Asha Natkunaseelan v. Definity Insurance Company, 2023 CanLII 47534

File Information

Licence Appeal Tribunal File Number: 21-005850/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:

Asha Natkunaseelan Applicant

and

Definity Insurance Company Respondent

Decision and Order

Vice-Chair: D. Gregory Flude

Appearances:

For the Applicant: Miriella Dahab, Counsel Avneet Kaur, Counsel

For the Respondent: Herimina Nuric, Counsel

Court Reporter: Martin Majewska, Alyssa Scott (Nov 8, 2022), Jason Nebelung (Nov 29, 2022, Mar 7 and 8, 2023)

Tamil Interpreter: Kamala Yuhendran

Heard by videoconference: November 7 through 10, 23 and 29, 2022, March 7 and 8, 2023

Reasons for Decision and Order

Overview

1The applicant, Asha Natkunaseelan, was involved in an automobile accident on February 1, 2016, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a determination that she is catastrophically impaired and entitled to several benefits. The respondent, Definity Insurance Company (“Definity”), submits that the applicant does not meet the definition of catastrophic impairment in s. 3.1 of the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg 34/10 (“Schedule”), that is, she has not sustained a Class 4 or Class 5 impairment in one of the four areas of function defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”).

2To understand the dispute between the parties, it is necessary to understand that the applicant is shy. She has always been shy. She was shy in kindergarten and Grade 1. She had two close friends through most of grade school, a friendship that continued when all three attended the same high school. During high school a third friend was added but the number returned to two friends when one moved away. Since the 2016 accident the remaining two friends have drifted away leaving the applicant isolated socially. She has largely withdrawn from interactions with her family, keeping them to a minimum.

3It was Dr. Michelle Keightley, a psychologist and clinical neuropsychologist specializing in developmental pathways for children, youth, and young adults with a variety of emotional and developmental issues, who found the applicant to have suffered Class 4 Marked impairments. Dr. Keightley attributed the cause and severity of those impairments to the 2016 accident. Dr. Joel Eisen, a psychiatrist retained by Definity, did not rate the applicant. In his opinion, the applicant’s past medical history indicates that her current condition is not accident-related but is the inevitable outcome of a pre-existing psychological condition. He finds that the applicant suffered from selective mutism as a child and that the developmental pathway for children with selective mutism leads exactly to the applicant’s current condition. The 2016 accident, in Dr. Eisen’s opinion, had no lasting impact on the applicant’s current state.

4Having considered the evidence, I find that the applicant has sustained a Class 4 Marked impairment in a least one of the four areas of function set out in the Guides as a result of the accident. She is catastrophically impaired. I also find that she is entitled to some, but not all of the benefits she seeks.

Preliminary Evidentiary Issue

5The respondent brought a motion to require the applicant to disclose academic transcripts from the York Region District School Board. It had issued a summons to a superintendent of the York Region District School Board to attend this hearing on November 30, 2022, and to bring the applicant’s academic and other records. The applicant objects to the production of these records, arguing that they are not relevant and were requested late in the process, that is, on the deadline for final record disclosure. She relies on Awadalla v Intact Insurance Company, 2021 CanLII 93245 (ON LAT) (“Awadalla”).

6The basis for the applicant’s claim that she is catastrophically impaired is that she suffers a psychological impairment as a result of the accident that is of sufficient severity to significantly impede her useful functioning in two psychological areas: social functioning and adaptation to work and work-like settings. The respondent submits that her academic performance is a measure of her ability to adapt to work and work-like settings and her academic performance, as shown in her transcripts, is relevant. The applicant submits that her assessors have stated that she has no issues with academic performance as long as she is in a very controlled environment, such that academic success is not evidence of her ability to perform in the wider work context.

7If the recent technological revolution and the COVID pandemic have demonstrated anything, it is that the nature of work has changed greatly in the last several years. The applicant uses a narrow definition of work that incorporates the traditional view of attending a place of employment each day and functioning in that environment. While I am not prepared to rule on which is the correct version of modern work at this time, for the purposes of applying the work and work-like settings analysis, it is at least arguable that the Tribunal should consider a broader definition where much if not all work can be performed away from the traditional office setting. The applicant’s on-line performance in education mirrors remote employment to some extent. Thus, I find that the academic transcripts are relevant.

8I find the Awadalla case provides little assistance to the applicant. It addresses the respondent’s production of a supplementary document brief two days before a hearing. In the current case, the respondent requested documents that were under the sole control of the applicant approximately two months prior to the hearing. The applicant requested the documents in question approximately one month before the hearing. I also note that there was no mechanism set out in the case conference order for either party to request documents not specifically listed. I find nothing untoward about the respondent’s request or the timing of the request.

9Given that the academic transcripts have already been ordered by the applicant, I order her to produce them forthwith to the respondent on receipt.

Issues in Dispute

10The issues to be decided in the hearing are:

1. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
2. Is the applicant entitled to attendant care benefits of $1,093.44 per month from March 22, 2021 to date and ongoing?
3. Is the applicant entitled to $11,316.30 for case management services, proposed Healthmax Physiotherapy in a treatment plan (“plan”) dated March 2, 2021, and denied March 11, 2021?
4. Is the applicant entitled to $4,828.06 for occupational therapy services, proposed by Healthmax Physiotherapy in a plan dated May 5, 2021, and denied May 18, 2021?
5. Is the applicant entitled to $2,347.00 for an attendant care needs assessment, proposed by Heathmax Physiotherapy in a plan dated January 20, 2021, and denied February 3, 2021?
6. Is the applicant entitled to $4,780.00 ($16,532.00 less $11,752.00 approved) for the catastrophic impairment assessments in a plan dated March 5, 2020, and denied March 19, 2020?
7. 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?
8. Is the applicant entitled to interest on any overdue payment of benefits?

Analysis

Positions of the Parties

11The underlying compensation scheme set out in the Schedule focusses on the concept of “impairment.” To be entitled to benefits, the applicant must establish that “the use or operation of a motor vehicle directly causes an impairment.” Impairment means “a loss or abnormality of a psychological, physiological or anatomical structure or function.” The applicant submits that there is a large body of medical evidence to support her entitlement to a declaration that she is catastrophically impaired. That same evidence also supports her entitlement to the benefits she claims to address impairments resulting from the accident.

12The respondent makes two submissions: that the applicant has returned to her pre-accident baseline, and her current condition was not caused by the accident. On this latter point, the respondent submits that the applicant’s past medical history was such that she was on a psychological vector that led inevitably to her current withdrawal and isolation.

13Based on the parties’ submissions it is insufficient for me to find that the applicant’s current condition meets the test for catastrophic impairment. I must determine the causation issue, that is, but for the accident, would the applicant have progressed from a shy child to a normally functioning young adult, albeit a shy and somewhat socially withdrawn young adult. Notwithstanding that causation is the threshold issue, the evidence is better understood if I discuss catastrophic impairment first.

The Guides

14Over the eight hearing days, the focus was squarely on the catastrophic impairment issue with the other issues being addressed more peripherally. Section 3(2) of the Schedule sets out eight criteria for meeting the threshold for a catastrophic impairment determination. Not surprisingly, the eight criteria cover a range of impairments starting with severe physical impairments through to Category 8, mental and behavioural impairments.

15Category 8 identifies four major behavioural spheres of activity and assigns five levels of severity or classes to each area, ranging from no impact on function (Class 1) to a mental/behavioural impairment of such severity that it precludes useful functioning (Class 5). To be found to be catastrophically impaired, the applicant must establish on a balance of probabilities that she has an impairment of either Class 4 or Class 5 in one of the four spheres. I reproduce the table from the Guides with Dr. Keightley’s added gloss of moving the checkmark left or right depending on her determination of the range of severity in any given class.

16Dr. Keightley has put an X on the right of the Class 3 Moderate impairments under activities of daily living and concentration to indicate the applicant was borderline Class 3/4 and similarly on the left for adaptation indicating she was borderline Class 4/3. This is not a requirement of the Guides but is Dr. Keightley’s personal gloss on the rating system.

Area of Functioning	Class 1: No Impairment	Class 2: Mild Impairment	Class 3: Moderate Impairment	Class 4: Marked Impairment	Class 5: Extreme Impairment
	No impairment is noted	Impairment levels are compatible with most useful functioning	Impairment levels are compatible with some, but not all, useful functioning	Impairment levels significantly impede useful functioning	Impairment levels preclude useful functioning
Activities of Daily Living			X
Social Functioning				X
Concentration			X
Adaptation				X

17Dr. Eisen did not assign a rating in any of the four classes. He based his opinion firmly on causation. He had before him a number of occupational therapy reports that were generally in agreement that the applicant suffered significant impairments in at least one area, including an occupational therapy report commissioned by the respondent that found significant impairments with social functioning.

Assessment of Mental and Behavioural Impairments

18The preponderance of the medical evidence, then, indicates that, in her current state, the applicant has a Class 4 impairment in two of the spheres of activity, thus meeting the definition for a catastrophic impairment if her condition was caused by the 2016 accident. I accept that evidence and review it below.

19I heard evidence from two occupational therapists (OTs), Christina Phillips on behalf of the respondent and Melissa Paniccia on behalf of the applicant. OTs observe, they do not diagnose. Thus, where Ms. Phillips found significant impairments in social functioning, she is not qualified to assign the appropriate class designation under the Guides. Assigning a class designation is the role of a psychologist, in this case Dr. Keightley for the applicant, or a psychiatrist, in this case Dr. Eisen for the respondent. The OT reports may become part of the evidence for consideration in arriving at a diagnosis. They are then coupled with the psychological/psychiatric assessment, and it is the appropriate professional who makes the final diagnosis.

20Notwithstanding the diagnostic limitation, the OTs observed firsthand the applicant’s behaviour in day-to-day settings. Ms. Paniccia reported that the applicant was capable of performing a research task but declined to present her findings in a short PowerPoint presentation. The applicant was largely unable to function in the community, and Ms. Paniccia notes the applicant’s “significantly diminished ability to communicate with familiar and unfamiliar individuals, withdrawn and flat communication style, and low self esteem appear to be interfering markedly with her ability to interact socially, as she did prior to the accident.” While these comments were made within the context of the social functioning section of Ms. Paniccia’s report, they would be equally applicable to the applicant’s functioning in the workplace. In workplace settings, Ms. Paniccia’s report states: “In summary, [the applicant’s] physical and emotional symptoms place her at a significant disadvantage to adapt to situations that would cause stress or that would require sustained physical, cognitive, or emotional effort. She appears to have very limited ability to adapt to mildly stressful situations and everyday tasks in general.” Finally, Ms. Paniccia noted that attendance at the assessment “depleted” the applicant such that she had to take a three-hour nap when she got home.

21Ms. Phillips does not greatly disagree. The one area of disagreement was over the applicant’s ability to function in a work-like setting. Ms. Phillips noted that for two years the applicant had worked at a Tim Horton’s franchise. She also noted that the applicant had tutored another student while attending a special needs school called York Hills. When considering the applicant’s evidence that she had hated the counterwork at Tim Horton’s and was moved to the back of the store, and that the tutoring was of a much younger boy while on the school bus, Ms. Phillips acknowledged that she might reweigh her findings on the applicant’s ability to function in a work-like setting. Otherwise, as stated above, Ms. Phillips conceded that the applicant had significant difficulty in social functioning.

22Dr. Michelle Keightley assessed the applicant on October 21, 2020, four years after the accident, and issued her report on November 30, 2020, after reviewing Ms. Paniccia’s report. She found the applicant had sustained a Class 4 Marked impairment in two of the spheres, social functioning, and adaptation to work and work-like settings. She started her analysis by noting that pre-accident, while there are indications of mild anxiety, there were no formal mental health interventions in the applicant’s medical record and no accommodations at school. Following the accident, the applicant became involved in many and varied interactions with mental health professionals. She was referred to a psychiatrist, Dr, Shoshana Urson, because of increasing difficulties at school as early as June 2016, a few months post-accident. Dr. Urson referred the applicant to the ADHD clinic in and around February/March of 2018 when Dr. Allen diagnosed her with post-traumatic stress disorder, major depressive disorder and social anxiety disorder, with only PTSD linked to the accident. The timing of the initial referral to Dr. Urson is important because the applicant had a subsequent accident on July 1, 2018. The timing indicates that the trigger for the onset of psychological problems predates and is therefore unrelated to the 2018 accident. The treating professionals ascribe it to the subject accident in 2016.

23The applicant’s mental health issues and treatment continued. She failed Grade 11 after generally enjoying good marks in lower grades, and was referred to York Hills School, a special needs school. Through that intervention she completed high school through on-line courses and has enrolled in university.

24Ultimately Dr. Keightley diagnosed the applicant with “Somatic Symptom Disorder – Predominant Pain, Mild to Moderate, Major Depressive Disorder, Single Episode, Moderate, Social Anxiety Disorder and Adjustment Disorder with Anxiety.” She goes on to state that, given the absence of pre-accident psychological impairment, the applicant would not suffer the breadth and severity of symptoms without having been involved in the accident. Her exact wording is “the February 1, 2016, motor vehicle accident has materially contributed to [the applicant’s] psychological symptomology.”

25Dr. Eisen diagnosed the applicant with “Social Anxiety, and a Depressive Disorder NOS [Not Otherwise Specified]”. While he acknowledges the finding of OT Christina Phillips with respect to the applicant’s functioning, he ultimately concludes, “No psychiatric diagnosis or impairment attributable to the subject motor vehicle accident,” and declines to assign a rating in any of the four spheres set out in the Guides.

26The applicant and her mother testified about life in the family home, both before and after the accident. I did not detect any exaggeration or embellishment in their evidence, and it largely mirrored the observations of Ms. Paniccia and Ms. Phillips. The applicant leads a reclusive life. She has no friends. Her friends drifted away and started excluding her when, after the accident and increasingly, she would not go out with them for coffee or to malls and movies. She attributed her lack of enthusiasm to pain. Ms. Paniccia noted self-limitation due to pain behaviours and Dr. Keightley diagnosed her with Somatic Symptom Disorder – Predominant Pain. This behaviour stands in contrast to the young girl who helped in the kitchen, played guitar and went to the park or bike-riding with her friends, pre-accident.

27Her current reclusive lifestyle does not mean that she is incapable of any action. She did go to Paris, France, with her family to visit a much-loved aunt and her aunt’s new family. In fact, one of her wishes is that her aunt would be able to live nearby in Toronto again, as she did when the applicant was younger. I agree with the respondent’s submission that this is a major undertaking. It not only involved international travel through crowded airports, but the living arrangements in France were somewhat cramped, requiring accommodative behaviour from the applicant. I do not find this trip undermines the applicant’s position to any great extent. The respondent’s submission incorporates the concept that mental health conditions and their resulting impairments are static: either you are sick and cannot function or you are well and can function perfectly. The evidence in this case suggests that the condition is progressive and variable and, while the applicant may rouse herself from time to time, there is a cost. I note Ms. Paniccia’s remarks about the applicant being “depleted” after her assessment.

28In the absence of an expert opinion to the contrary, and in the face of overwhelming corroborative evidence from OTs, the applicant, and her mother, I accept Dr. Keightley’s evidence that the applicant suffers from a Class 4 impairment in at least one of the four spheres, social functioning. She meets the definition of catastrophic impairment. The evidence of impairment at work or in work-like settings is less clear cut. The applicant has work experience at Tim Horton’s, she successfully completed Grade 12 and 1st year university, albeit doing on-line courses, so she has some capacity for work. Despite this I am persuaded by her reported inability to respond to stressors in everyday life, that she suffers a Class 4 impairment in that sphere as well.

29The timeline also addresses the respondent’s submission that the applicant has now returned to her pre-accident baseline. The respondent noted that before the accident the applicant was doing well in school and had a close circle of friends. Post-accident she continued to do well in school and maintained the same circle of friends and even expanded it. Her academic difficulties did not manifest for several years after the accident, when she failed a grade. In the respondent’s submission, this indicates that other factors, not the accident, caused her current condition. This submission fails to account for the fact that the applicant’s first interaction with mental health professionals was very shortly post-accident, with difficulties obviously appearing earlier than that and leading to a referral to a psychiatrist. The submission also discounts Dr. Keightley’s evidence about the accident making the applicant more vulnerable to stressors, a vulnerability that developed over time overlain as it was with Somatic Symptom Disorder – Predominant Pain. Finally, there is the evidence of the applicant and her mother, neither of whom testified to a multi-year delay in the deterioration of the applicant’s interfamilial relationships.

Causation

30While neither counsel made direct submissions on the analysis to be followed to determine if the applicant’s injuries arose from the 2016 accident, it is well settled law that there are two necessary analytical steps in determining if an incident was an accident that “directly caused an impairment:” the “purpose” test and the “but for” test. (See Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA)). In this case there is no dispute that the applicant was involved in an “accident” as that term is defined and sustained injuries. The respondent, however, takes the position that the applicant’s mental health issues were not caused by the accident and, thus, fail the “but for” test.

31The but for test does not require that the accident be the only cause of the impairments the applicant is currently suffering. In Chisholm, Laskin J.A. put the “but for” concept this way, “When one thinks of direct causation one thinks of something knocking over the first in a row of blocks, after which the rest falls down without the assistance of any other act.” This issue was further explored in Sabadash v. State Farm et al., 2019 ONSC 1121 (“Sabadash”), where, at paragraph 39, the Divisional Court rejected the Director’s Delegate’s finding “that the accident in issue must be sufficient in itself to have caused the impairment: that it must be “the cause” as opposed to “a necessary cause.” Applying Sabadash, the applicant needs to show that the accident was a necessary cause of her mental/behavioural impairments. It is in this sense that I read Dr. Keigthley’s evidence despite her use of the “material contribution” wording in her report.

32I find Dr. Eisen’s opinion that the applicant’s mental health condition was not caused by the accident to be conjectural. In his report and evidence, it appears that he developed a theory and then made the facts fit the theory. He takes the possibility that childhood selective mutism will lead to adult depression and anxiety and elevates it to a certainty.

33In terms of the medical record, Dr. Eisen places great weight on the fact that the applicant’s treating mental health practitioners at Mackenzie Health and York Hills do not specifically tie the applicant’s condition to the accident. I do not accept that the failure of treating professionals to specifically refer to a possible cause negates the cause. The focus is on treatment and, is thus, forward looking. There are contemporary references to the accident. Dr. Allen at the ADHD Clinic references it in his 2018 assessment as the cause of the applicant’s PTSD. Dr. Ponrajah, the applicant’s GP, also references it in his notes.

34The main thrust of Dr. Eisen’s opinion is the linkage between childhood selective mutism and adolescent on-set depression and other mental health problems. He cites several articles in support. My difficulty with this position is that there was no diagnosis of selective mutism, no accommodations in school, and no interaction with mental health professionals until shortly after the accident. Prior to seeing Dr. Eisen, the applicant had been treated by numerous mental health professionals. They had noted reports of the applicant’s failure to speak in kindergarten and grade school, but none had linked it to the applicant’s current condition. Only Dr. Eisen does that. There is also the applicant’s submission that her mother speaks Tamil, making it likely that Tamil was the applicant’s first language. There are concerns about a selective mutism diagnosis in young children attending kindergarten whose first language is not English. I heard no specific evidence on language in the home in the applicant’s early childhood.

35While there is some support for Dr. Eisen’s position that the applicant’s pre-accident anxiety was not significantly worsened by the accident in 2016 in the report of psychologist Dr. Ralph Lubbers, prepared in and around September 2016, Dr. Lubbers does not address selective mutism, which I understand to be central to Dr. Eisen’s opinion.

36I am satisfied on a balance of probabilities that the transition from mild pre-accident anxiety documented by Dr. Keightley, with no active mental health treatment, to active and extensive mental health treatment within several months of the accident, indicates that but for the accident the applicant would not suffer her current mental and behavioural impairments. I accept Dr. Keightley’s opinion that her pre-existing anxiety may have made her vulnerable, but it was the accident that triggered the subsequent decline. It started the blocks falling.

The Benefits

Attendant Care Benefits in the amount of $1,093.44 per month from March 22, 2021

37In the evidence outlined above, I cover the reports of two OTs who both found that the applicant had significant functional difficulties. While I note that neither of these OTs was assessing the applicant on the question of entitlement to an attendant care benefit, their assessments provide further insight into the applicant’s needs.

38The assessment of the applicant’s attendant care needs was conducted by another OT, Stephanie Au. Ms. Au did not testify, but I draw no inferences from that fact as both counsels worked hard to ensure that the hearing was completed within the allotted time, and both made amendments to their witness lists to accommodate the timetable.

39Ms. Au’s assessments, however, are not without difficulty. She has issued two Assessment of Attendant Care Needs forms (“Form 1s”) arising out of one assessment. The first is dated May 7, 2021 and is in the amount of $662.40 and the second is dated July 8, 2021 and is in the amount of $1,093.44. I heard no evidence on why Ms. Au decided to add another $430 of attendant care services between May and July 2021.

40I will start with the May 7 Form 1 and compare it to the later numbers. Under the Level 1 routine personal care section, Ms. Au has allowed 30 minutes per week for shaving, 70 minutes per week for brushing hair and 30 minutes for styling and 15 minutes for cleaning and trimming toenails. This number is greatly increased from 135 minutes to 250 minutes in the second form largely by adding almost daily cosmetic assistance and increased hair-drying and styling. Feeding assistance increases from 45 minutes per day, seven days a week, to 60 minutes.

41In Part 2 personal hygiene there are entries for cleaning the bathroom after use, changing bedding, and hanging clothes. These are each assessed at 15 minutes per week in the earlier form but hanging clothes is increased to 20 minutes.

42Part 3 of Form 1 addresses complex healthcare and hygiene functions. Ms. Au allows for three entries in the May 7 Form 1: 20 minutes, twice a week for exercise, 10 minutes seven time per week for the application of “lotion, creams, pastes and powders as prescribed or required,” and 10 minutes three time per week to set up TENS equipment. The total under this heading is 140 minutes. It increases to 255 minutes in the later form because Ms. Au increased exercise from two to four days per week, and lotion application from 10 minutes per day to 15 minutes per day.

43Starting with Part 3 of the form, equally applicable to either Form 1, I heard no compelling evidence about the applicant’s need for the application of therapeutic lotions, creams etc., or the home use of a TENS machine. I did hear evidence that the applicant attended physiotherapy treatment under her father’s employment healthcare benefits and that exercises were recommended, but in my view, 30 minutes twice a week is sufficient to steer the applicant into an exercise routine. Thus, under Part 3, I allow 60 minutes per week.

44There was general agreement in the evidence that the applicant needs assistance with laundry, hanging clothes and making the bed. I allow the amount set out in the May 7 Form 1, that is 45 minutes per week.

45I disallow the entries under Part 1. The evidence was that the applicant had dyed hair and manicured nails when she attended the assessments. She paid attention to her appearance and was capable of attending to it without assistance.

46In total then, I allow 45 minutes under Part 2 for a total of $36 per month and 60 minutes under Part 3 for a total of $191.57 per month. The applicant is entitled to $227.57 per month. Since an attendant care benefit is an incurred benefit, the applicant is entitled to $227.57 per month from March 21, 2021, on proof that she has incurred the benefit.

$11,316.30 for Case Management Services

47The applicant claims $11,316.30 for case management services. Given that I have found her to be catastrophically impaired, she can claim a benefit for case management services. Indeed, on the evidence of her need for prompting, it appears that case management services may be beneficial. My problem is that I heard no evidence in support of the case management services proposed in the OCF-18 in this case. Even on a superficial review, there are items of concern, notably “Provider travel time” in the amount of $1,181.40 and an unspecified and vague “documentation support activity” in the same amount. I disallow this claim without prejudice to the applicant’s right to seek further case management services as her catastrophic treatment needs become clearer.

$4,828.06 for Occupational Therapy Services

48As with the OCF-18 for case management services, I heard little evidence of this claim for $4,828.06 for OT services. It was mentioned in Ms. Phillips’ evidence where she notes that the OCF-18 is signed by Dr. Curcio, a chiropractor, and is not supported by an OT assessment. I have certainly noted a great deal of OT evidence above, but none has been specifically directed at a treatment plan. In the absence of direct evidence of the benefits to be expected and recognizing that much of the evidence in this case suggested that the applicant would benefit from OT services, I deny this specific treatment plan without prejudice to the applicant’s right to seek OT services in the future.

$2,347.00 for an Attendant Care Needs Assessment

49I have little hesitation in approving this OCF-18 in the amount of $2,100 plus tax. Above, I have reviewed the assessment that resulted from it and found the applicant entitled to a monthly attendant care benefit, albeit not in the amount the applicant sought. Given the extensive evidence about the applicant’s mental health condition it was reasonable and necessary to have her attendant care needs assessed.

$4,780.00 ($16,532.00 less $11,752.00 approved) for Catastrophic Impairment Assessments

50There are two charges at issue under this head: $2,000 for a cognitive screen conducted by Dr. Keightley and $2,000 for a document review. I find that the cognitive screen is reasonable and necessary. I find that the document review is not.

51As noted above Dr. Keightley is a psychologist and a neuropsychologist. To paraphrase her extensive evidence, in assessing the applicant she had two issues to resolve. The first was to explore if the applicant had suffered any brain damage in the accident, calling on Dr. Keightley’s neuropsychological expertise, and the second was to explore the applicant’s psychological condition. Throughout her evidence Dr. Keightley referred to having ruled out brain injury in coming to her psychological diagnosis of the applicant’s impairments. Without the cognitive assessment, separate from the psychological assessment, Dr. Keightley could not have properly diagnosed the applicant under Criterion 8. The assessment fee for that assessment is not only reasonable but was very necessary to develop a complete picture of the applicant’s condition.

52With respect to the second charge for $2,000 for a “Centralized Comprehensive File Review – all Criteria,” this Tribunal has continually held that this amount is included in the $2,000 fee set out in s. 25(5) of the Schedule. A document review is not an assessment, per se. It is an assessor obligation, as part of the assessment, to become familiar with the claimant’s medical condition in order to render an informed opinion. It is not a stand-alone item.

53It is worthy of note, that the $2,000 file review charge is not being charged by any individual assessor. Rather, it is a charge levied by the assessment company, Omega, that is levying this charge to cover its overhead. It falls beyond the bounds of s. 25 and the respondent is not obliged to pay for it.

Interest

54I have found that the applicant is entitled to one treatment plan in the amount of $2,100 and one in the amount of $2,000 plus applicable taxes in accordance with the Schedule. She is also entitled to payment of incurred attendant care benefit expenses in accordance with my finding. She is entitled to interest on these amounts pursuant to s. 51 of the Schedule.

Award

55The applicant seeks an award under s. 10 of O. Reg 664 on the grounds that the respondent unreasonably delayed or withheld payment. I can find nothing in the respondent’s behaviour to suggest that it acted unreasonably. It maintained its position throughout its dealings with the applicant, a position that was based on the medical opinions available to it from properly qualified medical professionals. It is not grounds for an award that the Tribunal ultimately rejected a reasonably held position.

Order

56Based on the above discussion, I find that the applicant is catastrophically impaired under Criterion 8 as she has suffered Class 4 – Marked impairments in the spheres of social functioning and adaptation.

57I order the respondent to pay to the applicant:

i. $227.57 per month in attendant care benefits from March 21, 2021 to date on proof that attendant care services have been incurred,

ii. $2,100 plus applicable taxes for an attendant care assessment,

iii. $2,000 plus applicable taxes for a cognitive screen, and

iv. Interest on the above amounts in accordance with the Schedule.

58The balance of the applicant’s claim is dismissed.