Citation: Achaia-Shiwram v. Intact Insurance Company, 2023 ONLAT 20-004699/AABS

Licence Appeal Tribunal File Number: 20-004699/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:

Noreen Achaia-Shiwram

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Noreen Achaia-Shiwram, Applicant

Mohamed Elbassiouni, Counsel

For the Respondent:

Kyle Bedford, Adjuster

Mahroze Khan, Counsel

Angel Ju, Co-Counsel

Court Reporter:

Bruce Porter, Victory Verbatim

HEARD: by Videoconference:

November 14, 15, 16, 17, 18 and 21, 2022

OVERVIEW

1Noreen Achaia-Shiwram (“applicant”) was involved in an automobile accident on October 16, 2015, and sought benefits from Intact Insurance Company (“respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). On August 20, 2021, the applicant applied to the respondent for a determination that her accident-related impairments met the definition of a catastrophic (“CAT”) impairment under the Schedule. The respondent conducted insurer examinations (“IEs”) and determined that the applicant’s accident-related impairments did not meet the definition of CAT. The respondent also denied the applicant’s entitlement to an income replacement benefit (“IRB”).

2The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute. The matter proceeded to a case conference, but the parties were unable to resolve the dispute. The matter proceeded to a six-day videoconference hearing. On behalf of the applicant, I heard the testimony of the applicant, the applicant’s husband, Dr. Erry, family doctor, Dr. Town, treating chiropractor, Julian Amchivslavsky, occupational therapist (“OT”) and Dr. Patel, psychiatrist. On behalf of the respondent, I heard the testimony of IE assessor Dr. Longhorn Geddes, psychologist.

PRELIMINARY ISSUE

3The respondent raised the following preliminary issue:

i) Is the applicant precluded from proceeding with her claim disputing her entitlement to an IRB for failing to dispute the respondent’s denial of the benefit within the two-year limitation period pursuant to s. 56 of the Schedule?

ISSUES IN DISPUTE

4I have been asked to decide the following issues:

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

ii) Is the applicant entitled to an IRB in the amount of $45.00 per week from April 4, 2018 to date and ongoing?

iii) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

5After considering the parties’ submissions, the testimony of all witnesses and reviewing all of the evidence I find:

i) The applicant did not sustain a CAT impairment as a result of the accident. The applicant is not entitled to an IRB, interest or an award.

ii) In light of my decision, it is unnecessary to address the preliminary issue raised by the respondent.

PROCEDURAL ISSUES

Motion re: Summons to Witness

6The applicant brought a motion seeking an order compelling the testimony of Kyle Bedford, adjuster, and Joan Saunders, CAT OT IE assessor. She submits that the testimony of the adjuster is required because an award is in dispute. Further, Ms. Saunders is a key witness as she conducted the OT CAT assessment. Therefore, she has a right to cross-examine the assessor on her report. In addition, she maintains that she requested the summons from the Tribunal on November 9, 2022, and the only reason these witnesses have not been served is because the signed summons have not been received back from the Tribunal. The applicant submits that to deny her request would prevent her access to a fair hearing.

7The respondent opposed the applicant’s motion on the basis that, to date, the applicant has not properly served either witness with a summons to witness pursuant to Rule 8.3 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure (Effective February 7, 2019 (“Rules”). Consequently, these witnesses have not received sufficient notice, nor has the respondent had the ability to prepare these witnesses to testify. It also submits that it notified the applicant on October 13, 2022, of its intention to call only Dr. Longhorn-Geddes as a witness. Despite receiving over one month’s notice that the respondent did not intend to call these witnesses, the applicant failed to request summons from the Tribunal sooner. It argues that allowing the applicant’s request this late in the process would be procedurally unfair to the respondent. In addition, it asserts that she served her witness list on the respondent on October 17, 2022, which contained numerous witnesses which it had prepared for. However, at the outset of the hearing the applicant confirmed she only intended to call one quarter of the witnesses on that list. Finally, neither Mr. Bedford nor Ms. Saunders were available to testify.

8I agreed with the respondent and issued an oral ruling dismissing the applicant’s motion. I find the applicant had over one-month’s notice that the respondent did not intend to call these witnesses. I agree that she should not have waited until the eve of the hearing to make the last-minute request for the summons from the Tribunal. In addition, she did not provide any proof that these witnesses were served with the summons as required by Rule 8.3. I agree that these witnesses were not provided with sufficient notice. In my view, the applicant has been provided with more than a fair opportunity to present her case as ample notice of the hearing dates were provided to both parties. The applicant’s delay in not requesting the summons sooner is not the Tribunal’s error.

9A few days after the hearing commenced the applicant advised that Ms. Saunders had been properly served with the summons and that a clerk from counsel for the applicant’s law office had confirmed that she was available to testify. At that time, I heard further submissions and indicated that if the witness had been properly served and confirmed her availability then I would allow the testimony of this witness. However, I did caution the applicant that if these facts were not accurate then my original decision stands. The respondent later confirmed that, to date, Ms. Saunders had still not been properly served with the summons and her office confirmed that she was not available. An email from Ms. Saunders’ office confirmed this. This will confirm that my initial ruling stands.

Motion Seeking to Exclude the IE Report of Dr. Longhorn-Geddes

10During Dr. Longhorn-Geddes’ cross-examination she was asked what her hourly rate was and how much she charged for completing her s. 44 assessment. The respondent opposed these questions arguing that the information is not relevant. The applicant submits that this information is relevant as the rates charged speaks to an assessor’s neutrality. I agree with the applicant, as s. 25(5)(a) of the Schedule provides a $2,000.00 cap on assessments and that cap applies to assessments conducted by the respondent. The doctor confirmed that her hourly rate was $225.00 per hour and an invoice indicated she charged $3,375.00 for the assessment.

11The applicant requested that Dr. Longhorn-Geddes’ report should be excluded on the basis that the amount charged for the assessment was in non-compliance with s. 25(5)(a) of the Schedule. She submits the purpose of s. 25(5)(a) is to ensure that both parties are on an equal playing field and the fact that Dr. Longhorn-Geddes’ rate exceeded this amount places the applicant at a disadvantage. The respondent submitted an OCF-21 (“invoice”) in the amount of $2,000.00 which confirmed that it only paid Dr. Longhorn-Geddes the maximum amount provided for in the Schedule. Therefore, I declined the applicant’s request to exclude the doctor’s report.

BACKGROUND

12On October 16, 2015, the applicant was involved in an accident when her vehicle was rear ended. The applicant submits she hit her head on the headrest and sustained impairments to her neck, back and left shoulder. She was taken by ambulance to hospital, was prescribed pain medication and was discharged the same day. She followed up with her family doctor who referred her for physiotherapy. The applicant submits that she sustained a concussion as a result of the accident which resulted in chronic headaches, and problems with vision, memory, and cognition. She also sustained an injury to her right shoulder. Further, her pre-existing neck and low back pain was exacerbated by the accident which resulted in chronic pain and has developed into her current psychological impairment.

Did the applicant sustain a CAT impairment as a result of the accident?

13I do not find that the applicant sustained a CAT impairment as a result of the accident.

14On August 20, 2021, the applicant applied to the respondent for a determination that her accident-related impairments met the definition of CAT impairment under the Schedule. The current dispute involves whether she sustained a CAT impairment pursuant to s.3.1(1) (8) of the Schedule (known as Criterion 8) which is assessed in accordance with Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”).

15To qualify as CAT under Criterion 8, an individual must sustain a Class 4 (marked) impairment as a result of the accident in any one of the four spheres of functioning outlined in Chapter 14 of the Guides, due to a mental or behavioural disorder.

16The Guides set out that mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The below chart sets out the four spheres of functioning and the levels of impairment:

Area or Aspect of Functioning

Class 1: No Impairment

Class 2: Mild Impairment

Class 3: Moderate Impairment

Class 4: Marked Impairment

Class 5: Extreme Impairment

Activities of Daily Living

No impairment is noted

Impairment levels are compatible with most useful functioning

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

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

Social Functioning

Concentration, Persistence and Pace

Adaptation (Deterioration in a work-like setting)

17In support of Criterion 8, the applicant relies on the CAT assessments of Julian Amchislavsky and Dr. Patel, who both opined that she has a marked impairment in the sphere of Adaptation. Dr. Patel diagnosed the applicant with Somatic Symptom Disorder, with Predominant Pain, Persistent (possibly pre-existing, with worsening due to subject MVC, fibromyalgia and other injuries); Major Depressive Disorder, with Anxious Distress (primarily due to pain, and related stressors); Specific Phobia, Situational Type (vehicular). In addressing causation, Dr. Patel noted that the applicant did not have any diagnosable psychiatric condition pre-accident but was suffering from poor sleep and low mood. Despite these issues she was functioning normally. Dr. Patel opined that these pre-existing conditions made the applicant more vulnerable for future deterioration. In the doctor’s opinion, the accident materially contributed to her pre-occupation with pain, leading to her current psychological condition and functional impairments. Finally, he determined that but for the accident she would not have developed specific phobia, vehicular anxiety.

18The applicant also relies on the CAT neuropsychological assessment of Dr. Kurzman, who determined that the applicant had a marked impairment in the sphere of Concentration, Persistence and Pace, as well as the area of Adaptation. She also relies on the assessment of Dr. El-Saidy, her treating psychiatrist, who agreed with Dr. Kurzman on the impairment rating.

19The respondent relies on the CAT IE of Dr. Longhorn-Geddes, who diagnosed the applicant with Somatic Symptom Disorder, pain type chronic; moderate, and Adjustment Disorder, with mixed emotional features. Dr. Longhorn-Geddes’ psychometric testing of the applicant revealed validity issues which may support significant symptom exaggeration and over-reporting. Dr. Longhorn-Geddes questioned whether the accident was the cause of the applicant’s current psychological condition because she continued to work for two and half years following the accident as a tax analyst. Further, there was a significant gap in the medical records regarding the deterioration of her psychological condition following the accident and other stressors which may have been the predominant cause. During cross-examination, Dr. Longhorn-Geddes acknowledged that the applicant’s performance during Joan Saunder’s CAT OT assessment would be consistent with a marked impairment. However, due to the significant validity issues and other causal factors the doctor opined that, at most, the applicant has a mild impairment in all four spheres of functioning as a result of any accident-related psychological impairment. Since causation is central to this dispute, an analysis regarding causation is required.

Did the accident cause the applicant’s impairments?

20I do not find that the accident was a necessary cause of the psychological impairment the applicant puts forth as the basis for her CAT application and her claim for an IRB. I find the evidence about the applicant’s pre- and post-accident function inconsistent. Further, I find there are significant gaps in both the applicant’s post-accident employment history and the medical evidence which remain unexplained. Finally, I find that there was an intervening act in January 2018 which resulted in a decline in the applicant’s medical condition and function.

21The respondent argues that the applicant’s pre-accident medical history is significant as she had a 2012 accident which resulted in chronic back and neck pain and she had functional limitations as a result. Further, she had been diagnosed with osteoarthritis and had some pre-existing psychological issues in the year prior to the accident as a result of menopause. In addition, the deterioration of both the applicant’s physical and psychological condition flowed from a right knee injury she sustained while playing volleyball in January 2018. It maintains that the volleyball injury in 2018 was an intervening act which led to the applicant’s inability to work and deterioration in physical and psychological impairment and function. The applicant argues that the subject accident directly caused her impairments and submits that despite her medical history she was functioning at a higher-level pre-accident. Further, she did not have any pre-accident psychological issues that prevented her ability to function.

22It is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident she would not have suffered the impairments which form the basis for her application for CAT status. The court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment but a necessary cause. As per my reasons below, I find that the accident was not a necessary cause of the applicant’s psychological impairment and resulting functional limitations which forms the basis for her application for a CAT determination or her dispute involving her entitlement to an IRB.

23In analyzing causation, it is necessary to compare the applicant’s pre- and post-accident life to determine to what extent any accident-related impairment affected her ability to function. The applicant provided the following testimony regarding her pre-accident life and activities:

a) She worked for approximately 30 years as a junior tax analyst which required excellent analytical, communication and organization skills and the ability to multi-task.

b) She volunteered for the Scarborough Family Fun Club and would cook for and drive senior citizens to and from appointments.

c) She was socially active, enjoyed entertaining friends and had positive relationships with her family.

d) She was independent with her daily activities including self care, housekeeping, grocery shopping and meal preparation.

e) She enjoyed recreational activities such as playing volleyball, squash and tennis.

f) She was independent in accessing the community and she had no limitations walking or driving.

24I find the above testimony to be consistent with what she reported to assessors. She testified and reported to assessors that post-accident:

a) She returned to work on modified duties for a period of two and half years. Her employer accommodated her allowing her to work two days at home and three days in the office. She was provided with an ergonomic desk which allowed her to sit and stand. She contends that she was unable to continue working due to a deterioration of her physical pain and psychological condition.

b) She no longer volunteers for the Scarborough Family Fun club.

c) She can physically carry out self-care tasks, however, she lacks motivation and will skip showering and wear the same clothes for days in a row.

d) She is unable to carry out any housekeeping and home maintenance tasks and no longer cooks meals. She relies on her husband for everything.

e) She has been unable to manage the household finances and her husband has taken over this task.

f) Her relationship with her family has been impacted. She is no longer intimate with her husband and her adult son moved out of the home because of her mood swings.

g) Her social life has been impacted. She is no longer motivated to initiate social activities and withdraws from social gatherings.

h) She finds no pleasure in anything and has withdrawn from all previously enjoyed recreational activities.

i) Her mobility within the community has been limited due to driver and passenger anxiety and physical restrictions with walking.

j) Her daily life includes very little useful activity.

25I find the medical evidence supports that there were inconsistencies in the applicant’s testimony about both her pre- and post-accident function. As highlighted above, the applicant was involved in a prior accident in 2012, in which she sustained chronic neck and back pain. The applicant reported to most assessors that at the time of the subject accident, her complaints had completely resolved and had not interfered with her function. Based on the record before me this is not accurate. For example, a physiatry report of Dr. Kachooie dated September 17, 2015 (one-month pre-accident) notes that she was suffering from chronic back pain and refers to her having some functional limitations due to a leg injury. The pre-accident medical records also confirm that in the year prior to the accident she was experiencing problems with low mood, sleep and reduced libido which was attributed to menopause. I do not accept that the accident was responsible for her poor sleep or inability to be intimate with her husband as a result of any accident-related psychological impairment because these issues were present and documented pre-accident.

26I also find that the applicant’s evidence about some of her post-accident limitations to be unreliable when compared with the medical record before me. For example, she reported to some assessors that she was unable to participate in any recreational activities post-accident such as volleyball. However, this was contradicted by the reports of Dr. Marchie, treating physiatrist, which document that she sustained an acute injury to her right knee while playing volleyball in January 2018. The applicant acknowledged at the hearing that she continued to play volleyball, but not as often. In addition, there are references throughout the medical evidence that the applicant went swimming as part of her pain management program between 2015 to 2019. The applicant testified that she does not know how to swim and would use the track to walk. I find the applicant’s response to this perplexing as it was contradicted by the medical evidence. Furthermore, her evidence about her driving limitations was also inconsistent with the fact that she continued to commute from Ajax to Oshawa for work three days a week for two and a half years post-accident. There was no explanation for her sudden inability to drive.

27I also agree with Dr. Longhorn-Geddes that there was a large gap in the medical records regarding any psychological impairment between 2016 and 2018, which remained unexplained. Moreover, Dr. Erry’s CNRs in the first couple of years post-accident were sparse and any referrals to specialists do not appear to be accident-related. The first report that documents any accident-related psychological impairment is the report of Dr. Harris dated March 30, 2016, where the applicant reported that she was working on modified duties and was having a hard time coping, her sleep was poor due to pain, and she was feeling irritable, depressed and socially withdrawn. Dr. Harris diagnosed the applicant with Somatic Symptom Disorder, with predominant pain, persistent severe; Major Depressive Disorder, single episode severe, without anxious distress; and PTSD, chronic. Dr. Harris did not encounter any validity issues in the psychometric testing administered and recommended psychological treatment.

28Although the report of Dr. Harris supports that the applicant may have initially had some psychological impairment in the first five-months post-accident, as of the date of Dr. Seon’s psychological IE dated September 26, 2016, her psychological condition had improved. Dr. Seon’s report notes that she was coping well at the present time and was in no emotional distress. There was reference to some of her physical symptoms impacting her ability to carry out heavier household tasks. However, she was able to swim three times per week, continue to socialize and drive. Dr. Seon notes that the applicant denied having significant difficulties with concentration and memory and engages in most activities, including workplace activities, she did pre-accident. Further, her initial complaints of headaches had completely resolved.

29Similar to the findings of Dr. Longhorn Geddes, Dr. Seon also encountered validity issues with the psychometric tests administered, as the results indicated there was symptom magnification to the point of almost invalidating the results. Dr. Seon opined that there was no accident-related psychological diagnosis. Of note, some of the reports of the physical assessors also note inconsistencies or symptom exaggeration in the applicant’s presentation. Dr. Patel testified that the applicant’s tendency to exaggerate her symptoms is consistent with her diagnosis of Somatic Symptom Disorder.

30In light of the inconsistencies in the evidence and the validity issues encountered by assessors, I give the applicant’s testimony about her accident-related psychological impairment and functional limitations little weight. Further, it calls into question the reliability of the applicant’s performance during both parties’ CAT OT assessments. For this reason, I also give the OT assessments of both Mr. Amchivslavky and Ms. Saunders little weight.

31I also find it significant that the applicant submitted no post-accident employment records to demonstrate that she was struggling in any way in carrying out her employment tasks between October 2015 and January 2018, when she sustained the injury playing volleyball. However, pre-accident performance reviews were submitted, which showed there were performance issues in the years leading up to the accident. I am perplexed by this omission, as in my view these records would document any purported decline in performance and function in employment in the first two and a half years post-accident. I also find that the lack of employment documentation post-accident undermines her claim that any accident-related impairment led to a decline in work performance. This documentation would be highly relevant to both the issue of whether she sustained a marked impairment in adaptation and her claim for IRBs. No explanation was provided as to whether these records exist or why they were not relied upon at the hearing.

32The applicant was employed as a tax analyst and her job entailed interpreting and explaining tax legislation to members of the public and writing reports. Good analytical and communication skills as well as the ability to multi-task were essential to carry out these duties. Again, the applicant continued to work for two and a half-years post-accident in this role. In my view, this fact is not compatible with an individual who suffered a marked impairment in adaptation as a result of the accident. In addition, in January 2018, two months following the volleyball injury, Dr. Marchie recommended that the applicant stop working because of the right knee injury. I agree with the respondent that this was an intervening act which led to the deterioration in the applicant’s physical and psychological function.

33The applicant further relies on various reports of s. 25 and 44 assessors which she maintains support that the accident was the cause of her psychological impairment. I do not find these reports persuasive as they significantly post-date the accident and were done after the 2018 volleyball injury. In addition, I do not find the assessors had a complete picture of the applicant’s post-accident status as they did not review the post-accident employment file and did not review all of the medical records. For the same reasons, I do not find the CAT reports of Dr. Patel and Dr. Kurzman persuasive. I have also given Dr. El Saidy’s opinion limited weight because as the applicant’s treating psychiatrist the doctor is not a neutral assessor and had only seen the applicant on two occasions. Therefore, the applicant’s argument that this report should be given more weight because it was done by a treating practitioner is without merit. While I acknowledge that the applicant sustained some physical and psychological impairments, as a result of the accident, I do not find these impairments are responsible for her current condition and her application for CAT status.

34I did not find the case law relied upon by the applicant helpful to her position on causation. For example, the applicant relied on the Tribunal’s decisions in Bishop v TD General Insurance Company, 2022 CanLII 33194 (ON LAT); Smith v Certas Insurance Company, 2022 CanLII 7881 (ON LAT); and Premus v. Aviva Insurance Canada, 2022 CanLII 84694 (ON LAT). The facts here are distinguishable from the fact scenarios in the decisions relied upon by the applicant, as the insureds in those cases did not go back to work for two and a half years following the accident and did not involve the same degree of inconsistent reporting and validity issues in psychometric testing. Further, there were not significant gaps in the medical records followed by an intervening act resulting in a significant decline in impairment and function like there is in the present case.

35For all of the above reasons, the applicant has not met her onus in proving on a balance of probabilities that but for the accident she would have sustained the psychological impairment which forms the basis for her CAT application or her entitlement to an income replacement benefit.

Is the applicant entitled to an IRB of $45.00 per week from April 4, 2018, to date and ongoing?

36The applicant is not entitled to an IRB as I do not find that she suffers a complete inability to carry out her employment tasks because of any accident-related impairment.

37Section 5(1) of the Schedule provides that an insurer shall pay an IRB if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential duties of their pre-accident employment. After the 104-week mark, the test for ongoing entitlement to IRBs becomes more stringent. At this point post-accident, s. 6 provides the insured must prove that they suffer a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.

38The evidence supports that the applicant returned to work in her occupation as a tax analyst following the accident and continued to work up until April 4, 2018. The applicant maintains that she worked on modified duties up until that point in that she was allowed to work from home two-days a week and went into the office three days a week. Further, she was provided with an ergonomic desk that allowed her to sit and stand. As highlighted above, the applicant did not submit the post-accident employment file in support of her claim for an IRB. No evidence was submitted to support that she was struggling to carry out her employment tasks in any way during the first two and a half-year period as a result of any accident-related impairment.

39Further, the medical evidence supports that she stopped working following the volleyball injury to her right knee in January 2018. As noted above, it was Dr. Marchie, the applicant’s treating physiatrist, who recommended she stop working as a result of this injury. I do not find the reports relied upon by the applicant in support of her entitlement to post-104 IRBs persuasive as the assessors did not review the employment file when completing their assessment or consider the role of the volleyball injury in 2018. As highlighted above, I find the volleyball injury in January 2018 to be an intervening act which resulted in the applicant’s inability to work. The bulk of the psychological reports were completed after this incident and showed a consistent decline in the applicant’s psychological condition.

40The applicant has not met her onus in proving on a balance of probabilities that she suffered a complete inability to work as a result of any accident-related impairments. Therefore, it is not necessary to address the preliminary issue raised by the respondent of whether she is barred from proceeding with her claim for failing to dispute the respondent’s denial within the two-year limitation period.

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

41Section 51(1) states that an amount payable in respect of a benefit is overdue if the insurer fails to pay a benefit within the time required under this regulation. Since I have determined that the applicant has not established that the accident was the cause of her impairments and her inability to work, she is not entitled to payment of interest as no amounts are overdue pursuant to s. 51(2).

Is the applicant entitled to an award under s.10 of Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?

42The applicant is not entitled to an award.

43Regulation 664, R.R.O. 1990 (Regulation 664) states that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

44In light of my decision in this matter the applicant is not entitled to an award as I have determined that the threshold to prove causation has not been met. Therefore, I do not find the respondent unreasonably withheld or delayed payment of benefits.

CONCLUSION

45For all of the above-noted reasons, the applicant did not sustain a CAT impairment as a result of the accident. The applicant is not entitled to an IRB, interest or an award. This application is dismissed.