S. P. v. Economical Insurance Company, 2023 CanLII 60267

Licence Appeal Tribunal File Number: 21-002254/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:

[S. P.]

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR: Tyler Moore

APPEARANCES:

For the Applicant: [S. P.], Applicant Joseph Obagi, Counsel

For the Respondent: Natasha Richards, AB Specialist Martin Forget, Counsel Suhasha Hewagama, Co-Counsel

Observer: Michael Switzer, Counsel

Court Reporter: Vincent Tran-Luong

HEARD: by Videoconference: May 1-5, 2023

OVERVIEW

1[S. P.], the applicant, was involved in an automobile accident on May 30, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant, who has cerebral palsy, was the seat-belted front passenger of a vehicle driven by her mother that was hit on the front headlight area by a vehicle crossing traffic. The side airbags deployed, and police and ambulance attended the scene. According to the ambulance report and hospital emergency notes, the applicant did not lose consciousness, she was in no obvious distress, she was alert and oriented at the scene, and she had a Glasgow Coma Scale (“GCS”) rating of 15/15. A GCS score of 15/15 is indicative of an individual being fully awake, responsive, and having no problems within thinking ability or memory. The applicant was transported to hospital by ambulance for chest wall pain. She was assessed and release a few hours later with a diagnosis of “minor MVC”.

3The applicant submitted that as a result of the accident she continues to suffer from back pain, post-traumatic stress disorder (“PTSD”), depression, somatic symptom disorder, a mild traumatic brain injury/concussion, and reliance on a walker for ambulation.

PROCEDURAL ISSUEs

4The case conference report and order (“CCRO”) issued by the Tribunal on July 23, 2021 set down a 20-day videoconference hearing for this matter to be heard in conjunction with file 21-002437/AABS, the applicant’s mother. The CCRO, however, specified at paragraph 15 that the orders made were subject to the hearing adjudicator’s discretion. At the outset of the hearing, and in accordance with section 25.0.1 of the SPPA, a procedural order was made to separate the files so that they be heard consecutively and not concurrently. This matter was set down for a 5-day hearing. The hearing timelines were established with the Tribunal’s mandate to ensure fair and proportionate hearings relative to the issues in dispute in mind.

5The applicant’s representative submitted that the applicant’s mother had serious mental health and physical issues that would render her unable to testify at both hearings. She was limited to testifying for only one to two hours at a time, and that is why she was the only witness to be testifying during the first five days of the scheduled 20-day hearing.

6In actuality, the applicant’s mother was able to conclude her testimony over the course of two days. She was accommodated with breaks as needed, and she was able to fully participate in examination in chief, cross-examination, and re-direct. I also accommodated her by permitting her to only testify once with respect to both her case and her daughter’s case. The applicant’s mother’s representative declined submitting a formal accommodation request to the Tribunal.

7The applicant submitted that hearing the cases one after the other would give the respondent a strategic advantage and disadvantage the applicant, and that I should recuse myself from the hearing because I both was biased and denying the applicant procedural fairness. The applicant’s mother submitted that her testimony needed to be accommodated, and that she had prepared for the hearing based on hearing the two cases together. She also submitted that I was inept as an adjudicator if I could not separate the details of the two hearings to be heard together, and that my employment background as an IE assessor rendered me biased. The applicant submitted that she would not have a fair hearing as a result.

8The respondent agreed that the two matters should be heard separately. The claims were separate, as were the experts and treating physicians. The respondent submitted that there was significant risk of being able to dissect the issues between the two cases, should they be heard together. With respect to the allegation of bias, the respondent submitted that there was no bias, and no appearance of bias. In addition, the respondent submitted that the applicant would not be denied procedural fairness because there had not been an agreed upon schedule of witnesses between the parties prior to the hearing, despite requests for one by the respondent.

9I found that there was no mention in the CCRO about needing to schedule a 20-day hearing to accommodate the applicants, or that the applicants had followed the Tribunals Ontario accommodation request process.

10As for my recusal based on bias, there is a presumption of adjudicative impartiality and, therefore, the party seeking an adjudicator’s recusal on the basis of bias or a reasonable apprehension of bias has the onus to establish it (see Wewaykum Indian Band v. Canada, 2003 SCC 45 at para. 59). The test for reasonable apprehension of bias is a high one and well-established: “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that the adjudicator, whether consciously or unconsciously, would not decide fairly? (see: Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC). I also acknowledge that everyone comes into a hearing with previous life and work experience. The last IE assessment I conducted, however, was over 10 years ago. I did not see that as an issue. I did not know, and have never worked with, any of the potential witnesses listed on the parties’ witness lists. Having considered the question, I did not find any bias or reasonable apprehension of bias, and as a result I did not recuse myself.

11The respondent then sought orders excluding all section 25 CAT assessment reports listed at TABS 1 to 11 of the applicant’s document brief, and excluding the applicant’s CAT assessors from testifying: Dr. Lisa Becker, Dr. Aaron Izenberg, Dr. Eugene Chang, Dr. Henry Rosenblat, and Shahla Kara.

12The respondent submitted that because CAT was not an issue in dispute, the CAT assessment reports were not relevant. Relevance is determined by the subject matter related to an issue in dispute, and the CAT reports were not related to an issue in dispute. The respondent submitted that the applicant’s suggestion that the evidence was relevant to causation and provided diagnoses was an afterthought. According to the respondent, CAT reports are not prepared to address the issue of causation. The CAT reports were secured because the applicant wanted to add CAT as an issue in dispute. The applicant had other reports to rely on that addressed the issue of causation. By allowing the reports for consideration, the respondent submitted that it would be prejudiced because it had not had its own assessors review or comment on them.

13In response, the applicant submitted that the respondent had had the CAT reports since September 2022. The reports were also included in the applicant’s document brief that was shared in October 2022. It was not until the start of the hearing, however, that the respondent moved to strike the documents out of the applicant’s brief and the assessors off the applicant’s witness list. The applicant submitted that the fact that there was evidence in the CAT reports suggested that they should not be excluded. The reports contained opinions and addressed causality and function by experts qualified to make diagnoses that have nothing to do with CAT impairment ratings.

14I dismissed the respondent’s motion and allowed the CAT reports for consideration and the assessors to testify. The only caveat was that the assessors could not speak to the issue of CAT or impairment ratings during their testimony. I found that the assessors’ opinions should be based on a medical opinion, and they assessed the applicant. That makes them relevant.

15During the hearing, the applicant submitted that she should be given the opportunity to cross examine Ms. Janelle Mackinnon, occupational therapist, if the respondent was going to rely on her reports. Failing that, Ms. Mackinnon’s reports should not be admitted for consideration. The applicant submitted that Ms. Mackinnon conducted one assessment on October 16, 2020 and wrote three subsequent reports based on that assessment. In two of the reports, she found that the applicant’s level of mobility dependence was higher after the accident than before, but her most recent report dated February 21, 2021 indicated that it was the same level of mobility dependence before and after the accident. The inconsistency had not been resolved.

16The respondent submitted that there was no basis to expunge Ms. Mackinnon’s reports. The applicant had the reports in her possession for months before the hearing and knew the respondent would be relying on them. The respondent submitted that if the applicant had wanted to address any inconsistencies, she could have called or summonsed Ms. Mackinnon as a witness. She chose not to. Instead, the applicant called the manager of [the company], Ms. Laura Florentino-Fadzio, as a witness. Ms. Florentino-Fadzio confirmed that Ms. Mackinnon was the one who changed her opinion in the reports without any direction to do so. The assessment company had nothing to do with the changes that were made. Ms. Mackinnon directed the assessment company to make that change. The respondent submitted that the reports should be admitted and go to weight.

17I ordered that Ms. Mackinnon’s reports could be admitted for consideration, that she would not be ordered to be present for cross-examination, and that the applicant could argue the weight that should be given to the reports. I agree that the applicant could have issued a summons to have Ms. Mackinnon testify.

ISSUES

18The issues in dispute are:

i. Is the applicant entitled to an attendant care benefit in the amount of $6,000.00 per month from March 17, 2021 to date and ongoing?

ii. Is the applicant entitled to $5,403.00 for a four wheeled scooter, proposed by Krystin Elson in a plan dated February 18, 2020?

iii. Is the applicant entitled to $874.61 ($969.61 less $95.00 approved) for a power lift chair, proposed in a plan dated December 24, 2019?

iv. Is the applicant entitled to $1,000,000.00 for home modifications and home devices, proposed by Puddicombe Access Solutions Inc., in a plan dated July 13, 2020?

v. Is the applicant entitled to $36,200.00 for 12 months of rent, proposed by Lindsey Dennis, occupational therapist, in a treatment plan/OCF-18 (“plan”) dated September 30, 2020?

vi. Is the applicant entitled to $2,518.96 for psychological treatment, proposed by Ricci Psychology in a plan dated June 28, 2021?

vii. Is the applicant entitled to $6,484.20 for occupational therapy services, proposed by Lindsey Dennis in a plan dated April 20, 2021?

viii. Is the applicant entitled to $6,108.06 ($6,906.96 less $798.90 approved) for occupational therapy services, proposed by Lindsey Dennis in a plan dated April 20, 2021?

ix. Is the applicant entitled to $4,230.00 for social work treatment, proposed by Krystin Elson of Invicta Works in a plan dated December 23, 2021?

x. Is the applicant entitled to $2,830.41 for aquatherapy, proposed by Lyndsey Dennis in a plan dated January 10, 2022?

xi. Is the applicant entitled to $2,200.00 for an occupational therapy assessment, proposed by Lyndsey Dennis in a plan dated May 9, 2022?

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

xiii. 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?

RESULT

19The applicant is not entitled to $6,000.00 of attendant care benefits from March 17, 2021.

20The applicant is not entitled to $5,403.00 for a four wheeled scooter or $874.61 for a power lift chair.

21The applicant is not entitled to $1,000,000.00 for home modifications or $36,200.00 for 12 months of rent.

22The applicant is entitled to $2,518.96 for psychological treatment dated June 28, 2021.

23The applicant is not entitled to $6,484.20 or $6,108.90 for occupational therapy services that were both proposed on April 20, 2021.

24The applicant is not entitled to $4,230.00 for social work treatment proposed on December 23, 2021.

25The applicant is entitled to $2,830.00 for supervised aquatherapy proposed on January 10, 2022.

26The applicant is not entitled to $2,200.00 for an occupational therapy assessment as proposed on May 9, 2022.

27The applicant is entitled to interest related to the reasonable and necessary plans in the amount of $2,518.96 of psychological treatment and $2,830.00 for supervised aquatherapy.

28The applicant is not entitled to an award.

ANALYSIS

Did the accident cause the applicant’s impairments?

29I find on a balance of probabilities that the May 2019 car accident was a necessary cause of some, but not all, of the impairments the applicant suffers from.

30It is well settled that the test for causation is the “but-for” test set out in Sabadash v. State Farm et al., 2019 ONSC 1121, or in other words, whether the applicant would have sustained her impairments but for the accident that occurred in May 2019. While the accident does not have to be the sole or only cause of the applicant’s impairments, the accident must at least be a “necessary cause” of her impairments.

31To address causation, I have compared the applicant’s pre- and post-accident level of function, symptoms, and diagnoses. I have also assessed the witness reliability given the fact that the applicant’s pre-accident functional self-report has been weighed heavily when addressing pre- versus post-accident function.

32Unfortunately, the applicant did not testify at the hearing, so I have only to rely on the reports and testimony of her assessors and care providers.

33In March 2019, a few months before the accident, Tammy Knight, registered nurse, assessed the applicant where she lived at [the Residence] and found that the applicant:

i. Was easily angered, her emotions were unstable, and she turned the anger on herself in the form of self-harm;

ii. Needed a supervised home environment to assist with daily activities;

iii. Had poor insight and lacked judgement for safety;

iv. Had short-term memory loss, poor comprehension, and word finding difficulties;

v. Had no useful function of her right arm or leg as well as right foot drag;

vi. Had a four-wheeled scooter but did not use it;

vii. Needed cueing for meals and medications;

viii. Needed assistance with dressing, oral care, showering, and grooming;

ix. Was incontinent for urine daily and occasionally stool;

x. Needed cueing and help changing incontinence pads;

xi. Needed supervision climbing stairs;

xii. Had not been out of the house in 3 months;

xiii. Needed daily support worker for grooming, dressing, showering, oral care, and incontinence care.

34After the accident, Ms. Kayla Ferlatte, the applicant’s personal support worker and only witness who was familiar with both her pre- and post-accident function, testified that the applicant had “ups and downs”, but her mood was “darker” after the accident. She also needed more cueing and got upset easier after the accident.

35While I have considered Ms. Ferlatte’s testimony as the only support worker that was involved in the applicant’s care before and after the accident, there were inconsistencies between her testimony and the report of Ms. Knight. I am also mindful that Ms. Ferlatte was not with the applicant for more than one hour each day on most mornings, and she has never observed the applicant’s function throughout the day.

36There are also a number of inconsistencies in the evidence the applicant has encouraged me to rely on. I find that several assumptions have been made by her assessors based on the applicant’s unreliable subjective self-report in the absence of reliable corroboration or objective findings.

37The applicant’s post-accident assessors relied on her self-report, with input from her post-accident support workers and social worker. I find that the applicant’s self-report was generally inaccurate and not consistent with the March 2019 report of Ms. Knight. For example, Dr. Henry Rosenblat, psychiatrist, reported in August 2022 that the applicant advised him that before the accident she had no difficulties with standing/sitting/walking, dressing, brushing her teeth, her sleep was restorative, she was not irritable, she could concentrate, she had infrequent incontinence, she was involved with household chores, and she worked with a veterinarian until 2018. The applicant also noted that she was physically and emotionally healthy right before the accident.

38The applicant reported to Dr. Rosenblat and her other assessors that she hit her head really hard on the front windshield and lost consciousness when the accident occurred. That is not consistent with the ambulance call records or hospital emergency reports.

39Dr. Rosenblat testified that he had a lot of difficulty differentiating the applicant’s pre-accident impairments from those after the accident. Though he testified that the applicant was a poor historian, he made assumptions based on her self-report. Specifically, he made a finding that there appeared to be a clear deterioration in her level of functioning after the accident as she was able to work with a veterinarian before.

40The same applied to the applicant’s level of depression before the accident. Dr. Rosenblat testified that it was difficult to be certain with regards to her level of depression leading up to the accident, and the applicant could not recall her level of depression at that time. But, because he had not reviewed any notes related to depression for some time prior to the accident, he assumed that her depression significantly worsened after the accident. Dr. Rosenblat made no mention of, and did not consider, the fact that the applicant was seeking psychological treatment from Dr. Ricci for depression and grief right before the car accident. That claim was related to the accidental death of her stepfather in December 2018.

41In assessing the reliability of the evidence presented, I look to Dr. Rosenblat’s testimony that the applicant was working with a veterinarian on a farm in 2018. The applicant’s representative suggested that this was a fantastical story and a one-off that she only told to Dr. Rosenblat. Dr. Chang, physiatrist, and Ms. Kara, occupational therapist, however, noted the exact same story in their reports. They submitted that the applicant advised them that she worked on a farm until 2017 but stopped because she was having asthma attacks and could not get insurance. This was obviously not a one-off, and Dr. Rosenblat relied on that premise to support his finding that the applicant had a marked impairment in the domain of adaptation.

42Dr. Chang, and Ms. Kara also took the applicant’s self-report at face value and considered her farm work story when assessing her ability to work pre-accident. Based on the inconsistencies and reliance on the applicant’s unreliable self-report, I have given limited weight to Dr. Rosenblat, Dr. Chang, and Ms. Kara’s opinions with respect to causation.

43I have also given limited weight to Dr. Aaron Izenberg’s August 2022 CAT neurological report and his testimony. Dr. Izenberg testified that his understanding of the accident came from speaking with the applicant, her mother, and one of the applicant’s personal support workers, Ms. Brunet. Again, the applicant advised him that she lost consciousness and was disoriented after the accident. Dr. Izenberg testified that he was not provided with the ambulance call report to review. I prefer the ambulance call report and emergency records for their accuracy.

44Dr. Izenberg relied on the subjective collateral report of the applicant’s mother and of the support worker present during his assessment, both of whom have interest in the outcome of the hearing. I find that Ms. Brunet, for example, is not impartial. She has taken on an advocacy role for the applicant and has a financial interest in the hearing outcome. She is owed $10,000.00 for the supportive care she has provided the applicant and her mother to date and has an agreement that she will be paid with interest when the applicant has funds available.

45In terms of accident-related diagnoses, Dr. Izenberg diagnosed a mild traumatic brain injury or concussion. He testified that the applicant advised him that she was suffering from daily headaches after the accident that were aggravated by light. He diagnosed migraine headaches as a new and pervasive issue based on that self-report, which I have found to be unreliable. Dr. Izenberg testified that he was unaware that Ms. Knight’s March 2019 CCAC report indicated that the applicant was experiencing those same symptoms before the accident. He also testified that it was much less likely for someone to hit their head against the windshield when wearing a seatbelt and the side airbags deployed, which is what occurred.

46I prefer the neurological report of Dr. Mendis to that of Dr. Izenberg. Dr. Mendis testified that symptoms of mild traumatic brain injury or concussion manifest within the first few days of an injury. Dr. Mendis noted that in the applicant’s case the issue of concussion is difficult because she did not meet the standard criteria. Normally, he would look for evidence of loss of consciousness, altered level of awareness, reduced GCS score, or amnesia, but there was none of that according to the ambulance call report and hospital emergency records.

47Dr. Mendis diagnosed the applicant with a probable concussion, giving her the benefit of the doubt. Again though, this was based on the applicant’s self-report. As I have found the applicant’s self-report was unreliable, I find Dr. Mendis’ testimony that the applicant sustained whiplash associated headaches that would persist beyond the resolution of concussion-like symptoms and could be present a few years later to be a more likely scenario in this case. Dr. Mendis testified that only a very small percentage of individuals would be left with residual concussion symptoms beyond a year after injury. He believed the applicant actually presented with headaches related to whiplash as a result of the accident.

48I accept the physiatry and neurological opinions of Dr. Abdul Khan and Dr. Mendis, that but for the accident the applicant sustained whiplash associated disorder (WAD II), whiplash associated headaches, a sprain/strain to the lumbar spine, and an adjustment disorder.

Is the applicant entitled to an attendant care benefit in the amount of $6,000.00 per month from March 17, 2021 to date and ongoing?

49I find that the applicant is not entitled to attendant care benefits in the amount of $6,000.00 per month from March 17, 2021 to date and ongoing.

50Section 19 of the Schedule provides that attendant care benefits shall pay for all reasonable and necessary expenses incurred by an insured person for the services of an attendant or aide. The insured person bears the onus of establishing entitlement to the benefits on a balance of probabilities. The 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.

51On August 27, 2019, the respondent notified the applicant that her optional benefits provided a maximum of $6000.00 of attendant care benefits per month, even though the initial Form 1 after the accident proposed $14,251.45 of attendant care per month. The respondent did not require any IE assessments at that time.

52Ms. Mackinnon assessed the applicant in response to the proposed attendant care and reported that the applicant had already been receiving assistance from a personal support worker and her mother for activities of daily living before the accident. Ms. Mackinnon was of the opinion that the applicant demonstrated the same level of dependency with her personal care compared to before the accident.

53The applicant submitted that the Form 1 for attendant care in dispute proposes supervisory care for the applicant to help her deal with the “darkness” that she feels and because of how fragile with suicidal ideations and the potential for self-harm.

54The applicant submitted that Ms. Mackinnon’s reports are inconsistent and should be given limited weight. She initially found that the applicant demonstrated a greater level of mobility dependency after the accident, but that was later changed from “greater” to the “same” level of dependency with no explanation for the change. The applicant submitted that Ms. Mackinnon was not called as a witness to clarify the inconsistency and an adverse inference should be drawn. The applicant also suggested that the assessment company, Dynamic Solutions, may have altered Ms. Mackinnon’s report. Based on Ms. Forentino-Fadzio’s testimony, however, I disagree.

55I find that the applicant had Ms. Mackinnon’s reports well in advance of the hearing and chose not to call her as a witness. Ms. Florentino-Fadzio, the manager of [the company], testified that the opinions contained in Ms. Mackinnon’s reports were solely her own, and that Ms. Mackinnon was consulted for approval before any of her reports were released.

56Unfortunately, Ms. Dennis, who proposed many of the treatment plans in dispute was not called as a witness either. With that in mind, I must rely on the evidence before me and the testimony of the witnesses that were called.

57The respondent relied on the reports from Ms. Mackinnon, Dr. Khan, and Dr. Mendis in denying the proposed attendant care.

58Dr. Khan reported in February 2021 that according to the applicant, a personal support worker assisted her with all self-care activities on a daily prior to the accident. That continued after the accident because of the applicant’s diagnosis of cerebral palsy. Dr. Khan opined that from a purely physical perspective, the applicant did not require assistance to complete any self-care activities as a direct result of her accident-related sprain/strain injuries. Dr. Khan noted that the applicant would require ongoing assistance with self-care in the future, but not as a result of injuries related to the accident.

59Dr. Mendis reported that from a physical neurological perspective, the applicant did not suffer from accident-related neurological injuries requiring such assistance.

60I am persuaded by the assessment reports and testimony of Ms. Mackinnon, Dr. Khan, and Dr. Mendis in finding that the applicant’s sprain/strain type injuries that were a direct result of the accident did not require ongoing assistance with self-care. I am also persuaded by the fact that the applicant required attendant care for personal care and grooming before the accident.

61I find that the applicant has failed to establish accident-related causation that would necessitate the constant attendant care as proposed by Ms. Dennis. This is not to mention the fact that the applicant failed to demonstrate or provide evidence as to the details of any incurred attendant care after March 17, 2021.

Is the applicant entitled to $5,403.00 for a four-wheeled scooter, proposed by Krystin Elson, occupational therapist, in a plan dated February 18, 2020?

62I find that the applicant is not entitled to $5,403.00 for a motorized scooter. Her accident-related injuries do not support that it is reasonable and necessary.

63The applicant relies on Ms. Elson’s position that the proposed plan was necessary to increase the applicant’s ability to engage in her surroundings safely while compensating for her reduced mobility to address activity participation, mood, and physical limitations.

64The respondent relies on Dr. Khan’s February 2021 report which found that the proposed four-wheeled scooter was not reasonable or necessary because there was no accident-related diagnosis, impairment, or active structural pathology for which it would be considered reasonable or necessary. The applicant’s sprains/strains would not warrant the necessity of such an assistive device.

65I have also considered the surveillance footage of the applicant between 2020 and 2022. While I recognize that surveillance footage is but a snapshot in time and not necessarily representative of day-to-day function, the footage showed that the applicant could walk without a walker. In addition, Ms. Mackinnon noted in 2021 that the applicant was able to walk through the hotel she was living in, go down the elevator, retrieve something from her mother, and then return back up to her hotel room without any mobility aids or assistance.

66For these reasons, I am not satisfied that the proposed assistive device is reasonable or necessary.

Is the applicant entitled to $874.61 ($969.61 less $95.00 approved) for a power lift chair, proposed in a plan dated December 24, 2019?

67I find that the applicant is not entitled to $874.61 for a power lift chair as it is not reasonable and necessary.

68The applicant was observed to be able to move from a sitting to standing and standing to sitting position without any assistance well after the proposal for a power lift chair was submitted. The was documented by Ms. Mackinnon, Dr. Mendis, Dr. Izenberg, and Dr. Khan.

69The applicant failed to otherwise establish that a power lift chair is reasonable and necessary as a direct result of any accident-related injuries.

Is the applicant entitled to $6,484.40 for occupational therapy services, proposed by Lindsey Dennis in a plan dated April 20, 2021?

70I find that the proposed $6,484.40 for occupational therapy services is not reasonable and necessary.

71Ms. Dennis proposed 12 treatment sessions with an occupational therapist and/or occupational therapy assistant, as per Part 9 of the plan, to develop, learn and practice strategies related to physical, cognitive, and emotional health, including balance activities, visual processing, anxiety/stress management and re-engagement in community activity. Ms. Dennis noted that the applicant needed support for mental health and activation to engage in pre-accident daily activities and learning coping skills to deal with life stressors such as precarious housing and changes to health status.

72The respondent submitted that Ms. Mackinnon previously supported the approval of 8 similar sessions to optimize participation in activities of daily living and to strengthen the strategies that the applicant had learned so far. The applicant completed those sessions.

73Ms. Mackinnon did note a mild decrease in the applicant’s lumbar spine mobility affecting positional tolerances and that chronic pain affected her global endurance for daily activities. She found, however, that the applicant was functional to complete her basic activities of daily living considering only the accident-related injuries. Ms. Mackinnon concluded that further assistive devices or occupational therapy interventions were not reasonable and necessary at this stage of the applicant’s post-accident status. From a physical perspective, the applicant did not appear to require assistance to complete self-care activities as a direct result of the sprain/strain injuries sustained in the accident.

74I agree with Ms. Mackinnon, that a key consideration in assessing whether or not the plan is reasonable and necessary relates to narrowing in only on the applicant’s accident-related injuries. Ms. Mackinnon clarified that any assistance the applicant required with self-care tasks would not be related to the sprain/strain injuries that resulted from the accident.

75Ms. Dennis did not elaborate on any outcome measures demonstrating the beneficial impact of previous occupational therapy. I have weighed Ms. Dennis’ limited substantiation for the proposed treatment, Ms. Mackinnon’s assessment findings, the fact that the proposed treatment was almost two years after the accident, and the fact that similar treatment had previously been completed by the applicant without objective outcome measures that would lend support for the proposed treatment.

76While I accept that the applicant may have residual symptoms from her accident-related injuries, I am not satisfied that she requires ongoing occupational therapy treatment in addition to psychological counseling and physical strengthening with a kinesiologist.

Is the applicant entitled to $6,108.06 ($6,906.96 less $798.90 approved) for occupational therapy services, proposed by Lindsey Dennis in a plan dated April 20, 2021?

77I find that the applicant is not entitled to the remaining $6,108.06 for assistive devices as proposed by Ms. Dennis on April 20, 2021.

78The respondent previously approved $798.90 for a bathing suit, pool membership, and documentation as part of the proposed plan. The remainder of the plan called for a body wedge pillow, Apple watch with extra cellular cost for falls detection and heart rate monitor, Tempur-pedic mattress, pillow, 3 months of therapeutic horseback riding, a helmet/riding pants/boots, and an app for the applicant’s iPad to help with sleep and anxiety. Ms. Dennis indicated that the goal of the plan was to reduce pain, promote optimal body positioning, and to provide activities of interest to reduce stress/anxiety.

79The applicant did not provide any additional evidence or testimony with regards to why the proposed assistive devices are reasonable and necessary given the accident-related injuries alone. The onus is on her to establish that the proposed plan is reasonable and necessary.

80The respondent submitted that according to Ms. Mackinnon, additional assistive devices were not reasonable and necessary at this stage of the applicant’s recovery based specifically on her accident-related injuries.

81I am persuaded by Ms. Mackinnon’s recommendation given the time since the accident and lack of supportive evidence as to why the proposed assistive devices are reasonable and necessary.

Is the applicant entitled to $1,000,000.00 for home modifications and home devices, proposed by Puddicombe Access Solutions Inc., in a plan dated July 13, 2020?

82I find that the applicant is not entitled to $1,000,000.00 for home modifications proposed on July 13, 2020.

83Mr. Scott Puddicombe’s home modification proposal was based on a description by the applicant’s mother as to how the applicant used the various areas of [the Residence] prior to the accident, and input from Ms. Dennis as far as the applicant’s level of functional ability. Mr. Puddicombe prepared his proposal based on the understanding that the applicant sustained numerous injuries as a result of the accident that brought about her reliance on a walker for mobility.

84The applicant submitted that if her home at the time of the accident required modification, then the costs required to modify that home have to be determined. If the applicant were to choose to purchase another accessible home, then that would be up to her. Mr. Puddicombe considered modifying [the Residence] and building a new accessible home in his proposal. For reasons already outlined, I do not find that the applicant’s accident-related injuries resulted in a continuous reliance on a walker. As noted, Mr. Puddicombe based his proposal on that assumption.

85The issue is that multiple assessors who assessed the applicant at [the Residence] following the accident observed that she was not reliant on a walker inside the home. Surveillance footage also demonstrated that she was able to go out into the community and engage without a walker between 2020 and 2022.

86The respondent relies on Ms. Mackinnon’s February 2021 IE assessment of the applicant at [the Residence] to address Mr. Puddicombe’s proposed home modifications. She found that they were not reasonable and necessary based on the applicant’s accident-related injuries.

87Mr. Daniel Charette, project and construction manager at BuildAble, reported around the same time that no estimates for housing modifications could be provided because Ms. Mackinnon’s IE assessment found that the proposed modifications were not reasonable and necessary as a direct result of the applicant’s accident-related injuries.

88Dr. Khan noted in February 2021 that the proposed home modifications and home devices were not reasonable or necessary because there was no accident-related physical diagnosis, impairment, or active structural pathology for which the proposed modifications for the purpose of accessibility would be considered reasonable or necessary. He commented that while home accommodations may be considered for the applicant’s diagnosis of cerebral palsy, it is not a diagnosis that related to the accident.

89I prefer the reports of Dr. Khan and Ms. Mackinnon which conclude that the proposed home modifications are not reasonable and necessary based on the applicant’s level of observed function and consideration only for her accident-related injuries. I also find that Mr. Puddicombe made recommendations under the false assumption that the applicant was completely reliant on a walker.

Is the applicant entitled to $36,200.00 for 12 months of rent, proposed by Lindsey Dennis in a plan dated September 30, 2020?

90I find that the plan proposing 12 months of rent is not reasonable or necessary.

91Ms. Dennis indicated that the proposed plan was for rent while the respondent considered the home modification report submitted by Puddicombe Access Solutions. She submitted that the applicant had no funding to support relocation, and while the respondent was considering the proposed home modifications, the applicant was left living in a condemned building that was unsafe and infested with rats. Ms. Dennis noted that the rat infestation was due to the fact that the applicant’s mother was unable to maintain the home.

92The respondent submitted that the proposed rent while awaiting IE reports was not reasonable or necessary as a result of the accident. The respondent was of the opinion that the applicant’s pre-existing conditions, including developmental delay, cerebral palsy, and depression were the cause, should home modifications be required. Additionally, the applicant failed to provide any rental agreement, description of the property, or rental quote. She also failed to submit any information regarding her pre-accident accommodation expenses. The respondent requested that information as per section 33 of the Schedule, but it was not provided.

93As I have found already found that the proposed home modifications are not reasonable and necessary, I also find that the proposed 12 months of rent is not reasonable and necessary based on the applicant’s accident-related injuries alone.

Is the applicant entitled to $2,518.96 for psychological treatment, proposed by Ricci Psychology in a plan dated June 28, 2021?

94I find that the applicant is entitled to $2,518.96 for psychological treatment that was proposed on June 28, 2021.

95In denying the proposed plan, the respondent relied on the clinical notes and records of Dr. Bastianon. His notes confirm pre-existing bipolar disorder, depression/anxiety, and PTSD. The respondent submitted that the applicant was diagnosed with psychological impairment stemming from the accidental death of her stepfather in December 2018, but there were no psychological symptoms reported as a result of the May 2019 accident.

96The respondent also relied on the psychological report from Dr. Chris Cooper dated December 16, 2021. Dr. Cooper found that the applicant’s condition was chronic and not predominantly accident related. Her chronic conditions included developmental delay, PTSD, major depressive disorder, and borderline personality disorder. The applicant had a history of sexual assault, attempted suicide, and suicidal ideation. Dr. Cooper noted that the applicant’s pre-accident psychiatric prognosis was poor, and that change was unlikely. He found that the proposed plan was not reasonable and necessary given that a psychological diagnosis/impairment was not confirmed specifically related to the car accident.

97Dr. Cooper, however, only conducted one psychometric test and his interview and assessment was limited to less than an hour. He discontinued testing when the applicant was not able to read his test items or comprehend them sufficiently to respond. For these reasons, I have put limited weight on his report. I also agree with the applicant that Dr. Cooper relied heavily on the psychiatric report of Dr. Chun dated November 3, 2013 in making his findings. Dr. Cooper provided little in the way of substantiation for his own opinions.

98I prefer the testimony of Ms. Telford and Dr. Rosenblat. Ms. Telford, the applicant’s treating psychotherapist, did not begin treating the applicant for the adjustment disorder and depression she was diagnosed with after her stepfather’s death in December 2018 until after the May 2019 car accident.

99Both Ms. Telford and Dr. Rosenblat testified that the PTSD the applicant had pre-accident and the adjustment disorder/PTSD she suffered as a direct result of the accident could be intertwined and difficult to differentiate. They were of the opinion that the applicant was suffering from psychological trauma related to both events. At the time of the proposed treatment, Ms. Telford had not begun to treat the applicant for symptoms related to the May 2019 accident. The focus of treatment up to that point had been assisting the applicant through the grief process related to her stepfather’s death.

100I find that the proposed psychological treatment is reasonable and necessary to assist with the applicant’s coping. Her developmental delays pose additional barriers to the treatment and recovery process itself.

101While I recognise that the applicant’s compliance with psychotherapy between the time of the accident and the proposed treatment plan was not ideal in terms of consistency, I have given her the benefit of the doubt that the proposed treatment is reasonable and necessary. The applicant continues to report nightmares related to the accident, and according to Ms. Ferlatte, the applicant’s mood was ‘darker’ after the May 2019 accident.

Is the applicant entitled to $4,230.00 for social work treatment, proposed by Krystin Elson of Invicta Works in a plan dated December 23, 2021?

102I find that the applicant is not entitled to $4,230.00 for social work treatment proposed in a plan dated December 23, 2021.

103Ms. Elson proposed 20 sessions of social worker counseling over a 20-week period. The proposed sessions were to provide counseling and psychosocial therapeutic interventions, practical assistance and advocacy, skill development and psychoeducation, and/or interprofessional collaboration. Ms. Elson noted that should the applicant be denied the proposed services, that she would be at risk of physical and psychological decline. Essentially, the goals of the proposed plan include monitoring risks, identifying psychological and psychosocial concerns, monitoring risks, and reducing potential harms.

104The respondent submitted that the psychological IE conducted by Dr. Cooper on December 7, 2021 found that while the applicant was suffering from developmental delay, PTSD, major depressive disorder, and borderline personality disorder, those conditions were chronic and not predominantly accident-related. Dr. Cooper found that a previous social work treatment plan submitted by Ricci Psychology Professional Corporation was not reasonable or necessary and that an accident-related psychological diagnosis/impairment was not confirmed. Again, I have put little weight on Dr. Cooper’s report and findings for reasons already outlined.

105I do, however, find that the proposed social worker counseling plan is not reasonable and necessary. It is dated after the proposed psychological treatment plan that I find is reasonable and necessary, and I find that the proposed treatment of the two plans overlap. The treatment plan goals listed by Ms. Elson can best be addressed through psychological counseling.

Is the applicant entitled to $2,830.41 for aquatherapy, proposed by Lyndsey Dennis in a plan dated January 10, 2022?

106I find that the applicant is entitled to $2,830.41 for aquatherapy with a kinesiologist.

107Ms. Dennis proposed 20 sessions of aquatherapy with a kinesiologist and included provider travel time and planning services. The goals of the plan are listed as pain management, increased strength, and increased range of motion.

108The applicant submitted that she had aquatherapy and kinesiology in the past and did much better while having those sessions. Since they stopped, she was using a walker more, has lost her balance more, and was falling more frequently. Her pain had also increased, she was fatigued more, and her depression was worse.

109The respondent denied the proposed plan based on a Dr. Khan’s physiatry paper review dated February 9, 2022 and his assessment of the applicant dated July 8, 2021. Dr. Khan found that the applicant had already undergone a course of facility-based therapy that included stretching, strengthening, acupuncture, cupping, and traction. Dr. Khan also found that the applicant had no significant objective accident-related physical impairments or ongoing pathology that would necessitate further rehabilitation intervention.

110I am mindful that the plan was proposed over 2.5 years after the accident, but I accept that the applicant sustained sprains and strains in the form of a whiplash associated disorder (“WAD”) and low back sprain/strain. According to Ms. Mackinnon, the applicant had residual low back pain, and the applicant found aquatherapy to be beneficial in the past. For these reasons, I find that the proposed aquatherapy is reasonable and necessary as it will promote strengthening, community involvement, and to reduce the applicant’s residual pain.

Is the applicant entitled to $2,200.00 for an occupational therapy assessment, proposed by Lyndsey Dennis in a plan dated May 9, 2022?

111I find that $2,200.00 for an occupational therapy attendant care assessment proposed on May 9, 2022 is not reasonable and necessary.

112Ms. Dennis proposed an occupational therapy assessment to address the applicant’s accident-related attendant care needs.

113The respondent denied the proposed plan based on the assessments of Ms. Mackinnon, Dr. Khan, and Dr. Mendis who found that the applicant no longer qualified for attendant care benefits per section 19 of the Schedule. Specifically, the applicant demonstrated the same level of dependency with personal care before and after the accident, the applicant did not require assistance completing self-care activities as a direct result of the sprain/strain injuries she sustained in the accident, and the applicant did not suffer from any accident-related neurological injuries that would require attendant care assistance.

114As I have found that the applicant was not entitled to attendant care after March 17, 2021, the proposed attendant care assessment over a year later is not reasonable and necessary either.

Is the applicant entitled to interest?

115Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the above plans for aquatherapy and psychological treatment are overdue, interest applies to those plans only.

Is the applicant entitled to an award?

116I find that the applicant is not entitled to an award.

117The applicant is seeking an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

118The applicant agrees that the respondent was paying for the applicant’s accident-related supportive care up to March 2021. The applicant submitted that respondent knew that she was relying of $6,000.00 per month for attendant care, yet without warning, the respondent took all of that support away at the same time.

119The respondent submitted that it paid the applicant benefits for close to two years after the accident in good faith before any IEs were conducted. It conducted IEs only after receiving surveillance footage showing the applicant ambulating without any mobility aids in 2020. In response, it secured expert reports and addressed the applicant’s ongoing benefits based on those expert opinions.

120I am persuaded by the fact that the respondent provided continuous financial support for the applicant’s attendant care and support team for nearly two years after the accident in good faith, without any requests for IE assessments. It was not until evidence came to light that called into question the applicant’s level of function that the respondent conducted IEs. Those IEs came to the consensus that the level of support and attendant care the applicant had been receiving was not reasonable or necessary. I do not find that the respondent unreasonably withheld or delayed the payment of benefits.

ORDER

121The applicant is not entitled to $6,000.00 of attendant care benefits from March 17, 2021.

122The applicant is not entitled to $5,403.00 for a four wheeled scooter or $874.61 for a power lift chair.

123The applicant is not entitled to $1,000,000.00 for home modifications or $36,200.00 for 12 months of rent.

124The applicant is entitled to $2,518.96 for psychological treatment dated June 28, 2021.

125The applicant is not entitled to $6,484.20 or $6,108.90 for occupational therapy services that were both proposed on April 20, 2021.

126The applicant is not entitled to $4,230.00 for social work treatment proposed on December 23, 2021.

127The applicant is entitled to $2,830.00 for supervised aquatherapy proposed on January 10, 2022.

128The applicant is not entitled to $2,200.00 for an occupational therapy assessment as proposed on May 9, 2022.

129The applicant is entitled to interest related to the proposed plans for $2,518.96 of psychological treatment and $2,830.00 for supervised aquatherapy.

130The applicant is not entitled to an award.