Citation: Schroter v. Economical Insurance, 2023 ONLAT 21-007170/AABS
Licence Appeal Tribunal File Number: 21-007170/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:
Monica Schroter
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATORS:
Harry Adamidis and Terry Prowse
APPEARANCES:
For the Applicant:
Monica Schroter, Applicant
Julia Vilorio Peguero and Peter Murray, Counsel
For the Respondent:
Ewa Sobolewska, Adjuster
Martin Forget and Suhasha Hewagama, Counsel
Court Reporter:
Jason Nebelung
LAT Observers:
Jan Dymond, Vice-Chair
Mark Brickell, Member
Christine Carmichael Greb, Member
Heard by Videoconference:
September 1, 2, 6-9, 2023 & November 7-10, 2023
OVERVIEW
1Monica Schroter, the applicant, was involved in an automobile accident on July 17, 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, Economical Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2At the time of the accident, the applicant was working as a supervisor for Canada Post. Following the accident, she returned to work on modified duties in January, 2018 and resumed regular duties and full-time hours a month later. After a year and half, she had a breakdown and is now medically retired. The applicant submitted an application for a catastrophic determination in 2021.
ISSUES
3The issues in dispute are:
Has the applicant sustained a catastrophic impairment as defined by the Schedule?
Is the applicant entitled to an income replacement benefit of $400.00 per week from July 24, 2017 to date and ongoing?
Is the applicant entitled to the occupational therapy services, proposed by Okell Rehabilitation Services, as follows:
i. $4,090.25, in a treatment plan (plan) dated September 14, 2020 and denied September 30, 2020; and
ii. $4,391.73, in a plan dated March 22, 2021 and denied March 31, 2021?
Is the applicant entitled to $2,095.23 for occupational therapy services, proposed by Rehabilitation Management in a treatment plan dated June 25, 2019 and denied July 8, 2019?
Is the applicant entitled to $1,500.00 ($5,960.00, less $4,460.00 approved) for a neuropsychological assessment, proposed by Dr. Lena Solomon dated December 1, 2021 and denied December 15, 2021?
Is the applicant entitled to $2,825.00 ($16,837.00 less $14,012.00 approved) for catastrophic impairment assessments, proposed by Omega Medical dated July 16, 2020 and denied July 28, 2020?
Is the applicant entitled to attendant care benefits of $1,642.55 per month from March 4, 2021 to date and ongoing?
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?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the insurer entitled to a repayment of $5,944.38 relating to its payment of a non-earner benefit?
Is the insurer entitled to interest relating to its payment of a non-earner benefit?
RESULT
4The applicant is not catastrophically impaired.
5The applicant can change her election of the NEB to the IRB. The Tribunal has no jurisdiction to consider the IRB.
6The applicant is entitled to the occupational therapy services in the amount of $4,090.25.
7The applicant is not entitled to $4,391.73 for a massage chair.
8The applicant is not entitled to $2,095.23 for occupational therapy services.
9The applicant is not entitled to $1,500.00 for a neuropsychological assessment.
10The applicant is not entitled to $2,825.00 for catastrophic impairment assessments.
11The applicant is not entitled to attendant care benefits.
12The respondent is liable to pay an award under s. 10 of O. Reg. 664 and interest on the amount incurred.
13The applicant is entitled to interest on an overdue payment of benefits.
14The insurer is entitled to a repayment of $5,944.38 relating to its payment of a non-earner benefit.
15The insurer is entitled to interest relating to a repayment of a non-earner benefit.
MOTIONS
1st Motion of the Applicant
16Prior to the hearing, the applicant filed a motion seeking the following three items of relief:
I. That the Tribunal state a case to the Divisional Court for a finding that the respondent, Economical Insurance, is in contempt of the case conference order;
II. That the Tribunal affirm that the case conference order required the respondent to produce the listed documents to the applicant by June 3rd, 2022;
III. Costs for this Motion.
17This motion was heard at the hearing.
18The case conference order requires the respondent to provide five items of disclosure to the applicant by June 3, 2022. The respondent did not comply. The applicant did not receive any disclosure until July 7, 2022.
19According to the applicant, the respondent’s late disclosure contains deficient documents to purposely undermine the applicant’s ability to present her case. The applicant submits that this constitutes contempt of the Tribunal’s case conference order and justifies stating a case to Divisional Court.
20The respondent acknowledges that it did not provide disclosure to the applicant by June 3, 2022. It explained that this was an oversight, but did not provide further details. The respondent submits that it has made best efforts to obtain the documents listed in the case conference order. It asserts that it provided the documents it has to the applicant and made no attempt to undermine the applicant’s case.
21A prima facie case for contempt is required to state a case to the Divisional Court. In particular, there must be clear evidence that the respondent deliberately disobeyed the case conference order.
22The respondent did not provide disclosure in a timely fashion. However, lateness alone does not establish a prima facie case for contempt.
23The more serious allegation by the applicant is that the respondent intentionally provided deficient disclosure to undermine the applicant’s case. The three items of deficient disclosure referenced in the motion, the submissions of the parties, and the findings of the Tribunal are as follows:
Item 1 – Seven Deficiencies in the Accident Benefits (AB) File
24The case conference order required the respondent to disclose the complete AB file. The applicant lists seven deficiencies in the AB file that was received from the respondent.
25First deficiency: The applicant submits that the respondent did not provide evidence that the respondent provided information and documents to Insurer’s Examination (IE) assessors.
26The respondent submits that each IE report provides a list of the documents reviewed by the IE assessor. The list of documents given to the assessor is also noted on the eClaims Workflow Referral Summary.
27During the hearing, Ewa Sobolewska, an adjuster, testified that she communicates with SOMA, the respondent’s IE vendor, through eClaims. The eClaims Workflow Referral Summary lists the documents provided to the assessors. In our view, this constitutes evidence of the information and documents given to IE assessors. This is not a deficiency.
28Second Deficiency: The applicant submits that the respondent has not provided all Auto Insurance Standard Invoice forms, or OCF-21’s, submitted for the applicant's accident benefits claim, including all OCF-21’s related to any IE that the applicant attended or did not attend.
29The respondent submits that the applicant received all OCF-21’s submitted to her claim by her own treatment providers and by section 44 assessors by October 2021 through her Personal Information Protection and Electronic Documents Act (PIPEDA) request to Health Claims for Auto Insurance (HCAI) Processing. In addition, the AB file provided by the Respondent included a subfolder titled “Invoices” containing 118 documents.
30The case conference order requires the respondent to provide “The Complete Accident Benefits (“AB”) File.” The respondent provided a subfolder of the AB file with all the invoices that are in the AB file. For this reason, we find that this is not a deficiency.
31Third Deficiency: The applicant submits that the respondent has not provided a payment summary of all amounts paid to or on behalf of the applicant, listing the dates, amounts, and type of expense.
32The respondent submits that the Standard Benefit Statements, the OCF-21s, and the adjuster’s log notes provide details of the amounts paid to or on behalf of the applicant.
33The case conference order does not require the respondent to create a payment summary. Consequently, we find that the absence of a payment summary is not a deficiency.
34Fourth Deficiency: The applicant submits that the respondent has not provided a copy of each insurer examiner’s invoice with payment details.
35The respondent submits that it provided the invoices on the AB file and eClaims Workflow Referral Summaries. Additionally, the respondent provided documents that were not on the AB file at the time of the case conference, namely, the responses received from SOMA, the vendor for the IE assessments, and the IE Assessors.
36As noted above under “Second Deficiency” the respondent provided a subfolder that contains all the invoices on the AB file. Consequently, we find that this is not a deficiency.
37Fifth Deficiency: The applicant submits that the respondent has not provided communications including telephone logs, notes, recordings, and any other record of communication relating to the Applicant’s AB claim, that have occurred between Economical and any third party (ie. Surveillance companies, other insurance companies, assessment agencies, regulated health professionals, etc.).
38The respondent submits that all relevant communications have been included in the AB file, the adjuster’s log notes and the eClaims Workflow Summaries provided.
39The AB file was disclosed to the applicant. There is no evidence that communications between Economical and any third party are part of the AB file. As such, the applicant is seeking disclosure that is beyond the scope of the case conference order. For this reason, we find that this is not a deficiency.
40Sixth Deficiency: The applicant submits that the respondent did not provide a copy of all telephone logs, notes, recordings, and any other record of communications relating to the Applicant’s AB claim that occurred internally within Economical, and between the respondent and any of the respondent’s agents.
41The respondent submits that all relevant communication has been included in the AB file, including the adjuster’s log notes and the eClaims Workflow Summaries provided.
42As noted above under the “Fifth Deficiency,” the respondent is only required to provide what is on the AB file. There is no evidence showing the documents being sought by the applicant is on the AB file. If the applicant wanted documents that are not on the AB file, then these should have been requested at the case conference. Therefore, we find that this is not a deficiency.
43Seventh Deficiency: The applicant submits that the respondent did not provide all evidence of communications between Economical and the IE assessors relating to Ms. Schroter’s accident benefits claim, as would be expected to have occurred in accordance with 44(9)(2)(ii) of the Schedule.
44The respondent submits that the IE reports and the eClaims Workflow Referral Summaries provide a list of the documents reviewed for the assessment and the referral questions. This is consistent with Ms. Sobolewska’s testimony that she communicates with SOMA through eClaims.
45Section 44(9)(2)(ii) of the Schedule requires insured persons and insurers to provide relevant and necessary information and documents to persons conducting IEs no later than five business days before the examination. As noted in the testimony of Ms. Sobolewska, the respondent provided documents to SOMA through the eClaims and had no direct communication with IE assessors.
46The eClaims summary has been provided to the applicant. The applicant expects more communication to be on the file, but there is no evidence showing that the respondent is withholding communications between Economical and the IE assessors. Therefore, we find that this is not a deficiency.
47For these reasons, we find that the AB file provided to the applicant is not deficient.
Item 2 – A complete copy of all records of SOMA Medical Assessments, Dr Gilbert Yu Ming Yee, Dr. Joel Eisen, Dr. Rehan Dost, Christina Phillips, Dr. Shafik Dharamshi, including, but not limited to, draft reports, notes, phone logs, communication including invoices and documentation.
48The case conference order required the respondent to disclose a complete copy of all records from SOMA Medical Assessments, subject to the receipt of an authorization signed by the applicant.
49The respondent provided an authorization to the applicant on May 25, 2022. The applicant signed the authorization and returned it to the respondent on July 14, 2022.
50The documentation received by the respondent was provided to the applicant. The respondent submits that it is not in control of this documentation and that it made best efforts to obtain this disclosure.
51The Tribunal agrees. The respondent provided documents it obtained from a third party to the applicant. This is not a deficiency.
Item 3 – Adjuster’s Log Notes
52The applicant submits that the log notes have redactions with insufficient explanations. Single words such as “reserve” and “privilege” are used to describe the redactions. This is contrary to the case conference order which requires a description of the reason for the redaction so that the Applicant has sufficient information to challenge any claim for privilege.
53During the hearing of this motion, the Tribunal agreed that the particulars for the redacted portions of the adjuster log notes lacked sufficient detail. The respondent re-submitted the redacted log notes with more fullsome particulars on September 8, 2022.
54The description of the redactions in the log notes, as originally disclosed by the applicant, are insufficently detailed and this is a deficinecy. However, in our view, this amounts to a disagreement between the parties regarding the level of detail to be provided. It is not an indication of the respondent intentionally trying to undermine the applicant.
55The Tribunal reviewed the concerns raised by the applicant regarding three items of disclosure. We find that these concerns do not establish that the respondent failed to comply with the case conference order to purposely undermine the applicant’s case. We further find that there is an insufficient evidentiary basis to state a case to the Superior Court.
56There is no need to affirm that the case conference order required the respondent to produce the listed documents to the applicant by June 3rd, 2022, the second item of relief in this motion, as this fact is not in dispute.
57The applicant requests costs for this motion. Under Rule 19 of the Licence Appeal Tribunal’s (LAT) Common Rules of Practice and Procedure (the Rules), the applicant may request costs if she believes that the respondent acted unreasonably, frivolously, vexatiously, or in bad faith.
58She submits that the respondent has deliberately prejudiced the applicant by failing to comply with the case conference order. She requests the costs of this motion at $1,000.00 per day.
59The respondent submits that there is no evidence to show that it has acted unreasonably, frivolously, vexatiously, or in bad faith.
60The issue raised by the applicant is bad faith conduct. The Tribunal has already found that there is not enough here to show that the respondent deliberately undermined the Tribunal’s authority by failing to comply with the case conference order.
61In fact, the applicant herself did not comply with the case conference order. Her disclosure was also late.
62We find that the applicant should not be awarded costs.
2nd Motion of the applicant
63During the proceeding, we reserved our decision on the motion to state a case to the Divisional Court. The applicant subsequently filed a second motion, dated September 2, 2022, requesting the following seven items of relief:
i. That the Tribunal decide at the outset of the motion to state a case to the Divisional Court;
ii. In the alternative, that the hearing be stayed until the Tribunal decides the motion to state a case to the Divisional Court and that new hearing dates be provided;
iii. The Tribunal strike the respondent’s Response and/or disallow the inclusion of any section 44 reports;
iv. The Tribunal make an adverse finding based on the refusal of the Insurer to comply with the case conference order without any reasons and that the conduct is so reprehensible that a 50% special award and 2% monthly interest is warranted in these circumstances;
v. The Tribunal declare that the respondent’s failure to produce documents in accordance with the case conference order is an unfair and deceptive act and practice;
vi. The Tribunal add Rowan Saunders, the CEO & President of Economical Insurance, as the first witness to testify on the actions or inactions of the respondent within this application; and
vii. Costs.
64Regarding items i and ii, the applicant submits that staying this decision permits the respondent to continue to withhold documents. This denies the applicant a fair hearing because she is not being provided the documents needed to present her case.
65We decided to reserve our decision on stating a case to Divisional Court and to not stay the hearing. The Tribunal wanted to hear the case and consider the evidence before deciding this motion. After the hearing, we found that there is insufficient evidence to establish a prima face case of contempt. Consequently, we also find that the fairness of the hearing was not compromised by reserving the decision to state a case to Divisional Court. Items i and ii of the motion are dismissed.
66Regarding item iii, striking the respondent’s response or disallowing the admission of section 44 reports into evidence, the applicant submits in paragraph 35 of her motion that the respondent is “knowingly relying on fabricated reports and refusing to disclose information to the Applicant that would allow her to challenge these fabricated reports…”. The applicant bases this submission on a draft version of an IE which shows that changes were made by someone other than the author of the report. According to the applicant, this establishes that this report was ghost-written. The true authorship of this report is being hidden from the applicant and this justifies an adverse inference that all of the respondent’s expert reports are ghost-written. The applicant cannot test the respondent’s evidence, and as such, the Tribunal must strike the respondent’s Response or disallow the use of IE reports as evidence to ensure a fair hearing.
67The respondent submits that the draft version of the IE report was obtained by the applicant through her own information request. This prejudices the respondent because they have no access to this documentation, other than what the applicant chooses to disclose.
68The respondent further submits that they have not withheld any documents from the applicant. They have provided all the documentation they received from the IE vendor. The reports are not ghost-written and the respondent has not engaged in bad faith behaviour. No IE report should be struck.
69The Tribunal decided to reserve our decision in order to hear the case and consider further evidence before deciding this motion.
70We find that there is insufficient evidence to justify striking the respondent’s Response or disallowing the use of IE reports as evidence.
71The draft report referenced by the applicant was written by Christina Phillips, occupational therapist. Ms. Phillips testified that she reviewed the edits and editorial comments and approved the final version of her report. She further testified that the edits and editorial comments did not materially impact her findings on the applicant’s functional abilities.
72In our view, Ms. Phillips testimony is consistent with what is seen in the draft report. The edits and editorial comments do not ask Ms. Phillips to change her findings regarding to the applicant’s functional abilities.
73Forbidding a party to enter evidence in a proceeding is an extreme step that requires clear justification. The applicant’s allegation that the respondent is knowingly relying on fabricated reports, is speculative, and not established in the evidence. Item iii of the motion is dismissed.
74Item iv of the motion asks that an adverse finding be made on the respondent’s refusal to comply with the case conference order and that this warrants a 50% special award and 2% monthly interest. In our view, there is no provision in the legislative scheme that permits the Tribunal to order an award and interest on a motion. Moreover, the Tribunal did not find that the respondent refused to comply with the case conference order in the manner suggested by the applicant. Consequently, there is no basis for an adverse finding, a special award, nor interest. Item iv of the motion is dismissed.
75Regarding item v, that the Tribunal declare that the respondent’s failure to produce documents is an unfair and deceptive act and practice, we have already found that there is no evidentiary basis to conclude that the respondent refused to produce documents in the manner suggested by the applicant. Item v of the motion is dismissed.
76With regard to item vi, that the Tribunal add Rowan Saunders, the CEO and President of Economical Insurance as the first witness, the applicant acknowledges that Mr. Saunders likely has no knowledge of the applicant’s case. Even so, the applicant submits that Mr. Saunders may be able to explain the contractual agreement between the respondent and the IE vendor. This makes his testimony relevant and satisfies the extremely low threshold for parties to request a summons, as noted in T.M. v Belair Direct Insurance, 2021 ONLAT 20-002316/AABS.
77We disagree. The applicant does not know whether the proposed witness can speak to the contractual agreement between the respondent and the IE vendor. This is an assumption being made by the applicant.
78Even if the proposed witness has this information, the applicant has not established an evidentiary link between the contractual agreement, assuming one exists, and the applicant’s claim for accident benefits which is the subject of this proceeding.
79The applicant has not established that the proposed witness has the information to which he is to testify. Even if he has this information, the applicant has not established relevance. Item vi of the motion is dismissed.
80In regard to item vii, that the Tribunal award costs for this motion, the applicant bases this request on the respondent’s abuse of process. In particular, that the respondent purposely failed to comply with the Tribunal’s case conference order to intentionally undermine the applicant’s case.
81The applicant has not established that the respondent has purposely withheld disclosure. We dismiss the request for costs.
3rd Motion of the applicant
82The applicant filed a third motion, dated November 1, 2022, requesting the recusal of Adjudicators Harry Adamidis and Terry Prowse, on the basis that our conduct gives rise to a reasonable apprehension of bias.
83The applicant submits that there are numerous instances when the Tribunal prevented the applicant from presenting her case. She provides the following examples:
The applicant set a schedule of eight witnesses who were to testify between September 1 and September 8, 2022. The Tribunal disrupted this carefully planned schedule by forcing the applicant to reschedule her witnesses.
The Tribunal informed the parties that their briefs are too lengthy and must be culled. This caused the applicant to lose hearing time which seriously limited her ability to present her case.
The applicant was not permitted to express her concerns directly to the Tribunal. This silenced the applicant at her own hearing.
The Tribunal limited the applicant’s questioning in terms of what questions to ask Ms. Sobolewska and the time allowed for questioning.
84The applicant further submits that she is owed a high level of fairness and has the right to present her case as she choses. Instead, the Tribunal has taken over her case and this prevents her from having a fair hearing. According to the applicant, a reasonably informed person would conclude that there is bias on the part of the Tribunal. Thus, the Tribunal must recuse itself.
85The respondent submits that the evidence does not show that the Tribunal has conducted itself in a way that would lead to a finding of bias. This motion should be dismissed.
86We find that there is an insufficient basis to recuse ourselves from this hearing.
87The test for a reasonable apprehension of bias is set out in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 SCR 369:
…the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information…that test is “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 decision maker], whether consciously or unconsciously, would not decide fairly?
88We find that the hearing management decisions referenced by the applicant were necessary to ensure a fair hearing, and would not lead a reasonably informed person to find that our conduct gives rise to a reasonable apprehension of bias.
89The applicant scheduled four witnesses to testify in the first three days of the hearing on September 1, 2, and 6, 2022. Instead, the first day was spent hearing the applicant’s first motion.
90The first day was also spent dealing with the unwieldly briefs of the parties. The case conference order required the parties to file a single PDF copy of their brief. The applicant did not comply with the Tribunal’s order. She filed 24 individual PDF’s containing over 7,100 pages. The respondent filed a single PDF containing 3,400 pages. In total, the Tribunal received 25 individual PDF’s containing 10,200 pages. This was unmanageable and needed to be corrected. The parties agreed to cull and refile their briefs by 9:30AM on September 6, 2022, the third day of the hearing.
91The hearing resumed at noon on September 6, 2022, at which time the Tribunal heard the second motion filed by the applicant. Opening statements were not heard until the fourth day of the hearing on September 7, 2022.
92At the start of the hearing the applicant’s disclosure was improperly formatted and not in compliance with the case conference order. The applicant also presented two motions to state a case to Superior Court. It was these factors, and not the Tribunal, that disrupted the applicant’s witness schedule.
93The Tribunal subsequently worked with the parties to set a witness schedule to ensure the best use of hearing time. Where there was a dispute over who would call a witness, the Tribunal heard submissions to resolve the dispute and ensure a fair hearing for both parties.
94The Tribunal was also concerned about the time being taken up by these events, and made procedural rulings to effectively manage the hearing. As noted by the applicant, this included allotting specific blocks of time for questions and submissions. This was done equitably for both parties.
95The applicant was not silenced. Her concerns were communicated through her counsel. This gave the applicant a meaningful opportunity to express herself to the Tribunal.
96The applicant spent over a day questioning Ms. Sobolewska. This included extensive questioning related to the issue of productions. Unlike what has been suggested by the applicant, a reasonably informed person would view this as a reasonable opportunity to question this witness.
97For all these reasons, we find that a reasonably informed person would not conclude that the panel is biased, and therefore, we do not recuse ourselves.
4th Motion of the applicant
98The respondent filed a Notice of Motion, dated November 8, 2022, for an adjournment. Dr. Joel Eisen, psychiatrist, was in a car accident on November 4, 2022. Dr. Eisen’s spouse advised the respondent by email that Dr. Eisen had fractured ribs, fractured vertebrae, and was taking narcotics for pain.
99On November 8, 2022, Dr. Eisen advised the respondent by email that he had just been released from hospital, was in considerable pain, and was not up to testifying. The respondent filed a motion seeking an adjournment to allow for the testimony of Dr. Eisen.
100The applicant argued against the adjournment request, primarily on the ground that there was not enough evidence to prove that Dr. Eisen was incapable of participating in the hearing.
101The Tribunal denied the request for an adjournment. Based on the two emails referenced above, the Tribunal was satisfied that Dr. Eisen was recovering from a recent car accident, in pain, and unable to testify. In our view, this did not justify an adjournment because his written report was in evidence and could be considered.
102The applicant filed a fourth motion, dated November 10, 2022, for the exclusion of Dr. Eisen’s report. The applicant submits that she is owed a high level of procedural fairness. Moreover, she has the right to test the respondent’s evidence. She is being denied this right, and consequently, it would be unfair to keep Dr. Eisen’s report in evidence.
103The applicant further notes that Dr. Eisen’s report is inconsistent with the evidence of Christina Philips, occupational therapist, and Dr. Pushpa Kanagaratnam, psychologist. Dr. Eisen is not answering these concerns because he intentionally failed to comply with the summons. This taints his evidence and his report must also be excluded for this reason as well.
104The respondent submits that there has been no bad faith conduct on the part of Dr. Eisen. He was in a car accident. He is in pain. This is a legitimate reason to not appear at the hearing. Moreover, the respondent’s case would be prejudiced if Dr. Eisen’s report was excluded from this proceeding.
105The Tribunal agrees that the applicant is owed a high level of procedural fairness and that she has the right to test the evidence of the respondent. However, this right is not absolute and must be considered along with the other circumstances of this case.
106We have already found that Dr. Eisen was in an accident and is unable to testify. He has not intentionally failed to comply with a summons. As well, there is no dispute regarding the relevance of this report.
107Under these circumstances, we find that the report is admissible. The applicant’s inability to test this evidence will be considered when determining how much weight should be given to this report. The applicant’s fourth motion is dismissed.
ANALYSIS
Has the applicant sustained a catastrophic impairment (CAT)?
CAT - Criterion 8
108We find that the applicant is not catastrophically impaired under Criterion 8.
109An insured person is catastrophically impaired under Criterion 8 when an accident causes them to sustain a marked impairment, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides), 4th edition, in three or more areas of function due to mental or behavioural disorders, or an extreme impairment in one area of function as a result of the accident. The four areas of function in Criterion 8 are the activities of daily living; social functioning; concentration, persistence, and pace (CPP); and adaptation.
110In determining whether an insured person is catastrophically impaired for mental or behavioural disorders, the Tribunal considers whether the accident caused a mental or behavioural disorder, the impact of the disorder on the person’s life, and the level of impairment.
111The applicant submits that the accident caused her to sustain a marked impairment in three areas of function: the activities of daily living, CPP, and adaptation.
112The respondent submits that the applicant did not sustain any marked impairments from the accident.
113On a balance of probabilities, we find that the applicant is not catastrophically impaired under Criterion 8 because she has not sustained a marked impairment in two areas of functioning: social functioning, and CPP.
Mental or Behavioural Disorder
114Dr. Pushpa Kanagaratnam, psychologist, conducted a mental/behavioural screening assessment of the applicant on November 10, 2020 for her OCF-19 Application for Determination of Catastrophic Impairment. He diagnoses her with major depressive disorder, somatic symptom disorder, and specific phobia (vehicular).
115Dr. Joel Eisen, psychiatrist, examined the applicant on June 23, 2021 in regard to a catastrophic impairment determination for the respondent. He diagnosed the applicant with an adjustment disorder, somatic symptom disorder, and specific phobia (driving/passenger anxiety).
116The applicant sought treatment for sleep issues prior to the accident. There is no clear evidence of her having any other mental health issues prior to the accident. As such, the reports of Dr. Kanagaratnam and Dr. Eisen are sufficient to establish, on a balance of probabilities, that the applicant sustained mental and behavioural disorders that were caused by the accident.
Impairment Levels
117The Guides set out the levels of impairment as represented in the chart below:
| Area or Aspect of Functioning | Class 1: NO Impairment | Class 2: MILD Impairment | Class 3: MODERATE Impairment | Class 4: MARKED Impairment | Class 5: EXTREME Impairment |
|---|---|---|---|---|---|
| Activities of Daily Living | No impairment is noted | Impairment levels are compatible with most useful functioning | Impairment levels are compatible with some, but not all useful functioning | Impairment levels significantly impede useful functioning | Impairment levels preclude useful functioning |
| Social Functioning | |||||
| Concentration, Persistence and Pace | |||||
| Adaption (in a work-life setting) |
118Class 2 impairments are compatible with most useful functioning.
119There is a clear distinction between a Class 3 moderate and a Class 4 marked impairment. Moderate impairments are compatible with some useful functioning. Marked impairments significantly impede useful functioning.
120A Class 5 impairment does not allow for any useful functioning.
Social Functioning
121According to the Guides, social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with others. This includes the ability to get along with others.
122We find that the applicant’s accident-related psychological disorders resulted in a Class 2 mild impairment in regard to social functioning. This is because her psychological impairments are compatible with most useful functioning.
123The applicant did not testify at her hearing. Consequently, the only evidence of her functional impairments comes from documentary evidence and the witnesses who did testify.
124Dr. Kanagaratnam examined the applicant. He also relied on the Occupational Therapy Evaluation of Kelly Chan, occupational therapist, and the collateral information provided by the applicant’s boyfriend. Dr. Kanagaratnam notes that the applicant became socially withdrawn after the accident. She socializes less. Her depression and fear of pain contributes to her socially withdrawn lifestyle in which she prefers to stay at home. These factors have contributed to a decrease in social functioning which Dr. Kanagaratnam rates as a Class 3 moderate impairment.
125Dr. Eisen also examined the applicant. He reviewed the report of Dr. Kanagaratnam and the IE of Christina Phillips, occupational therapist. He notes that her relationship with her boyfriend is strained because of issues related to intimacy. However, he is supportive. He brings her food and provides financial support to the applicant. They see each other twice per week. Her relationship with her daughter has improved since her daughter moved out. She communicates frequently with her brother. She was observed by Ms. Phillips interacting appropriately with various staff at a Shoppers Drug Mart during a situational assessment. Dr. Eisen determined that the applicant has a Class 2 mild impairment in social functioning.
126The evidence does show that applicant became socially withdrawn after the accident. However, her ability to interact appropriately and communicate effectively with others remains intact. For example, she has been able to maintain a long term relationship with her boyfriend. The relationship with her daughter is improving. Ms. Phillips observed the applicant easily engaging in conversation with the staff at Shoppers Drug Mart, being warm and pleasant, saying hello to a pharmacy assistant, and waving to the pharmacist. These examples are consistent with good social functioning.
127We note that the applicant was less functional during the December, 2020 assessment of Ms. Chan and became more functional by the time of Ms. Phillip’s May, 2021 assessment. This is significant because catastrophic impairments are permanent impairments. Improvements that occur over the course of time are to be noted and given weight.
128The accident impacted the applicant’s social functioning, but in our view, the evidence shows her level of impairment allows for most useful functioning. We find that this justifies a Class 2 rating.
Concentration, Persistence, and Pace (CPP)
129CPP is the ability to sustain focus long enough for the timely completion of tasks found in work settings.
130We find that the applicant’s accident-related psychological disorders resulted in a Class 2 mild impairment in regard to CPP. This is because her psychological impairments are compatible with most useful functioning.
131Dr. Kanagaratnam notes that the applicant’s cognitive difficulties and her inability to sustain focus are caused by depressive symptomology, anxiety, and pain. He references the December, 2020 evaluation of Ms. Chan which documents these issues and the applicant’s inability to cope.
132During the evaluation with Ms. Chan, the applicant wrote down instructions to complete tasks. The notes were incomplete, and this contributed to unsuccessful task completion. The applicant was in pain and had a heightened level of anxiety, but she refused to take breaks and manage her symptoms. Poor regulation exasperated her already compromised ability to complete tasks. Ultimately, the applicant shut down. She did not appear for the second day of testing and failed to respond to voicemails. Dr. Kanagaratnam determined that the applicant has a Class 4 marked impairment in the area of CPP.
133The applicant improved by the time Ms. Phillips conducted an IE on May 3, 2021. The applicant completed five psychosocial screens in a timely manner without cueing. She also completed functional tasks in the community. She provided a detailed account of her history that was consistent with her medical records. Ms. Phillips notes that the applicant had minor cognitive difficulties with attention, memory, and word finding. These became worse by the end of the assessment when she was exhausted. All the testing could not be completed because of fatigue and knee pain. Ms. Phillips also noted that the applicant had learned compensatory strategies to manage cognitive difficulties at home.
134The applicant advised Dr. Eisen that she keeps appointments and remembers to take medication by setting reminders, does her own banking, and uses automated payments to pays bills. She is able to follow the storyline of television programs and can remember the gist of programs. She also looks after her cat. Dr. Eisen observed that the applicant was able to provide a detailed narrative, recalled pertinent dates, and the names of healthcare providers. He rated her as having a Class 2 mild impairment in CPP.
135Cori Snow, the applicant’s treating occupational therapist, completed a progress report dated November 29, 2020 in which she describes finding a disorganized pile of documents that had built up over the previous two to three years. She worked with the applicant to put a system in place to review and organize her documents. As a result, Ms. Snow reports that the applicant can now implement strategies to stay on top of any new materials that are presented to her.
136The applicant’s ability to sustain focus long enough for the timely completion of tasks has improved over the course of time. In our view, her impairment levels are now compatible with most useful functioning. For this reason, we find that the applicant has a Class 2 mild impairment in the area of CPP.
137The applicant does not have a marked impairment in two areas of function. Thus, it is not possible for her to have three marked impairments in Criterion 8. As such, we find that she is not catastrophically impaired under Criterion 8.
CAT – Criterion 7
138The applicant is not catastrophically impaired under Criterion 7.
139An insured person is catastrophically impaired under Criterion 7 when an accident causes an impairment or combination of impairments, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (the Guides), that results in a 55% or more whole person impairment (WPI) rating.
140The applicant submits that her combined physical and mental or behavioural impairment rating amounts to a 58% WPI. This includes 14% for mental status and 5% for sleep impairment ratings under the nervous system in Chapter 4 of the Guides.
141The respondent submits that the applicant does not have neurological impairments that affect her mental status or sleep. Once these ratings are removed, the applicant cannot meet the 55% threshold.
142Dr. Dale Robinson, neurologist, assessed the applicant on November 12, 2020 for a Neurology Evaluation. He determined, “on the balance of medical probabilities,” that the applicant likely sustained a mild traumatic brain injury (MTBI) in the accident. He bases this on the likely rotational forces, multiple impacts, and the head strike that took place during the accident. Dr. Robinson notes there was no loss of consciousness, but the applicant did have a reduced recall of the events. In his view, the likely MTBI has exacerbated her pre-existing sleep issues and he provides a rating of “1-5%.”
143In regard to cognitive disfunction, Dr. Robinson notes that the applicant scored normally on the MoCA (Montreal Cognitive Assessment). However, further neuropsychological testing is needed to better understand her neurological condition. He provides a rating of “1-14%” for the applicant’s mental status.
144Dr. Dost, neurologist, assessed the applicant on April 21, 2021 for an Independent Insurer’s Examination Neurology report. He determined that the applicant did not sustain a MTBI. A person must experience a loss of consciousness, amnesia, disorientation or confusional state in order to be diagnosed with MTBI. However, there are no medical records that confirm any of these factors. Therefore, the applicant cannot be diagnosed with a MTBI and no rating can be given for neurological cognitive issues.
145Dr. Dost further notes that the applicant’s sleep issues are caused by psychiatric factors and should be rated as psychiatric impairments. An additional rating for sleep under the nervous system artificially inflates the rating.
146Dr. Robinson subsequently issued a Neurological Paper Review. He agrees that pain and psychiatric factors have caused the applicant’s cognitive and sleep issues. However, these factors do not discount the possible contribution of the applicant’s MTBI.
147Dr. Robinson also testified that Dr. Dost minimized the impact of the head strike. The applicant’s memory gap from the accident, in his view, is enough to confirm that a MTBI likely did occur.
148We find that no rating can be made for cognitive and sleep impairments under the nervous system in Chapter 4 of the Guides.
149As noted by Dr. Dost, a necessary component for an MTBI is a loss of consciousness, amnesia, disorientation or confusional state. According to Dr. Robinson, the applicant’s memory gap meets this requirement but he does not provide a clear diagnosis of MTBI. The furthest he will go is to say that a MTBI is likely. In our view, a finding cannot be made on the balance of probabilities standard that the applicant sustained a MTBI with such tenuous evidence.
150Additionally, if the applicant did sustain a MTBI, then there is insufficient evidence to show that her nervous system aggravated her sleep and cognitive impairments. The applicant achieved a normal score in the MoCA. This is the only neurological testing score referenced by Dr. Robinson. It shows that the applicant’s cognitive abilities are not affected by neurological conditions.
151He explains the normal test score by stating that formal neuropsychological testing is needed to better understand the interplay of the multiple factors effecting the applicant’s cognitive dysfunction. This statement shows that he does not have enough information to determine what, if any, impact the applicant’s nervous system has had on her cognitive issues. This is consistent with the statement from his paper review. Specifically, that the applicant’s MTBI has made a “possible contribution” to her cognitive issues. The mere possibility of a worsening effect is an insufficient basis to find, on a balance of probabilities, that the applicant’s nervous system has impacted her sleep and cognition.
152The applicant submits that the mere possibility of the MTBI effecting cognition is enough to satisfy the evidentiary requirements set out in the Guides. In particular, the applicant references the Causation section of the Glossary which states that medical determinations only need to show that an alleged factor “could have” contributed to the worsening of an impairment. She asserts that the Guides are permissive and the evidence before the Tribunal meets this evidentiary standard.
153We disagree. The section cited by the applicant goes on to say that it is also necessary to verify that the alleged factor “did cause or contribute” to the worsening of the impairment. For reasons already stated, the evidence is not enough to verify that the alleged MTBI contributed to the worsening of the applicant’s sleep and cognition.
154We also note that item 10 from the same section in the Glossary describes two standards of proof, “possibility” and “probability.” “Probability,” according to the Guides, is a likelihood of greater than 50%. This equates to the balance of probabilities test used by the Tribunal. There is no indication that the Guides prohibit or discourage the use of this evidentiary standard.
155No rating can be made for cognitive and sleep impairments under the nervous system in Chapter 4 of the Guides. When the 14% and 5% ratings are subtracted from the ratings in the applicant’s CAT assessment, the result is a 50% WPI rating, which is below the 55% threshold. Thus, we find that the applicant is not catastrophically impaired under Criterion 7.
Income Replacement Benefit (IRB)
156The applicant submitted a completed Application for Accident Benefits (OCF-1) to the respondent by fax on July 31, 2017.
157The respondent wrote to the applicant on August 30, 2017, advising that a Disability Certificate (OCF-3) was required to determine eligibility for an IRB. The same letter states that the applicant is not entitled to a Non-Earner Benefit (NEB).
158On September 8, 2017, the respondent received an Employer’s Consent Form (OCF-2) confirming that the applicant was continuously employed with Canada Post since 1994.
159On October 16, 2017, the respondent wrote to the applicant and acknowledged that two Disability Certificates (OCF-3) were received. The letter also advised her that she may qualify for the IRB or the NEB. The applicant was provided with an Election of Income Replacement, Non-Earner, or Caregiver Benefit (OCF-10) form and was asked to select either the IRB or NEB.
160The applicant selected the NEB. On April 15, 2018, the respondent wrote to the applicant. The NEB was approved, and a cheque was issued in the amount of $6,475.00 for the period of August 15, 2017 to April 15, 2018.
161On May 29, 2018, the respondent wrote to the applicant. Short term disability payments received by the applicant resulted in an overpayment in the amount of $6,117.62. The respondent requested a repayment of the NEB overpayment.
162On January 25, 2021, the applicant wrote to the respondent. She provided a second Election form (OCF-10) in which she chose the IRB.
163The applicant submits that the election of the NEB is invalid and that she is entitled to an IRB. The applicant was not eligible for an NEB because she was working at the time of the accident. This was clear in her documents. Despite this clear information, the respondent provided an Election form (OCF-10) to the applicant. This is not in compliance with 32(2) of the Schedule which requires the respondent to provide the correct forms to the applicant. As well, the respondent did not comply with 35(1) of the Schedule because it took more than 10 business days to provide the OCF-10 to the applicant.
164The applicant cites a number of cases, including Prosser v. Progressive (FSCO A96-000358) and Botezatu v. Certas, 2017 ONFSCDRS 185, in which the Adjudicators found that an election of benefits was invalid because the insurer gave incorrect information regarding accident benefits to the insured person. The applicant alleges that the same circumstances exist here because the insurer advised the applicant that she may be eligible for the NEB, which is factually incorrect. The applicant was an unrepresented lay person who relied on the incorrect information provided by the insurer. These circumstances, in addition to the non-compliance with 32(2) and 35(1) of the Schedule, invalidates the applicant’s election of benefits. Therefore, the applicant submits that she can change her election to an IRB. Moreover, that the Tribunal should find the applicant eligible for the IRB and order the respondent to pay this benefit.
165The respondent submits that the applicant provided no testimony. This creates an evidentiary gap that does not allow for a finding that she was confused by the correspondence of the respondent. The original election for the NEB is valid and the applicant is statute barred from proceeding with an election for the IRB.
166We find that the applicant’s election of an IRB on January 25, 2021 is valid and can proceed.
167Under 5(1) of the Schedule, the applicant qualifies for an IRB if she sustains an impairment as a result of an accident, was employed at the time of the accident, and as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.
168Under 12(1)(1) of the Schedule, the applicant qualifies for an NEB only if she does not qualify for an IRB, and sustains an impairment as a result of an accident, and where she suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.
169Under 35(1) of the Schedule, if an application indicates that an applicant may qualify for two or more of the IRB, NEB, and caregiver benefit, then the insurer shall give a notice to the applicant that he or she must elect the benefit he or she wishes to receive.
170The applicant’s Application (OCF-1) indicates she is “employed and working.” No other box is checked off in Parts 5-7. The applicant indicates that her injuries prevent her from working and that she had been working for the previous 52 weeks in Part 8 of the form. The respondent also received an OCF-2 from the applicant’s employer that confirmed the applicant was working at the time of the accident. The applicant gave no indication that she may qualify for two or more benefits. As well, there is no indication that the applicant does not qualify for the IRB. As such, 35(1) does not apply and there was no statutory requirement for the applicant to complete the Election form (OCF-10).
171The respondent advised the applicant in its letter of August 30, 2017 that a determination had been made that she is not eligible for the NEB and that she may be eligible for just one benefit, the IRB. Under these circumstances, 35(1) does not apply.
172Despite the respondent’s determination that the applicant is not eligible for the NEB, the respondent’s October 16, 2017 letter asks the applicant to choose either the IRB or the NEB. This does not comply with 35(1) which requires the respondent to request the OCF-10 within 10 business days of receiving the application. The lateness of the respondent’s letter invalidates the election of benefits process set out in section 35 of the Schedule. For this reason also, 35(1) does not apply.
173Persons who make an election of benefits under 35(1) are barred from changing the type of benefit they have chosen by 35(3) of the Schedule. As no election was made under 35(1), the statute bar does not apply to the applicant, and she can change her election.
174Additionally, the applicant was previously told that she is not eligible for the NEB. The respondent then told her that she may be eligible for the NEB, but provided no explanation. This makes the October 17, 2017 letter confusing.
175The respondent submits that without testimony there is no basis to find that the applicant was confused by its correspondence. We disagree. The applicant was faced with a highly technical change in the administration of her accident benefit claim. She is a layperson and it is unrealistic to expect that she would be able to grasp this change. Even someone with expert knowledge of the accident benefits scheme would be unable to understand this change given the absence of an explanation in the respondent’s letter.
176This circumstance is distinguishable from 17-001606 v Unifund, 2017 CanLII 14840, a case cited by the respondent. In that case, the Adjudicator found that an informed choice had been made by the applicant and her lawyer. Those circumstances do not apply here. The applicant was an unrepresented layperson and did not have the benefit of counsel.
177Paragraph 32(2)(b) of the Schedule requires the respondent to provide the applicant with a written explanation of the benefits available. This was not done. There was a significant change in the administration of the applicant’s accident benefit claim that was not explained in writing. Consequently, we further find that the applicant’s initial election of the NEB is invalid as the respondent did not comply with 32(2)(b).
178For all these reasons, we find that the applicant can change her election from a NEB to an IRB.
179Section 280 of the Insurance Act gives the Tribunal jurisdiction to resolve disputes between insured persons and insurers. The respondent has not denied an IRB as this was a matter in dispute before the Tribunal. Consequently, the Tribunal has no jurisdiction to determine if the applicant is eligible for an IRB.
Repayment of NEB and Interest
180Under 52(1)(c) of the Schedule, an insured person is liable to repay a NEB if they received other income replacement assistance that is deductible from the NEB.
181The onus is on the insurer to establish their entitlement to a repayment.
182The respondent submits that it is entitled to a repayment. The applicant received collateral income replacement benefits while she received the NEB. Under s.12(2) of the Schedule, these collateral benefits are deductible from the NEB. This resulted in an overpayment of $6,018.38 of the NEB.
183The applicant made no submissions on the repayment of the NEB.
184The respondent provided an accounting of the overpayment in their correspondence to the applicant dated May 29, 2018. We also note that these facts are not in dispute. As such, we find that the respondent is entitled to a repayment.
185Once the respondent’s entitlement to a repayment is established, we then consider the provisions in s. 52 of the Schedule regarding how the repayment is administered. In particular, sections 52(2) and (3) establish timelines for repayment requests if a person is liable for repayment. The insurer is required to give the person notice of the amount that is to be repaid. If notice is not given within 12 months after the payment of the amount to be repaid, the person ceases to be liable to repay that amount unless it was originally paid to the person as a result of wilful misrepresentation or fraud.
186The pay period for the NEB began in August, 2017.
187On May 29, 2018, the respondent made its first request for repayment in the amount of $6,018.38. After some adjustments, on June 12, 2018, the respondent wrote to the applicant and requested a repayment of the NEB in the amount of $5,944.38.
188The respondent provided notice of the amount of the full amount to be repaid within 12 months after the NEB was paid to the applicant. As such, the requirements of s. 52 and s.53 of the Schedule have been satisfied by the respondent. Consequently, we find that the respondent is entitled to a repayment of the NEB.
189The Schedule allows the respondent to charge interest on the outstanding balance of the amount to be repaid from the 15th day after the notice of repayment is given until the day repayment is received in full. The interest rate is the minimum rate at which the Bank of Canada makes short term advances to the banks listed in Schedule I of the Bank Act
190The applicant made no submissions on interest.
191As such, we find that the applicant must pay the “bank rate” interest from 15 days after the repayment request was made on May 29, 2018, pursuant to the Schedule.
Occupational Therapy
192The Schedule requires the respondent to pay medical benefits to the applicant if the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense.
193The applicant bears the onus of proving that she is entitled to a treatment plan by establishing, on a balance of probabilities, that the treatment plan is reasonable and necessary.
194Regarding the treatment plan in the amount of $4,090.25 for occupational therapy submitted by Okell Rehabilitation Services dated September 14, 2020, the respondent denied this plan based on two IE’s.
195The Orthopaedic IE of Dr. Ramunas Saplys, orthopaedic surgeon, is dated May 29, 2018. This report states that the applicant no longer has a significant functional orthopaedic impairment and that there is no indication that further facility based treatment is required. Instead, he recommends a self-directed exercise program.
196The IE of Dr. Velan Sivasubramanian, psychiatrist, states that the applicant has returned to work, travels, maintains social relationships, and her psychiatric condition has improved. Dr. Sivasubramanian further states that there are no limitations or restrictions for the applicant to make a full psychiatric recovery.
197The applicant submits that the testimony of Ms. Snow confirms that this plan was incurred by the applicant and that the respondent approved similar occupational therapy treatment after this denial. As such, this plan should also be found to be reasonable and necessary.
198The respondent submits that the two IE’s justify the denial.
199We find that the applicant is entitled to this treatment plan.
200The reports of Dr. Saplys and Dr. Sivasubramanian considered the applicant’s eligibility for a NEB. Their assessments focused on whether the applicant suffers a complete inability to carry on a normal life. They did not apply the reasonable and necessary test, and did not even mention occupational therapy. Their comments are not on point, and this limits the utility of the reports for the purpose of considering this treatment plan.
201The assessments of both doctors are from 2018. This was less than a year after the accident. At that time, the applicant had returned to work. Since then, the applicant had a breakdown and is medically retired from work. The CAT assessments of both parties confirm that she has ongoing accident related psychological and physical impairments. In light of these developments, the earlier reports of both doctors are dated and out of touch with the long term impact of the accident. This also diminishes the evidentiary value of the two IE’s.
202Ms. Sobolewska testified that the respondent approved treatment plans for occupational therapy after this plan was denied. She agreed that this plan should have been reassessed, but could not explain why this was not done. This is significant because after this treatment plan was denied, the respondent determined that similar occupational therapy is, in fact, reasonable and necessary.
203Ms. Snow testified that the applicant incurred this treatment. She also testified on how the applicant’s functional ability to complete the activities of daily living improved as a result of these occupational therapy sessions.
204In our view, the testimony of Ms. Snow and the subsequent approvals of occupational therapy are more persuasive than the IE’s used to deny this treatment plan. As such, we find that this treatment plan for occupational therapy is reasonable and necessary.
205In regard to the treatment plan in the amount of $4,391.73 for a massage chair submitted by Okell Rehabilitation Services dated March 22, 2021, the applicant submits that this treatment plan was made during Covid when pain relief options, such as massage and physiotherapy, were limited. The chair provides the applicant with pain relief and this makes this treatment plan reasonable and necessary. The applicant further submits that no weight should be given to the respondent’s IE which viewed this plan from an orthopaedic perspective and did not consider pain relief.
206The respondent submits that the denial is appropriate as it is based on an IE.
207We find that the applicant is not entitled to this treatment plan.
208The IE of Dr. Gilbert Yee, a medical practitioner, is dated July 29, 2021. He documents continuing strain injuries in the applicant’s cervical and thoracolumbar spine. He notes tenderness in these areas but also that the applicant has a functional range of motion.
209Ms. Snow wrote a report in support of this treatment plan dated March 16, 2021 to Chandelle Homewood, adjuster. Ms. Snow documents that the applicant reports extreme pain in her neck, back, and calves. The applicant rates the pain in her lower back at 10/10 on the Visual Analogue Pain Scale. The massage chair was purchased for the applicant by her boyfriend to provide relief from this extreme pain.
210If the applicant was experiencing extreme pain in her neck and unbearable pain in her back, then it is reasonable to expect that this would be in Dr. Yee’s report. The absence of this information constitutes an inconsistency between what the applicant told Dr. Yee and what she reported to Ms. Snow regarding the level of pain she was experiencing. The applicant did not testify at the hearing to clarify this inconsistency.
211In light of this unexplained inconsistency, we find that the applicant has not established, on a balance of probabilities, that a massage chair providing pain relief is reasonable and necessary.
212Regarding the treatment plan in the amount of $2,095.23 for an occupational therapy in-home and workplace assessment proposed by Rehabilitation Management dated June 20, 2019, the respondent denied this treatment plan based on a paper review conducted by Dr. Saplys.
213The applicant made no submissions on this treatment plan.
214We find that this treatment plan is not reasonable and necessary.
215The plan consists of two parts, an in-home and a workplace assessment. The applicant has not pointed to any evidence which helps to establish that this treatment plan is reasonable and necessary. Consequently, there is no basis to find that the applicant is eligible for this plan.
Neuropsychological Assessment
216The respondent partially approved this assessment in the amount of $2,460.00. This was done in accordance with 25(5)(a) of the Schedule which limits the payment of each assessment to no more than $2,000.00, plus taxes.
217The applicant made no submissions on why this statutory limit does not apply. As such, we find that the statutory bar applies, and that the applicant is not entitled to the unfunded portion of this treatment plan.
Catastrophic Impairment Assessments
218The respondent partially approved these assessments in the amount of $14,012.00. This respondent did not agree to pay $500.00 for x-rays as this item can be arranged through a family doctor and paid by OHIP. The respondent also did not pay for a neurophysiatry assessment for $2,000.00. This was viewed as redundant in light of other assessments already funded by the respondent.
219The applicant did not make submissions on why x-rays and the neurophysiatry assessment are reasonable and necessary. As such, there is no basis to find that the applicant is entitled to the unfunded portion of her catastrophic assessments.
Attendant Care Benefit (ACB)
220The applicant is not entitled to an ACB.
221An insurer is required to pay for ACBs that are reasonable and necessary and have been incurred.
222The applicant’s Form 1, dated March 4, 2021, seeks $1,642.55 per month in attendant care. This allots minutes for grooming, feeding, hygiene, supervisory care, exercise, and the maintenance of supplies and equipment.
223The applicant relies on the testimony of Ms. Snow, who completed the Form 1. She testified that the applicant does not dress or take showers every day. The applicant does not eat three meals per day and buys unhealthy, prepared food. She has difficulty picking up after herself and keeping her place tidy. Ms. Snow also testified that the applicant needs emotional support, check-ins, and cuing because she lacks sufficient motivation to complete tasks. The applicant also needs 30 minutes at the end of each day to de-brief and explore thoughts of self harm. In testimony, Ms. Snow amended her recommendation of 100 minutes per week for exercise. These minutes are no longer required because the applicant is now exercising independently.
224Elana Korman, occupational therapist, examined the applicant on July 18, 2022 for an IE. Ms. Korman completed strength testing, grip testing, manual muscle testing, and range of motion testing. She also observed the applicant completing tasks such as washing and scrubbing dishes, reaching upper levels of cabinets, gripping and cutting with a knife, opening a jar, filling a pot with water and putting it on the stove, touching the top of her head and reaching her toes, folding clothing, and putting on and removing socks. The applicant completed some tasks fluidly, while others required pacing and modified techniques. The applicant reported that she completes self care activities such as dressing, grooming, feeding, hygiene, and bathing. She also reported completing housekeeping duties, although she finds it difficult to complete vacuuming and heavier duties. She socializes with friends and has resumed driving short distances. Ms. Korman determined that the applicant is functional and that attendant care is not required.
225The applicant submits that Ms. Korman’s assessment is flawed because, she did not consider the applicant’s psychological impairments. Even if the applicant is able to physically complete tasks, those tasks are not being completed because of her lack of motivation. For this reason, the Tribunal should prefer Ms. Snow’s evidence which takes the applicant’s psychological impairments into account. The Tribunal should also prefer Ms. Snow’s evidence because Ms. Snow is the applicant’s treating occupational therapist and has more insight into the applicant’s functional abilities.
226The applicant is physically able to complete the activities of daily living. This is not in dispute. Her ability to complete tasks is also noted in the reports of Ms. Philips and Ms. Korman. The reports document the applicant completing various tasks such as cooking a simple meal, folding clothes, and washing dishes.
227The applicant’s main point is that psychological impairments reduce the frequency of task completion to where she cannot be viewed as being functional. This is based on what the applicant said to Ms. Snow. However, the applicant also told Ms. Korman that she independently completes all self-care and housekeeping activities. This is a contradiction.
228The applicant did not testify at her hearing. As such, no explanation has been provided to clarify this inconsistency.
229It is up to the applicant to prove her case on a balance of probabilities. In light of the applicant being physically able to complete the activities of daily living and that there is an unexplained inconsistency regarding the impact of her psychological impairment, we find that she has not established, on balance, that attendant care is reasonable and necessary.
230For these reasons, we find that she is not entitled to an ACB.
Interest
231Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
232The Tribunal determined that the applicant is entitled to a treatment plan for occupational therapy in the amount of $4,090.25. As such, the applicant is entitled to interest for the overdue payment of these benefits pursuant to s. 51(4) of the Schedule.
Award
233The Tribunal finds that the respondent is liable to pay an award under s.10 of O. Reg. 664.
234Under 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. When such a finding is made, the Tribunal may order up to 50% of the withheld or delayed payment along with interest at a rate of 2% per month, compounded monthly.
235The applicant submits that the respondent continues to uphold the denial of the treatment plan in the amount of $4,090.25 for occupational therapy. This is despite the testimony of Ms. Sobolewska, who acknowledged that this plan should be revisited in light of the fact that similar occupational therapy was approved after this plan was denied. The applicant had to subsequently incur this treatment because of the respondent’s unreasonable conduct. Consequently, an award should be granted to the applicant.
236The respondent submits that the denial is reasonable as it was based on two IE’s.
237In 17-001630 v Travelers Canada, 2018 CanLII 76431 (ON LAT), the Tribunal found that unreasonably withholding or delaying benefits is “behavior by an insurer which was excessive, imprudent, stubborn, unyielding or immoderate, in withholding or delaying payments.”
238The adjuster testified that this treatment plan should have been reconsidered. This differs from the more typical circumstance where two parties disagree on their view of the evidence. Here, an agent of the respondent agrees that this treatment plan was not properly adjusted. Despite this, the respondent maintains it’s denial. We agree that this behaviour can be characterized as stubborn and unyielding. This leads us to conclude that the respondent has unreasonably withheld payment.
239Once this finding is made, the Tribunal may consider the six factors in Persofsky v Liberty Mutual, FSCO Appeal P00-00041, January 31, 2003 for determining the quantum of an award:
i. the blameworthiness of the insurer’s conduct;
ii. the vulnerability of the insured person;
iii. the harm or potential harm directed at the insured person;
iv. the need for deterrence;
v. the advantage wrongfully gained by the insurer;
vi. other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct.
240The Tribunal must also consider the overall length of the delay, which is the seventh factor for considering the quantum of an award as noted in 17-006757 v Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT), at para 45.
241In our view, blameworthiness and delay are the applicable factors. The respondent maintains the denial despite the adjuster’s admission that this plan should have been re-assessed. This behaviour however, is mitigated by the fact that it approved other occupational therapy, and this minimized the impact of the denial on the applicant. As such, it is appropriate to grant an award for an amount at the lower end of the spectrum.
242For these reasons, an award of 10% is granted, plus interest for the amount incurred.
ORDER
243The Tribunal orders:
i. The applicant is not catastrophically impaired.
ii. The applicant can change her election of the NEB to the IRB. The Tribunal has no jurisdiction to consider the IRB.
iii. The applicant is entitled to the occupational therapy services in the amount of $4,090.25.
iv. The applicant is not entitled to $4,391.73 for a massage chair.
v. The applicant is not entitled to $2,095.23 for occupational therapy services.
vi. The applicant is not entitled to $1,500.00 for a neuropsychological assessment.
vii. The applicant is not entitled to $2,825.00 for catastrophic impairment assessments.
viii. The applicant is not entitled to attendant care benefits.
ix. The respondent is liable to pay an award under s. 10 of O. Reg. 664 and interest on the amount incurred.
x. The applicant is entitled to interest on an overdue payment of benefits.
xi. The insurer is entitled to a repayment of $5,944.38 relating to its payment of a non-earner benefit.
xii. The insurer is entitled to interest relating to the repayment of a non-earner benefit.
Released: July 14, 2023
Harry Adamidis
Adjudicators
Terry Prowse
Adjudicators