Salah Zidan v. Aviva Insurance Company, 2023 CanLII 40103

Licence Appeal Tribunal

Citation: Zidan v. Aviva Insurance Company, 2023 ONLAT 21-012028/AABS

Licence Appeal Tribunal File Number: 21-012028/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:

Salah Zidan, Applicant

and

Aviva Insurance Company, Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Salah Zidan, Applicant James Armstrong, Counsel Vladislav Lynsaght, Counsel

For the Respondent: Bland McPherson, Senior Litigation Specialist Michael Silver, Counsel

Court Reporters: Nikita Ivanchenko Joni Zhamo

Heard by Videoconference: March 27-29, 2023

OVERVIEW

1Salah Zidan, (the applicant), was involved in an automobile accident on August 6, 2017, 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), Aviva Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2Prior to the hearing, the applicant filed a motion to exclude the surveillance evidence of the respondent. The applicant submits that this evidence was provided to them on March 3, 2023. This is after the October 22, 2022 disclosure deadline in the case conference order. Additionally, the respondent has not provided the complete unredacted surveillance tapes as required by the case conference order. As such, the applicant asserts he is prejudiced because he is unable to respond to this evidence.

3The respondent submits that despite the wording in the case conference order, there is no obligation to disclose surveillance because litigation privilege applies. The respondent’s decision to waive privilege was not made until after it received the most recent surveillance evidence on March 1, 2023. Within 48 hours, the respondent disclosed all surveillance reports and footage in its possession to the applicant.

4The respondent made no effort to confirm if the surveillance footage provided to the applicant is unedited because, in their view, an additional order from the Tribunal is required before such action must be undertaken.

5The respondent further submits that there is no prejudice to the applicant. Surveillance evidence was provided in as much time as would reasonably be required by the applicant to respond to this evidence. To accommodate the applicant, the respondent continues to consent to an adjournment of the hearing to give the applicant more time to respond. Additionally, if there is prejudice to the applicant, the probative value of the evidence outweighs the prejudicial effect to the applicant’s case.

6I am excluding the respondent’s surveillance evidence from this proceeding. If the respondent intended to rely on litigation privilege, then this should have been raised at the case conference. Instead, the respondent waived litigation privilege by agreeing to disclose item 8 listed in the applicant’s case conference summary which includes the complete unredacted surveillance tapes.

7The respondent is unable to confirm if the complete surveillance footage was provided to the applicant. In my view, the applicant is not in a position to respond to surveillance evidence without confirmation that the complete unredacted video was provided. Consequently, I find that the probative value of this evidence does not outweigh the fairness issue arising from the unverified completeness of the surveillance video.

8With regard to adjourning this matter, I find that the respondent did not comply with the clear language of the case conference order. This does not justify delaying this proceeding with an adjournment.

9The respondent also brought a motion to exclude the applicant’s Supplementary Brief, and two items from the applicant’s main brief, namely, the Hospital Records of University Health Network from September 2017 to February 2023 and the Prescription Summary of Health Shield Pharmacy from June 24, 2019 to February 9, 2023.

10In regard to the Supplementary Brief, this material was filed one business day before the hearing. Consequently, the respondent did not have sufficient notice to prepare their case with this material in mind.

11The other two items in the main brief were served on the respondent for the first time when the brief was filed, 11 calendar days before the hearing. The respondent was not previously aware of these documents. As such, it did not have a reasonable opportunity to order addendum reports to address this late evidence.

12The applicant submits that multiple requests were made to obtain the two items in the main brief, but these were not received until March 3, 2023. These items are late, but only because these items were not received in a timely fashion from third parties.

13In regard to the applicant’s Supplementary Brief, this material was not known to the applicant until recently. It was obtained and disclosed in a timely fashion, albeit late, given the circumstances.

14I find that the applicant’s evidence is admissible. Under Rule 9.4 of the Tribunal’s Common Rules of Practice and Procedure, the Tribunal may allow a party to rely on evidence that fails to comply with any Rules or Orders. In the case of the two items in the main brief, this material consists of hospital records and a prescription summary. These are not expert reports that challenge the position of the respondent. Consequently, the level of prejudice is minimal and can be offset by questioning the applicant on any concern or issue the respondent may have arising from these documents.

15The Supplementary Brief consists of the redacted adjuster’s log notes, photos of the injuries sustained from the accident, and a video of the accident. The adjuster’s log notes were sourced from the respondent, and as such, the respondent and their witness, Bland McPherson, a Senior Litigation Specialist, would already be familiar with this document.

16The photos and the video are new evidence to the respondent, however, there is no dispute between the parties on what took place during the accident. Once again, the prejudice to the respondent is minimal and can be reasonably offset by questioning the applicant.

ISSUES

17The issues in dispute are:

1. Is the applicant entitled to attendant care benefits (ACB) in the amount of $3,000.00 per month (less amounts paid) from August 6, 2017, to date and ongoing?
2. Is the applicant entitled to $1,995.54 ($4,154.55 less $2,159.01 approved) for occupational therapy services, proposed by Joanne Romas & Associates in a treatment plan/OCF-18 (“plan) submitted on September 10, 2020, and denied on December 21, 2021?
3. Is the applicant entitled to $62.03 ($1,131.36 less $1,069.33 approved) for assistive devices, proposed by JRA in a plan submitted on September 10, 2020, and denied on December 21, 2021?
4. Is the applicant entitled to $10,661.54 for assistive devices, proposed by JRA in a plan submitted on February 25, 2021, and denied on July 21, 2021?
5. Is the applicant entitled to $503.90 ($2,000.00 less $1,496.10 approved) for a psychological assessment, proposed by Dr. Alfonso Marino in a plan submitted on September 18, 2019, and denied on October 2, 2019?
6. Is the applicant entitled to $1,630.35 for an in-home assessment, proposed by JRA in a plan submitted on April 4, 2019, and denied on December 27, 2019?
7. Is the applicant entitled to $4,035.54 for occupational therapy services, proposed by JRA in a plan submitted on July 11, 2022, and denied on July 13, 2022?
8. Is the applicant entitled to $798.90 for assistive devices, proposed by JRA in a plan submitted on July 11, 2022, and denied on July 13, 2022?
9. 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?
10. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

18The applicant is not entitled to an ACB.

19The applicant is not entitled to occupational therapy services.

20The applicant is entitled to an inner bathmat.

21The applicant is not entitled to the remaining assistive devices.

22The applicant is entitled to a psychological assessment and an attendant care assessment.

23The respondent is not liable to pay an award.

24The applicant is entitled to interest.

ANALYSIS

ACB

25I find that the applicant is not entitled to any further attendant care benefits beyond what has already been paid.

26The Schedule requires the respondent to pay for reasonable and necessary attendant care services incurred by or on behalf of the applicant as a result of the accident.

27Prior to the accident, the applicant purchased optional coverage which allows him to access up to $1,000,000.00 in attendant care benefits. The applicant and respondent agree that the applicant is entitled to attendant care benefits up to June 17, 2022, the date of the respondent’s denial. The only dispute in this period is the quantum of the benefit.

28The applicant relies on an Assessment of Attendant Care Needs (Form 1) dated June 18, 2020 and completed by Rena Neufeld, an occupational therapist. She determined that the applicant required a monthly amount of $8,410.75 in attendant care services. The applicant submits that weight should be given to the Form 1 of Ms. Neufeld. Her report documents the numerous limitations of the applicant, including his difficulty with walking and bending, completing transfers, navigating stairs, and also his issues with balance. These observations justify the level of attendant care she recommends.

29Shoabana Kugathasan, an occupational therapist, completed a Form 1 for the respondent on December 17, 2020. She found that the applicant required a monthly amount of $731.04 in attendant care services. The respondent submits that little weight should be given to the Form 1 of Ms. Neufeld. Her observations were made by way of video conference. This compromised her ability to properly assess the applicant. The findings in her report are also undermined by her acknowledgement that the applicant’s attendant care needs changed after he was provided with assistive devices. Finally, the amount for supervisory care is excessive. She saw him ambulate and negotiate stairs, but determined that he is unable to be self sufficient in an emergency.

30I give more weight to the Form 1 of Ms. Kugathasan. She conducted her assessment in-person. This put her in a better position to observe the applicant than the virtual assessment conducted by Ms. Neufeld. Ms. Kugathasan’s attendant care recommendations are also more accurate because she tested the applicant’s ability to complete specific tasks. For example, Ms. Kugathasan observed the applicant being able to dress and undress without difficulty, except for putting on socks. Based on these observations, she recommended no minutes for dressing and undressing but did recommend a sock aid. Ms. Neufeld recommended 10 minutes of attendant care per day because she believed that the applicant’s limitations would make it difficult for him to dress and undress. She did not test his ability to dress and undress. Consequently, her recommendation is less reliable.

31Ms. Neufeld recommends 9,295 minutes per week for supervisory care. She testified that she observed the applicant navigating the stairs by pulling the handrail, proceeding with a slow pace, and generally having difficulty going up and down the stairs. She determined that the applicant requires continuous supervisory care because he is unable to safely leave his apartment in an emergency. Ms. Neufeld did not test the applicant. She presumed the applicant could not safely leave his apartment based on observations she made during her virtual assessment.

32Ms. Kugathasan testified that the applicant must be able to exit his apartment in three minutes in order to find that he would be self-sufficient in an emergency. When she tested the applicant, he was able to leave his apartment and exit the building within one minute. It took him 19.2 seconds to descend the stairs. She recommends no minutes for supervisory care. In my view, Ms. Kugathasan’s recommendation is more reliable because she tested the applicant and established that he has the functional ability to safely leave his apartment in an emergency.

33Ms. Kugathasan conducted an in-person assessment and tested the applicant’s ability to perform specific tasks. Consequently, I give more weight to her attendant care recommendations. The applicant received the attendant care benefits recommended by Ms. Kugathasan up to June 17, 2022. As such, I find that the applicant is not entitled to additional attendant care prior to June 17, 2022.

34The applicant submits that he is entitled to attendant care benefits after June 17, 2022 because his accident related injuries continue to cause impairments. He relies on the September 21, 2018 Orthopaedic Assessment Report of Dr. Osinga. It states that the applicant has an ongoing impairment in his knees related to the accident, including a possible fracture of an osteophyte. The report also notes that the applicant is likely at or near maximum medical improvement or recovery. The applicant further submits that the assessment of Dr. Ramunas Saplys, an orthopaedic surgeon, used by the respondent to end the ACB in 2022, is critically flawed. Dr. Saplys’ assessment contains factually incorrect information on the applicant’s return to work and does not acknowledge how the applicant’s ability to function changed after the accident.

35The respondent submits that Dr. Osinga’s report is too far removed from the present time, and therefore, cannot be relied upon to determine how the applicant is today. The respondent also notes that Dr. Osinga uses vague language when discussing causation. Moreover, Dr. Saplys’ assessment should be given more weight because it considers the underlying conditions that are the actual reason for the applicant’s reduced level of function.

36I find that the applicant is not entitled to an ACB after June 17, 2022 because the evidence does not show that his ongoing impairments are caused by the accident.

37The applicant testified that he was “banged up” from numerous injuries he sustained before the accident. The most relevant pre-accident injuries and orthopedic problems are as follows:

1. Right Knee: In 2008, Dr. Gilbert Yee, orthopaedic surgeon, documented chronic right knee complaints caused by significant degenerative changes. At that time, he recommended arthroscopy.
2. Left Ankle: The syndesmotic screws in the applicant’s left ankle cracked while he was playing hockey in December 2006. The cracked screws were never removed. He left ankle also has osteoarthritis. Both conditions cause pain in his left ankle.
3. Right Wrist: On October 12, 2017, about two months after the accident, the applicant was examined by Dr. Rajiv Gandhi, an orthopaedic surgeon. Dr. Gandhi’s clinical note comments on the applicant’s right wrist. It states that the applicant had a chronic scapholunate injury, a dorsal intercalated segment instability deformity, and significant radiocarpal osteoarthritis prior to the accident.

38It is important to note previous injuries and orthopedic problems to his right knee, left ankle, and right wrist because these areas were injured in the accident.

39The applicant testified that he had pain before the accident, but was functional with the use of the narcotic painkiller Oxycocet. He was prescribed 150 tablets per month before the accident.

40It is also noteworthy that the applicant returned to work a couple of months after the accident on modified duties. He drove trucks and made sure the trucks were loaded. He worked 60 hours per week until he fell off a scaffold in June, 2019. He did not return to work after this workplace injury.

41Dr. Osinga examined the applicant just over a year after the car accident. He determined that the applicant has soft tissue injuries to his right wrist and left ankle. He further concludes that the applicant sustained soft tissue strain and a possible osteophyte fracture of the right knee. Dr. Osinga also opines that it is likely the applicant is at or near maximum medical improvement or recovery of soft tissue injuries to an extent that can be reasonably expected.

42The orthopaedic examination of Dr. Saplys, dated June 13, 2022, concludes that the applicant’s sprain and strain injuries and the osteophyte fracture of the right knee have healed. Dr. Saplys further opines that the applicant stopped working because of ongoing pain caused by pre-existing, well-documented degenerative changes that are unrelated to the accident.

43There is no difference between the opinions of Dr. Osinga and Dr. Saplys regarding the types of injuries sustained in the accident. Both agree that the applicant suffered sprain and strain injuries to the right knee, left ankle, and right wrist and that the applicant sustained an osteophyte fracture of the right knee.

44The difference between the two reports, according to the applicant, is that Dr. Osinga states that the applicant’s ongoing pain is caused by the accident, while Dr. Saplys finds that the accident-related injuries have resolved and the applicant has no ongoing pain related to the accident.

45I disagree with the applicant’s interpretation of Dr. Osinga’s findings for two reasons. Firstly, Dr. Osinga does not attribute the applicant’s ongoing pain in his left ankle and right wrist to the accident. The only ongoing impairment he attributes to the accident is to the applicant’s knees.

46Secondly, Dr. Osinga is unaware that the applicant was working at the time of the assessment. Instead, he mistakenly believes the applicant stopped working after the car accident, and opines that the applicant’s inability to work establishes that some portion of the difficulties in the applicant’s knees are attributable to the accident. As such, Dr. Osinga’s findings on the applicant’s reduced level of function is based on incorrect information. Consequently, little weight can be given to this part of his assessment.

47Contrary to the applicant’s submissions, Dr. Saplys does not ignore the applicant’s reduced level of function. In fact, Dr. Saplys states that the applicant had to stop work due to ongoing pain. Dr. Saplys opines that the pain is caused by pre-existing, well documented degenerative changes.

48Ms. Kugathasan testified that the applicant continues to require attendant care. However, she could not recommend attendant care because Dr. Saplys attributes the applicant’s ongoing impairment to his degenerative condition and not to the accident. The applicant submits that pre-existing medical conditions do not disentitle him to benefits.

49I agree that pre-existing conditions do not disentitle an insured person from benefits. However, the applicant still bears the onus of establishing, on a balance of probabilities, a causal link between the accident and his ongoing impairments. The difficulty for the applicant is that there is a large volume of evidence documenting his serious pre-existing and ongoing degenerative orthopaedic conditions, and no medical evidence showing that his current impairments are caused by the accident.

50I also note that after the accident, the applicant returned to work on modified duties and was working 60 hours per week for about a year and a half. Working modified duties does show a reduced level of function after the accident. However, being able to work very long hours as a truck driver is inconsistent with someone who requires attendant care. Moreover, the applicant did not finally stop working because of an accident-related injury. He stopped working after a workplace accident in June 2019. Since then, his ability to function has declined. This is consistent with his degenerative changes.

51The evidence before the Tribunal does not support a finding that the applicant’s decreased function is attributable to the accident. For this reason, I find that he is not entitled to an ACB after June 17, 2022.

52The respondent must pay medical benefits to the applicant if he sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense.

53The applicant bears the onus of proving entitlement to proposed treatment by establishing, on a balance of probabilities, that a treatment plan is reasonable and necessary.

Is the applicant entitled to $1,995.54 for occupational therapy services?

54The applicant is not entitled to $1,995.54 for occupational therapy services.

55Ms. Neufeld completed the treatment plan and recommended eight occupational therapy sessions. The respondent approved four of these sessions. She testified that, generally, four sessions is enough to provide the information to function more effectively. However, more sessions are usually required to develop a plan and assist with performance issues.

56Ms. Kugathasan recommended only four sessions because the applicant had already resumed participation in some activities using modified techniques. Under these circumstances, less sessions were needed to effectively improve his functioning.

57I prefer the recommendation of Ms. Kugathasan because she addresses the specific circumstances of the applicant. This is unlike Ms. Neufeld, whose recommendation is more generalized.

58Consequently, I find that the applicant is not entitled to $1,995.54 for occupational therapy services, as he has not established that four additional occupational therapy sessions are reasonable and necessary.

Is the applicant entitled to $62.03 for assistive devices?

59The applicant is not entitled to the full amount of $62.03 for assistive devices. He is entitled to $24.95 + HST for a bathmat.

60Most of the assistive devices in Ms. Neufeld’s treatment plan were approved. The long handled sponge and dressing stick were not approved because Ms. Kugathasan determined that the applicant has a sufficient range of motion and does not require these items. As previously noted, I found the in-person assessment and testing of Ms. Kugathasan more reliable than the virtual observations of Ms. Neufeld.

61It follows that Ms. Kugathasan’s in-person testing is a better indicator of the applicant’s functional ability and that he does not require these assistive devices. For this reason, I find that these two assistive devices are not reasonable and necessary.

62Ms. Kugathasan determined that the applicant would not require the inner bathmat because he would be sitting on a shower chair with suction cups.

63The applicant testified that he needs an inner bathmat to prevent himself from slipping and falling.

64In their attendant care assessment, Ms. Kugathasan and Ms. Neufeld agree that the applicant had balance issues and this heightens safety concerns when showering. Having a chair with suction cups is helpful, but in my view, does not reasonably address safety concerns. Consequently, I find that the applicant is entitled $24.95 + HST for an inner bathmat because it is reasonable and necessary.

Is the applicant entitled to $10,661.54 for assistive devices?

65The applicant is not entitled to $10,661.54 for assistive devices.

66Nicholas Livadas, an occupational therapist, completed a treatment plan dated February 25, 2021 that proposed an adjustable bed for $6,200.00, stacked laundry machines for 1,618.00, and a meal delivery service for $1,440.00. The total amount of the plan, including the completion of the form and HST, is $10,661.54.

67An adjustable bed was recommended because the applicant has poor sleep due to significant accident related pain and his inability to find a comfortable position on a flat bed.

68Ms. Susana Pui Shan Au, an occupational therapist, assessed the applicant for an insurer’s examination (IE) on July 6, 2021. The applicant stated that he has sleep apnea and that he was currently without a continuous positive airway pressure (CPAP) machine. He further stated that he wakes up every two hours, but does not know why. He said it could be stress, anxiety, or worries about his future. He also reported nightmares related to driving. The applicant further stated that he would not say pain wakes him up. When asked if his mattress is comfortable, he replied that “it’s okay.” Ms. Au did not recommend an adjustable bed because the applicant did not confirm that he wakes up because of pain and being uncomfortable in his bed.

69At the hearing, the applicant testified that it hurts when he tosses and turns during sleep. He believes that an adjustable bed would help because it would help him get comfortable and to be in less pain.

70Ms. Au confirmed the reasons he wakes up at night. Pain and discomfort were not part of those reasons. The applicant subsequently testified that pain does cause him to wake up. However, he provided no explanation for the previous answers he gave to Ms. Au. For this reason, I give more weight to the evidence of Ms. Au and find, on a balance of probabilities, that an adjustable bed is not reasonable and necessary.

71In regard to the stackable laundry machines and a meal delivery service, I note that the applicant was provided with attendant care up to June, 2022. Ms. Karol Peter, the personal support worker who provided attendant care to the applicant, testified that she did laundry for the applicant.

72I further note that the respondent provided 45 minutes per day of attendant care for meal preparation.

73The applicant received attendant care for laundry and had access to attendant care for meal preparation until a determination was made in June 2022 that his accident related injures had resolved. Under these circumstances, the stackable laundry machines and a meal delivery service are not reasonable and necessary. Therefore, I find that he is not entitled to these items.

Is the applicant entitled to $503.90 for a psychological assessment?

74The applicant is entitled to $503.90 for a psychological assessment.

75Dr. Alfonso Marino, a psychologist, prepared a treatment plan dated September 18, 2019 for a psychological assessment. The cost of the assessment is $2,000.00. The cost of completing the treatment plan is $200.00. The total cost is $2,200.00.

76The respondent approved $200.00 for the completion of the treatment plan form and $1,496.10 for the assessment. According to the respondent, $2,000.00 is not reasonable and necessary because 10 hours of clinical time is sufficient to perform a routine, non-complicated psychological assessment. The respondent submits that this decision was reasonable. No further evidence or submissions were provided by the respondent.

77The parties agree that the assessment is reasonable and necessary. The only dispute is the quantum of the benefit.

78The cost of the assessment is based on Dr. Marino’s professional judgement. His opinion carries weight unless there is evidence or submissions that justify not relying on his professional judgement. The respondent has provided no such evidence or submissions.

79Consequently, I find that the quantum of the treatment plan is properly justified and that the applicant is entitled to $503.90 for a psychological assessment.

Is the applicant entitled to $1,630.35 for an attendant care assessment?

80The applicant is entitled to $1,630.35 for an attendant care assessment.

81Joanne Romas, an occupational therapist, completed a treatment plan dated April 14, 2019 for an attendant care determination. The cost of the treatment plan is $1,630.35.

82The respondent denied this treatment plan based on a paper review completed by Ms. Kugathasan. She reviewed the reports of Dr. Osinga and Dr. Marino and determined that no attendant care is necessary.

83Ms. Kugathasan’s conclusions are not supported by the documents she reviewed. Dr. Osinga’s September, 2018 report states that, post-accident, the applicant depends on his spouse for most household tasks such as cooking, cleaning, and laundry. Dr. Marino assessed the applicant over a year later in October, 2019. By that time, the applicant had separated from his wife and was living alone. Dr. Marino writes that the applicant has difficulty completing household tasks such as cooking, cleaning, and laundry. In my view, this statement clearly alerted Ms. Kugathasan to the difficulties the applicant was having with activities requiring attendant care.

84It is also noteworthy that the respondent did ultimately approve attendant care for the applicant. This also supports approving this treatment plan.

85There is enough evidence before the Tribunal to establish, on a balance of probabilities, that the treatment plan for an attendant care determination is reasonable and necessary. Consequently, the applicant is entitled to is entitled to $1,630.35 for this treatment plan.

Is the applicant entitled to $4,035.54 for occupational therapy services and $798.90 for assistive devices?

86The applicant is not entitled to $4,035.54 for occupational therapy services, nor $798.90 for assistive devices. Both treatment plans were submitted after Dr. Saplys determined that the applicant’s accident related injuries have resolved. As noted above, I agree that the applicant’s accident related injuries were resolved by the time of Dr. Saplys’ assessment. Consequently, causation is not established and these treatment plans cannot be found to be reasonable and necessary.

AWARD

87The respondent is not liable to pay an award.

88Under s.10 of Regulation 664, a lump sum may be awarded to the insured if the Tribunal finds that the insurer unreasonably withheld or delayed the payment of benefits.

89The applicant submits that the respondent acted unreasonably and in bad faith by not re-assessing the $1,630.35 treatment plan for an attendant care assessment. It maintained the denial, even though the respondent eventually approved attendant care. The applicant further submits that the respondent unreasonably relied on the report of Dr. Saplys, and ignored evidence contradicting the findings of his report.

90The respondent did not make submissions on the issue of the award.

91I find that the two points raised by the applicant do not establish that the respondent is liable to pay an award.

92The respondent did not reassess the treatment plan for an attendant care assessment, even after attendant care was approved. On the face of it, this appears unreasonable.

93Ms. McPherson adjusted the file after the LAT application was filed. She testified that the respondent maintained the denial of the attendant care assessment after attendant care was approved. However, no testimony was elicited on why the denial was maintained.

94There is no evidence establishing the motivation or the reasons for the respondent’s conduct. Without such evidence there is an insufficient basis to find that the respondent acted unreasonably or in bad faith.

95In regard to the respondent’s reliance on the assessment of Dr. Saplys, in my view, there is no evidence that meaningfully contradicts Dr. Saplys’ finding on causation. Consequently, it is not possible to find that the respondent acted unreasonably to deny benefits to the applicant.

96For these reasons, I find that the respondent did not act in bad faith and that the respondent is not liable to pay an award.

INTEREST

97Interest is payable on a disputed benefit from the date of the application to the Licence Appeal Tribunal to the date a decision is issued that finally disposes of the dispute.

98The Tribunal determines that the applicant is entitled to $503.90 for a psychological assessment, $1,630.35 for an attendant care assessment and 24.95 plus HST for an inner bathmat. As such, the applicant is also entitled to interest for the overdue payment of these benefits pursuant to 51(4) of the Schedule.

ORDER

99For the above reasons, the Tribunal finds:

i. The applicant is not entitled to any additional ACB.

ii. The applicant is not entitled to $1,995.54 for occupational therapy services.

iii. The applicant is not entitled to a portion of $62.03 for assistive devices. Specifically, he is entitled to 24.95 plus HST for an inner bathmat.

iv. The applicant is not entitled to $10,661.54 for assistive devices.

v. The applicant is entitled to $503.90 for a psychological assessment.

vi. The applicant is entitled to $1,630.35 for an attendant care assessment.

vii. The applicant is not entitled to $4,035.54 for occupational therapy services, nor $798.90 for assistive devices.

viii. The respondent is not liable to pay an award.

ix. The applicant is entitled to interest.