under s. 38(2), the respondent is not required to pay for these expenses as they were incurred before being submitted on a treatment plan.
125The applicant has not identified what the Chinese herbal medicine was or what it was for. Without that information, I am unable to address the respondent’s allegation that it was experimental or whether it was herbal medicine well known for treatment of certain conditions. Nor am I able to determine whether it was for treatment of the applicant’s injuries or for unrelated complaints. Accordingly, other than CN ¥612.32 yuan for the Alprazolam and Paroxetine, the remainder of this claim is dismissed.
The applicant is not entitled to $1,203.09 for procedural fees submitted on an OCF-6 dated March 23, 2022
126The applicant is seeking reimbursement of CN ¥6,095.02 or $1,203.09 Canadian for prescription medication, psychotherapy, laser treatment, and for ophthalmology assessments or treatments incurred between February 19, 2019 and August 17, 2019. The respondent denied the expenses on the basis they were submitted more than three years after they were incurred, the applicant failed to submit treatment plans for the expenses, and the psychological treatment and/ or assessments were a duplication of the services provided by Dr. Rockman and her staff. I agree that they are not payable.
127There is no timeline per se in the Schedule for when an OCF-6 is to be submitted. However, there is no evidence that the original invoices were submitted or that they were submitted to the BMI program. Nor is there evidence that a treatment plan was submitted for the assessments and the treatment before they were incurred as required by s. 38(2) of the Schedule.
128The applicant has provided no cogent reason why she failed to submit the OCF-6 within a reasonable period of time when she was able to submit the OCF-6 forms for expenses she incurred from August and September 2018 within a reasonable period of time. I accept the respondent was prejudiced by the late submission of the psychotherapy expenses as it could not assess them after the fact or determine whether Dr. Rockman or the Chinese psychologist or psychotherapist was in a better position to address the applicant’s accident injuries.
129The applicant also claimed the cost of Paroxetine Hydrochloric medication that was lumped with Olanzapine Tablets. No breakdown of the amount for each medication was provided. Olanzapine is an antipsychotic medication that is used to treat schizophrenia and bipolar disorder. There was no evidence that the accident caused these conditions. Since there is no breakdown of how much of the cost was for the Paroxetine, I am unable to determine how much is payable. Accordingly, this claim is dismissed.
The applicant is not entitled to $1,460.39 for procedural fees submitted on a an OCF-6 dated April 22, 2022
130The applicant is claiming entitlement to CN ¥7,473.22 for seeing a physician and for Alprazolam tablets, Quetiapine Tablets, and Paroxetine Hydrochloric, which the respondent calculated as $1,460.39 Canadian. As with the March 23, 2022 OCF-6, there was no breakdown of the cost of each medication. Quetiapine is an antipsychotic. Given Dr. Voruganti’s diagnosis, I find that the applicant has not established that she requires an antipsychotic for her accident related injuries. Nor was a treatment plan for the physician’s assessments/treatment submitted before these expenses were incurred. Accordingly, this claim is dismissed.
The applicant is not entitled to $1.00 for a catastrophic impairment determination, submitted on an OCF-6 dated April 14, 2021
131The applicant did not provide a copy of the OCF-6 dated April 14, 2021. Nor did she make any submissions on the issue. Accordingly, this claim is dismissed.
Interest
132Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the attendant care benefits and cost of medication she is entitled to in accordance with the Schedule.
ORDER
133For all the above reasons, I order:
i. The applicant is entitled to the attendant care claimed of CN ¥159,705 yuan incurred. The applicant has not proven that she incurred any other attendant care expenses.
ii. The applicant is entitled to medication expenses of CN ¥612.32 yuan from the OCF-6 expense claim form dated January 21, 2022.
iii. The applicant is entitled to interest in accordance with the Schedule on the attendant care and medication.
iv. The remainder of the applicant’s claims are dismissed.
Released: November 22, 2023
__________________________
Deborah Neilson
Adjudicator