Citation: Fernandez v. Commonwell Mutual Insurance, 2023 ONLAT 21-000413/AABS

Licence Appeal Tribunal File Number: 21-000413/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:

Ofelia Fernandez

Applicant

and

Commonwell Mutual Insurance

Respondent

DECISION

ADJUDICATOR:

Sandra Driesel

APPEARANCES:

For the Applicant:

Ofelia Fernandez, Self-Represented Applicant

For the Respondent:

Cecil Jaipaul, Claims Representative Glenn Davis, Claims Specialist Cynthia Verconich, Counsel Megan Badenhorst, Counsel

Interpreter:

Mary Ann San Juan (in the Tagalog language)

Court Reporter:

Jason Nebelung

HEARD: by Videoconference:

June 19 – June 21 2023

OVERVIEW

1Ofelia Fernandez, the applicant, was involved in an automobile accident on January 16, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by the respondent, Commonwell Mutual Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

PRELIMINARY ISSUES:

Adjournment of the videoconference hearing is denied:

2I denied the applicant's oral request for an adjournment and proceeded with the hearing as scheduled having considered the submissions from the parties and taking into account the following:

i. There has been a significant delay in getting this matter to hearing.

i. The application was filed on January 13, 2021, by N. Tischler of Campisi LLP Personal Injury Lawyers, who subsequently advised the Tribunal on June 10, 2021, that he and his firm no longer represented the applicant.

ii. On June 16, 2021, the Tribunal received a Declaration of Representation that M. Slomyanski of Slomyanski Law was representing the applicant and an adjournment of a case conference scheduled for June 22, 2021, was granted for the counsel to obtain files from the previous counsel.

iii. On June 12, 2023, five business days before the start of this hearing, the applicant emailed the Tribunal requesting a postponement of the hearing because she intended to fire her current counsel. Later that day, M. Slomyanski advised the Tribunal firm is no longer representing the applicant.

ii. There have been approximately four requests for adjournments of case conferences already granted for this file. There was also a previous request by the applicant to adjourn a ten-day hearing to commence on May 8, 2023. In an order of April 27, 2023, granting the adjournment Vice Chair Lake was clear in specifying that this hearing, scheduled to start on June 19, 2023, would be peremptory on the applicant to proceed.

iii. The applicant's counsel was new to file. On June 15, 2023, Ms. J. Peguero of Campisi LLP Personal Injury Lawyers, submitted a Declaration of Representation to the Tribunal and on the same day she submitted the request for the adjournment of this hearing. A stated reason for the adjournment request was that Ms. Peguero was being retained and had not yet received the file from previous counsel. Given the late filing of this request, the Tribunal did not respond to the parties regarding the adjournment request, nor did the Tribunal advise the parties that the hearing would not proceed as scheduled.

iv. The respondent, via email agreed to consent to this adjournment only on the following terms:

i. The adjournment is for the hearing date only. Because all timelines relating to procedural issues have passed, the respondent would not consent to any extension of submission deadlines already established and order by the Tribunal.

ii. The new hearing must be scheduled after August 20, 2023.

3On the start of the first day of hearing, neither the applicant nor Ms. Peguero appeared. Instead, Mr. E. Winkworth, a colleague from the same firm as Ms. Peguero, appeared. He explained that he was not acting on behalf of the applicant but was present to hear a decision regarding the request for adjournment. He said Ms. Peguero had another case she expected to settle but it hadn't so she was unable to attend this hearing. He noted that she may be committed to this other matter for more days.

4I requested that both the Tribunal and Mr. Winkworth contact both the applicant and the applicant's counsel of record, Ms. Peguero, to advise them that the hearing was started and that they should be present. Eventually both appeared. Ms. Peguero admitted she expected the Tribunal to adjourn the matter under the circumstances, namely that she had not received the applicant's file from previous counsel, so she was unable to prepare.

5Ms. Peguero admitted to having other commitments and would prefer an adjournment until late fall or November 2023. Ms. Peguero did not offer any explanation as to why she accepted the applicant as a new client when she was not able to attend the scheduled event or if she considered assisting the applicant in obtaining the services of other legal representation that would be available to act on her behalf. At no time did she claim she was unaware of this hearing when she accepted the applicant as a client. She did argue that by ordering the hearing to proceed while counsel is unprepared is akin to the Tribunal denying the applicant right to counsel, then she noted she was expected to be in a different court and these proceedings were causing a disruption in another matter.

6Respondent's counsel noted that on June 16, 2023, she sent the new counsel both the applicant's and the respondent's hearing briefs submitted for the hearing. Applicant's counsel noted she was unable to withdraw the issues in dispute as the insurer's denials were over two years ago thus exhausting the limitations period for disputing the denial. The respondent stated they were not interested in a tolling agreement to re-visit these issues.

7The respondent declared it was ready to proceed and that its six witnesses were confirmed to appear as scheduled during the ten days set aside for this hearing. It notes that this is the second time they have scheduled witnesses and prepared for this hearing.

8The parties were encouraged to come up with a plan to proceed with this hearing within the ten days set aside or come up with some alternative approach to have this matter heard as soon as possible. The parties were asked to consider this with the understanding that the evidence to be relied on at the hearing was already submitted to the Tribunal, and whether they could re-determine the witnesses they intended to call, relying on reports to get the evidence in within the scheduled days allotted. They were unable to agree on any plan to move the matters forward efficiently and as noted above, both parties had scheduling constraints to consider. Granting an indefinite adjournment would unduly delay proceedings that have already been subject to significant delay.

9In any event, as stated in Re Flamboro Downs Holdings, Ltd. v Teamsters Local 879, (1979), 24 O R (2d) 400, 1979 CanLII 1669 (Div. Ct.), a party does not have an automatic right to an adjournment. Further, the Court of Appeal for Ontario in Parsons v. Komer, 2017 ONCA 407 at para. 58; and the Federal Court in Asservatham v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 15639 (FC) at paras. 16-20 each held that there is no principle that requires an administrative tribunal to arrange its hearings to enable counsel to appear for other clients in "higher courts".

10Lastly, the Court of Appeal for Ontario in Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484 at para. 37, sets out a non-exhaustive list of factors to consider when granting or refusing an adjournment. The key factors I identified here that weigh toward refusing an adjournment are the number of previous adjournments that have been granted, the fact that this hearing was marked by Vice Chair Lake as peremptory to proceed, and the desirability to have this matter determined on its merits. The key factors I identified that weigh toward granting the adjournment are the consequences of the hearing are serious, the prejudice to the applicant if the adjournment were not granted and the applicant's desire to be represented by counsel.

11Having weighed these factors that I identified as key, I declined to grant an adjournment. In my view, the age of the file, the desirability to have the matter heard on its merits in a just, cost-effective and expeditious manner, the five previous adjournments, the lack of preparation by applicant's current counsel for this hearing—combined with the lack of suitable alternative measures in case Ms. Peguero could not act for the applicant—weighed heavily against granting an adjournment. While the applicant has the right to be represented by counsel, this right is not absolute, nor does it include the right to insist on an adjournment due to the unavailability of counsel where such adjournment would unreasonably delay the proceedings.

12Based on the above, with all parties present, I denied the adjournment request of the applicant and proceeded with the hearing.

The hearing proceeded with the applicant as self-represented.

13When I denied the adjournment request, Ms. Peguero stated that she was not prepared to proceed because she had only agreed to represent the applicant in the week prior. Ms. Peguero stated she would withdraw her services if the hearing was to proceed as scheduled. I did not find this to be a compelling reason to reconsider the decision to proceed with this matter as scheduled.

Parties have the right to counsel, but that is not absolute:

14Ms, Peguero argued that a decision to proceed with the hearing while knowing the applicant's counsel might withdraw her services was denying the applicant her right to counsel. While parties have a right to counsel, this right is not absolute, nor does it include the right to insist on an adjournment due to the unavailability of counsel where such adjournment would unreasonably delay the proceedings.

15Subsection 7(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA") permits a tribunal to proceed in the absence of a party provided that it has provided notice of the hearing. There was no issue raised by the applicant that notice was not received.

Counsel for the applicant failed to appear:

16On day two of the hearing, counsel for the applicant Ms. Peguero did not appear.

17The applicant and the Tribunal administration were asked to contact Ms. Peguero or someone at her law firm who could confirm the counsel's status on this file. The applicant claimed she was told Ms. Peguero was in court and could not be reached. The Tribunal was unable to contact counsel. Counsel for the respondent noted she was unsuccessful in her attempts to contact Ms. Peguero.

18As there has been a breakdown in the solicitor-client relationship, the applicant's counsel is removed as counsel of record pursuant to s. 25.0.1 of the Statutory Powers Procedure Act, RSO 1990, c S.22.

19The applicant was advised that this circumstance did not change my decision to refuse to adjourn the hearing, and that the hearing would continue with the applicant being a self-represented party.

Order to proceed to hearing:

20I explained to the applicant that a hearing brief had been filed with evidentiary documents to support her position on entitlement to benefits in dispute. It was explained to her that any documentary evidence referenced during the hearing would be displayed to her so that she could review it and/or follow along during any discussion. I explained to her that I would assist her through the hearing process.

21I confirmed the Tribunal was providing the applicant with an interpreter in the Tagalog language, and that the application on file did not indicate the applicant had any capacity issues.

22On June 20, 2023, on consent of the parties, I ordered the hearing to proceed with the applicant proceeding as a self-represented party.

ISSUES

23The issues in dispute are:

1. Has the applicant sustained a catastrophic ("CAT") impairment as defined by the Schedule?

2. Is the applicant entitled to an income replacement benefit ("IRB") in the amount of $378.98 per week from April 15, 2021, to the date of the hearing?

3. Is the applicant entitled to a medical benefit of $1,384.70 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 ("plan") dated January 22, 2020?

4. Is the applicant entitled to a medical benefit of $3,042.56 for psychological services, proposed by Dr. Lena Solomon in a treatment plan/OCF-18 ("plan") dated May 10, 2020?

5. Is the applicant entitled to a medical benefit of $3042.56 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 ("plan") dated June 3, 2020?

6. Is the applicant entitled to a medical benefit of $5,152.36 for occupational therapy services, proposed by Empowering U in a treatment plan/OCF-18 ("plan") dated July 30, 2020?

7. Is the applicant entitled to a medical benefit of $1,985.00 for an MRI/brain SPECT assessment, proposed by MRI Marketing in an examination or report dated October 10, 2020?

8. Is the applicant entitled to $1,143.00 for expenses of visitor, submitted on a claim form (OCF-6) dated October 9, 2019?

9. Is the applicant entitled to $31.27 for prescription and transportation expenses, submitted on a claim form (OCF-6) dated October 14, 2020?

10. Is the applicant entitled to $159.02 for prescription and transportation expenses, submitted on a claim form (OCF-6) dated June 2, 2020?

11. Is the applicant entitled to attendant care benefits ("ACB") in the amount of $3,000.00 per month from June 29, 2020, to hearing?

12. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

24I find the following:

1. The applicant has not sustained a CAT impairment as a result of the accident.

2. The applicant is not entitled to the IRB in dispute.

3. The applicant is not entitled to the attendant care benefit in dispute.

4. The applicant is not entitled to the treatment plans and cost of assessments in dispute.

5. The applicant is not entitled to the expenses in dispute.

6. The applicant is not entitled to an award under s.10 of Regulation 664.

7. As no benefits or award are payable, the applicant is not entitled to interest.

ANALYSIS

The applicant has not sustained a CAT impairment as defined by the Schedule.

25The applicant was originally seeking a CAT determination under criteria 7 and 8 as a result of her accident-related injuries.

26The test for CAT impairment is a legal definition and not a medical test although the legal test involves consideration of medical evidence. The applicant has the burden of proving on a balance of probabilities that she is catastrophically impaired as a result of the MVA.

27Based on the evidence provided and the testimony of the applicant, she has failed to persuade the Tribunal on a balance of probabilities that she sustained a CAT impairment.

The applicant is not CAT impaired under Criterion 7

28The applicant has failed to submit evidence regarding a Criterion 7 designation and the focus of her argument is that she suffers marked impairments in mental and behavioural impairments that meet the test of CAT under Criterion 8. I therefore do not find the applicant to be CAT impaired based on Criterion 7.

The applicant is not CAT impaired under Criterion 8

29I find that the applicant did not sustain a CAT impairment under Criterion 8 as a result of the January 16, 2019, accident.

30Impairments under Criterion 8 are assessed under chapter 14 of the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, (the "Guides"). Mental and behavioural impairments are rated according to how seriously the affect a person's useful functioning. The Guides sets out the four domains or spheres of functioning and the levels of impairments as outlined in the chart below:

Area or Aspect of Functioning

Class 1: NO Impairment

Class 2: MILD Impairment

Class 3: MODERATE Impairment

Class 4: MARKED Impairment

Class 5: EXTREME Impairment

Activities of Daily Living

No impairment is noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some, but not all useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

Social Functioning

Concentration, Persistence and Pace

Adaption (In a work-like setting)

31Given that the accident occurred on January 16, 2019, the applicant must have at least a marked (Class 4) impairment in at least three of the four spheres of functioning. The parties agree that the applicant does not suffer from a marked or extreme impairment in the domain of Social Functioning. The applicant relies on the report dated April 1, 2021 of Dr. H. Becker and Dr. L. Becker, stating that the applicant sustained a Class 4 marked impairment in the three remaining spheres of functioning.

32The respondent relies on the report of Dr. A. Oshidari, dated February 28, 2022, that concludes he found no valid or reliable evidence that the applicant has sustained a marked or extreme impairment in any of the four spheres of functioning.

33I did not find the applicant's testimony helpful in determining whether she has a marked impairment rating under the four spheres of functioning because most of her testimony was focused on her physical pains and her alleged limitations from a physical perspective.

The applicant does not have a marked impairment in the area of Activities of Daily Living ("ADL")

34I find the applicant has failed to prove that she suffers from a Class 4 impairment in the functioning related to ADL.

35The Guides specify that activities of daily living include self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitation in these activities should be related to the person's mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual's overall situation. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

36I do not find that the determination by Drs. Becker supports a finding that the applicant has a marked impairment in this sphere of functioning. These doctors rely on the review of medical documentation as they have not met the applicant nor conducted any independent testing. This report relies on the report of Dr. L. Davidson, psychologist and the evaluation report of Ms. M. Paniccia, occupational therapist. Both their reports state that the applicant is able to manage her activities of daily living such as personal care, light housekeeping, and cooking 'with motivation'. Collateral interviews included with this evidence state that 'sometimes' she requires assistance with meal preparation and laundry. I find that the accounts of the applicant's capabilities are more in keeping with a level of impairment that is "compatible with some, but not all useful functioning," which according to the Guides is a Class 3 impairment.

37The applicant reports her sleep is impaired, principally due to pain rather than due to psychological factors. The applicant reports that psychologically, she lacks motivation and energy, she is depressed, and she has lost pleasure in participating in daily activities. Her CAT assessors fail to provide evidence that reconciles her psychological impairments to the accident or to other reported circumstances that may have attributed to her psychological well-being such as the COVID-19 pandemic which the applicant mentioned had impacted her in some ways; the loss of her job and residence; and her husband relocating to Canada resulting in their sharing a residence for the first time for any significant period of time. There is a lack of any analysis or medical evidence to connect the applicant's alleged impairments to the accident.

38Regardless of the changes in the applicant's ADL functioning post-accident, I do not find the changes are consistent with a marked impairment.

The applicant does not have a marked impairment on the remaining spheres of functioning:

39Similar to the evidence presented to support a CAT determination in ADL, I found the applicant's CAT assessment report is lacking in any testing or analysis by the authors to validate any opinion or to reconcile their findings to any medical reports in evidence.

Concentration, Persistence and Pace ("CPP")

40I find the applicant has failed to prove that she suffers from a Class 4 impairment in the functioning related to CPP.

41The Guides define this sphere as having the ability to sustain focused attention long enough for the timely completion of tasks commonly found in work settings. Deficiencies in concentration, persistence and pace are best noted from previous work attempts or from observations in work-like settings. The Guides specify that psychological tests are useful in assessing intelligence, memory, and concentration. Frequency of errors, the time it takes to complete a task and the extent to which assistance is required to complete a task are also considered.

42Dr. Becker opined that the applicant has a Class 4 impairment, relying on the OT assessor's opinion that the applicant's significant depressive symptomology, chronic pain and concomitant low functional tolerance have resulted in diminished concentration, pace and persistence. This is the extent of analysis under this sphere, which I find vague and lacking in detail or analysis. While the reports state the applicant completed certain testing for CPP and she took a significant amount of time to do so because she was stressed or overwhelmed, she did actually complete the problem-solving tasks correctly. I find these results to show the applicant is capable of some functioning, which is not an indication of a marked impairment.

Adaptation:

43The Guides define impairment in adaptation as the repeated failure to adapt to stressful circumstances, in the face of which "the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate or having difficulty maintaining activities of daily living, continuing social relationships, and completing tasks." By definition, impairment in adaptation affects the ability to function across all activity areas. Regarding activities of daily living, their quality is judged by their independence, appropriateness, effectiveness, and sustainability.

44As mentioned before, Drs. Beckers' CAT report of April 1, 2021 on behalf of the applicant relies on opinions by Dr. Davidson and Ms. Paniccia. The applicant reported to OT assessor Ms. Paniccia that prior to the accident she was able to manage all housekeeping tasks and was in in physical and social activities on a regular basis. She was also employed as a live-in personal support worker ('PSW") to a senior couple. The applicant reported that after the accident she was unable to return to her pre-accident position. However, the applicant's own testimony indicated that she was unable to return to work as the job was not available for her to return to after the accident. Because the applicant was a live-in PSW at the time of the accident, the applicant was forced to look for new living accommodations for not only herself, but for her husband who, up until after the accident, had lived apart from the applicant in another country. She was required to adapt to a new living arrangement with her husband restricted to a single bedroom and a scheduled sharing of the kitchen area because of the COVID-19 pandemic. Also, as noted by the applicant, she felt isolated because of the restrictions imposed by the COVID-19 pandemic. While the effect of these changes in the applicant's work and living environments were not explored in any reports, the applicant's husband and a friend reported to an assessor that following the accident the applicant had changed in her behaviour, she was able to perform some household duties, she liked to cook sometimes, and she could take care of her personal hygiene tasks.

The applicant is not CAT impaired:

45Although I acknowledge that the accident may have had a negative impact on the applicant's life, she has not met her onus in proving on a balance of probabilities that she has three marked impairments under Criterion 8.

The applicant is not entitled to an Income Replacement Benefit ("IRB") post-104 weeks from the date of the accident:

46I find that the applicant has not met her onus to prove her entitlement to a post-104 IRB for the period from April 15, 2021, to date.

47To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that as a result of the accident, she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

48The applicant relies on the evidence of Ms. M. Paniccia, OT who, following her assessment of the applicant, concluded that the applicant is unable to sufficiently cope with simple, light intensity activities of daily living and that the applicant is unable to return to her pre-accident employment, even with work modifications.

49The applicant submits that because of the mental and behaviour impairment she has developed as a result of the accident, she has not been motivated to return to the job that she loves, which is the care of persons as a PSW. She fears her alleged psychological impairments would prevent her from being responsible or reliable for the care of persons in need. She has not produced any medical report, based on anything other than self-reporting, to confirm that any physical or cognitive limitations prevent her from the ability to return to work. The applicant states that since the accident she has made one attempt to work, as a cleaner, but it was too physically demanding for her. She has not sought employment in any other type of work.

50The respondent relies on the report of Dr. Oshidari, physiatrist, who assessed the applicant and concluded the applicant can return to work and does not meet the post-104 test. The respondent also relies on several other assessment reports such as those completed by Dr. P. Ranalli, neurologist, Dr. J. Rai, clinical psychologist & neuropsychologist, and Ms. S. Cauchard, vocational rehabilitation specialist, who all concluded that the applicant could return to work and does not meet the post-104-week test.

51The respondent argues that after numerous requests, the applicant has failed to produce requested records (such as tax records) required to make an assessment of the applicant's entitlement. According to submissions included in both the applicant and respondent hearing brief, the applicant's tax records have only been provided up to the end of 2018. Additionally, the respondent argues that the applicant has not sought employment in any field in which she is qualified, since she lost her previous employment as a PSW.

Other education, training or experience for which the applicant:

52The applicant has not addressed whether or not she has considered other employment or self-employment in other areas for which she is reasonably suited by education, training or experience. The applicant testified that she completed a high-school level education in the Philippines and that her employment history and vocational training is as follows:

i. She worked as a cashier in her family business in the Philippines.

ii. She completed a two-year pre-dental program in the Philippines.

iii. She worked in Saudi Arabia for seven years as a dental assistant where a requirement of the job was to speak English.

iv. She attended a four-year dental school program in Saudi Arabia (and she notes she intends to obtain the final two credits for her diploma here in Canada).

v. She lived in England, where she completed a social care program, in English, that included her internship as a care home worker, for approximately five years.

vi. She arrived in Canada in 2015 and she completed a personal support worker program.

vii. She was employed at the time of the accident as a live-in caregiver to an elderly, English speaking couple, until January 31, 2019, when she left because unfortunately one of her clients passed away and the other left the home.

viii. The applicant claims she attempted to return to work as an office cleaner but left because it was too difficult physically. I was not provided with any details of this employment.

53The applicant showed the parties at the hearing her several diplomas and certificates for her impressive achievements.

54The applicant also states that one of her limitations in finding new employment is that English is not her first language and that since the accident, she is unable to converse in or read the English language as she had done before the accident. She is unable to explain why this has come to be, she has not presented any medical evidence to suggest how any injury can result in this type of reaction.

55The applicant has failed to meet her onus that she meets the post 104-week IRB test for the entitlement to this benefit. She has not provided medical evidence to support her inability to complete any tasks related to employment for which she might be reasonably suited to with the education, training or experience she has.

The applicant is not entitled to an Attendant Care Benefit ("ACB") for the period in dispute.

56I find that the applicant has not established entitlement to any ACB for the period in dispute, from June 29, 2020, to date.

57Section 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 ACBs 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").

58Section 3(7)(e) states that to meet the definition of incurred the following three criteria must be satisfied:

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

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

iii. The person who provided the service did so,

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

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

59The applicant relies on two Form 1s, that were submitted several months apart as follows:

i. Form 1 dated March 5, 2019, indicates the applicant requires an ACB of $3,146.03 per month.

ii. Form 1 dated June 25, 2019, indicates the applicant requires an ACB of $860.02 per month.

60The respondent relies on an assessment of the applicant conducted February 15, 2021, by Mr. R. Campos, OT who concluded that the applicant did not require attendant care. In addition, the respondent states it has not been provided any evidence that the applicant has been provided with any attendant care services since June 2020. The respondent submits that the applicant has failed to prove she required any attendant care.

61Following the insurer's IE by Mr. Campos, where he decided the applicant did not require any attendant care, the applicant failed to produce any evidence to refute Mr. Campos' findings. Also even if I had found ACB were reasonable and necessary, pursuant to s. 3(7)(e)(i) of the Schedule applicant failed to provide any evidence of care being provided or billed or that there was a loss of income from anyone providing care for the period in dispute. On the evidence before the Tribunal, I do not find the applicant is not entitled to an ACB.

The Treatment Plans ("OCF-18") and Expense Claims ("OCF-6") in dispute are not payable because non-CAT benefits are exhausted.

62I find that the applicant is not entitled to payment of the treatment plans and expenses in dispute.

63A finding of CAT impairment would have entitled the applicant to seek accident benefits in excess of the $65,000.00 limit imposed by the non-CAT designation. As I have found the applicant is not CAT impaired, her access to benefits is capped at the non-CAT limit.

64Because the respondent has confirmed the applicant has exhausted her non-CAT limits and there are no available funds to cover the OCF-18 or OCF-6 forms in dispute, no analysis of these disputed items is required to determine her entitlement to payment by the insurer.

The respondent is not liable to pay an award under s. 10 of O. Reg. 664:

65I find the applicant has not provided evidence to meet her burden of proof that the respondent unreasonably withheld or delayed payment of benefits.

66The applicant seeks an award under s.10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined an award is justified where the delay or withholding of benefits by the insurer is unreasonable, meaning its behaviour, is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The onus is on the applicant to prove, on a balance of probabilities, the respondent's conduct meets this criterion.

67As the applicant has not made submissions on this issue, I find the applicant is not entitled to an award.

The applicant is not entitled to interest on any overdue payment of benefits.

68As no benefits are payable, interest is not payable on any overdue payment of benefits.

ORDER

69For all of the above-noted reasons, I find:

i. The applicant has not sustained a catastrophic impairment.

ii. The applicant is not entitled to an IRB.

iii. The applicant is not entitled to an ACB.

iv. The OCF-18s and OCF-6s in dispute are not payable.

v. The applicant is not entitled to an award under s. 10 of Regulation 664.

vi. The applicant is not entitled to interest.

70The application is dismissed.