Licence Appeal Tribunal File Number: 19-009528/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:
Janet Kwartang
Applicant
And
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Janet Kwartang, Applicant
Michelle Velvet, Counsel
For the Respondent:
Jenny Tran, Adjuster
Jean-Claude Rioux, Counsel
Brittanny Tinslay, Counsel
Natalie Maltz, Counsel
Interpreter
Emmanuel Mensah, Twi
Court Reporters:
Greg Vaughan
Paula Monahan
HEARD: by Videoconference:
November 21-25, 28, and 29, 2022
OVERVIEW
1The applicant was involved in an automobile accident on January 20, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES
2The issues in dispute are:
i. Did the applicant sustain a catastrophic impairment (“CAT”) as defined in the Schedule as a result of the motor vehicle accident ("MVA")?
ii. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week for the period July 20, 2016 to date and ongoing?
iii. Is the applicant entitled to a medical benefit in the amount of $1,200.00 for assistive devices, denied by the respondent August 23, 2016?
iv. Is the applicant entitled to a medical benefit in the amount of $3,045.78 for chiropractic services, denied by the respondent June 16, 2017?
v. Is the applicant entitled to $2,200.00 for the cost of an orthopaedic assessment, denied by the respondent October 31, 2016?
vi. Is the applicant entitled to $2,200.00 for the cost of a chronic pain assessment, denied by the respondent April 20, 2017?
vii. Is the applicant entitled to $11,913.00 for the cost of a catastrophic assessment, denied by the respondent December 24, 2018?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
ix. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
MOTION
3On the last day of the hearing, it was determined that Dr. Jacqueline Auguste, orthopedic surgeon, was ill and unavailable to testify. The applicant asked for an adjournment to allow for Dr. Auguste’s testimony. The applicant submitted that this witness’ report was used by the respondent to partially deny a treatment plan. The applicant’s case would be prejudiced if she cannot test this evidence.
4The respondent withdrew the report of Dr. Auguste. In doing so, the respondent submitted, the prejudice to the applicant was eliminated.
5The applicant continued to seek an adjournment to hear from this witness as this testimony may help the applicant in regard to the CAT issues.
6The prejudice to the applicant was removed by striking the report of Dr. Auguste. I found there were insufficient reasons to justify the initial adjournment request.
7In regard to the remaining point, the possibility of the witness providing helpful evidence for the applicant, also does not justify an adjournment. The witness has no medical report to reference. Under these circumstances, it is unlikely that any useful testimony could be provided.
RESULT
8The applicant is not catastrophically impaired.
9The applicant is not entitled to an NEB.
10The applicant is not entitled to treatment plans for assistive devices, nor orthopedic, chronic pain, or catastrophic assessments.
11The applicant is entitled to chiropractic treatment.
12The respondent is not liable to pay and award.
13The applicant is entitled to interest.
ANALYSIS
CAT - CRITERION 8
14An insured person is catastrophically impaired when an accident causes them to sustain a marked or an extreme impairment, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides), 4th edition, in an area of function due to a mental or behavioral disorders. The four areas of function in Criterion 8 are the activities of daily living, social functioning, concentration along with persistence and pace (CPP), and adaptation.
15In 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.
16The applicant submits that she sustained marked impairments in all four areas of function. These impairments are caused by the major depressive and somatic symptom disorders that she sustained from the accident.
17The respondent submits that the applicant did not sustain any marked impairments from the accident.
18I find that the applicant is not catastrophically impaired under Criterion 8 because she does not have a mental or behavioural disorder caused by the accident. In addition, she has not established, on a balance of probabilities, that she has marked or extreme impairment in any of the areas of function.
Mental or Behavioural Disorder
19The applicant relies on the June 6, 2019 medical report of Dr. Abbas Azadian, a psychiatrist, to establish that the accident caused her to develop a major depressive disorder and a somatic symptom disorder. Dr. Azadian bases these two diagnoses on his understanding of the applicant’s pre-accident psychological status and how that status changed after the accident.
20According to Dr. Azadian, the applicant was independent and able to enjoy her life before the accident. She socialized and went on walks. She had no sleeping difficulties. She was also able to look after all her household chores. All of this changed after the accident. She is no longer able to enjoy life. Nothing is fun. She feels down and depressed. She fears going outside. She has sleeping difficulties and requires sleeping pills. She has to push herself to get out of bed and performing household chores are a burden.
21The above post-accident changes described by Dr. Azadian are not supported by the clinical notes and records of Dr. George Otto, the applicant’s family physician. The notes of May 14, 2013 show that the applicant was experiencing symptoms of depression and increased anxiety before the accident. She had poor sleep and had been waking several times per night for an extended period of time. She reported a decreased interest in life and in the things she used to enjoy. According to Dr. Otto, she had inappropriate feelings of guilt and her ability to concentrate was significantly decreased. He determined that she had major depressive disease and prescribed Paxil, an anti-depressant.
22Dr. Azadian was unaware of the applicant’s pre-accident symptoms of depression and anxiety. In my view, this significantly compromises his ability to diagnose how the accident effected the applicant in regard to developing a major depressive disorder. For this reason, I give little weight to his diagnosis.
23Dr. Azadian also diagnoses the applicant with a somatic symptom disorder. The reason for his diagnosis is unclear. He finds that the applicant is experiencing a level of pain that is commensurate with her injuries. If so, the feelings and behaviours related to that pain are not excessive. He also states that the applicant has issues relating to pain perception, but does not explain or describe those issues. Consequently, this part of his diagnosis is difficult to understand and of little evidentiary value.
24Dr. Curt West, psychiatrist, prepared a report for the respondent’s CAT assessment dated December 30, 2019. He found that the applicant does not have a diagnosable mental health condition.
25Dr. Mohammed El Saidi, the applicant’s treating psychiatrist, prepared the most recent assessment under Criterion 8 in an evaluation dated October 16, 2022. He diagnoses the applicant with major depressive disorder, somatic symptom disorder, and post traumatic stress disorder.
26In his evaluation, Dr. El Saidi notes that the applicant has no pre-accident history of mental health issues. He subsequently opines that “but for” the accident, the applicant would not have sustained mental health impairments.
27At the hearing, Dr. El Saidi testified that he was not aware that the applicant was prescribed an anti-depressant and sleeping pills prior to the accident. He was also not aware that she had reported a decreased interest in life and that her ability to concentrate had significantly decreased before the accident. Dr. El Saidi agreed that these are pre-accident symptoms of depression.
28Dr. El Saidi’s report states that the applicant was in a 2011 car accident. She took two weeks off and then returned to work. Dr. Saidi testified that he was not aware that the applicant never returned to work after the 2011 accident and applied to the Ontario Disability Support Program (ODSP).
29Dr. El Saidi testified that he was previously unaware that prior to the subject accident, the applicant’s family doctor, Dr. Otto, believed the applicant had chronic pain and that this impaired her ability to attend to her personal care.
30Dr. El Saidi testified that this new information does not change his opinion regarding causation because the applicant reported that she had improved prior to the subject accident. He also acknowledged that he is unaware of any medical evidence that documents this improvement.
31I give no weight to Dr. El Saidi’s opinion regarding causation. He acknowledges significant inconsistencies that show the applicant is a poor historian. Despite this, he bases his opinion on causation solely on the applicant’s self reporting without referencing any supporting medical evidence. In my view, his opinion on causation is not properly justified.
32In order to be found catastrophically impaired under Criterion 8, the applicant must establish that the accident caused a mental or behavioural disorder. For the reasons stated above, I do not accept Dr. Azadian’s and Dr. El Saidi’s opinions on causation. Consequently, I find that the applicant is not catastrophically impaired under Criterion 8 because the evidence does not establish that she has a mental or behavioural disorder caused by the accident.
Level of Impairment
33In the alternative, if she does have a mental or behavioural disorder caused by the accident, then she is not catastrophically impaired under Criterion 8 because she does not have a marked or extreme impairment in any of the four areas of function.
34The Guides on page 301 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)
35As noted in the Guides, marked impairments do not preclude useful functioning, but significantly impede useful functioning. An extreme impairment does not allow for any useful functioning.
36Dr. Azadian rated a marked impairment in regard to activities of daily living (ADL’s). He notes that the applicant lacks the volition and stamina to practice self care and personal hygiene. She pushes herself to take a shower. Her ability to perform housekeeping and simple home maintenance tasks is adversely affected by pain perception. She has significant anxiety and apprehension as a passenger in a car. In his view, her impairment levels are incompatible with a great deal of useful functioning.
37In my view, the evidence in this proceeding does not support a marked impairment rating for ADL’s.
38The applicant testified that she was unable to clean her house after the subject accident. Her friend Patricia cleaned her house for the first six months after the accident. Since then, the applicant testified, her condition improved and she now cleans her house as often as she did before the accident. The one thing that has changed since the accident is that she is no longer able to maintain her backyard. This is done by her children.
39The applicant participated in an in-home assessment with Ron Findlay, an occupational therapist, on October 17, 2019. In his ADL Functional Assessment, the applicant reports to Mr. Findlay that her tolerances to complete housework have been improving since the accident.
40A catastrophic impairment is a permanent impairment. The improvement noted by Mr. Findlay and by the applicant in her testimony indicate that the level of her functional abilities has increased over time.
41The applicant does not cook to the same extent as she did before the accident. If she works slowly, then she can make plantains and rice. She no longer makes fufu and banku, two of her favourite dishes, because she has been unhappy since the accident. Sometimes she orders in.
42The applicant testified that she received help from Patricia for bathing and dressing during the first six months after the accident. Mr. Findlay’s report also notes that after this initial six month period, the applicant reports being independent in personal care tasks by pacing herself.
43The applicant’s current level of function for ADL’s is not consistent with a marked or extreme impairment rating. Her level of functioning decreased after the accident, but then improved to the point where her impairment levels are compatible with some useful functioning. I find that she has a moderate impairment in ADL’s.
44In regard to CPP, Dr. Azadian rated the applicant as having a marked impairment. He based this on the applicant’s inability to focus. He notes that the applicant has to go back and re-read the pages of the newspaper and that she is unable to follow television shows. He also notes that she is unable to focus on other tasks such as cleaning her home and laundry.
45Dr. Azadian appears unaware that the applicant reported having significant difficulties concentrating in 2013 to Dr. Otto. Again, Dr. Azadian’s ability to properly diagnose an accident related impairment is seriously compromised by a lack of information. There is a clear indication that the applicant had an inability to focus before the accident.
46The Tribunal also notes that Mr. Findlay’s report and the testimony of the applicant herself shows a gradual improvement in her ability to perform housekeeping tasks. Dr. Azadian did not know that the applicant’s ability to focus on and complete a task would improve over time. This undermines the premise that the applicant’s issues with CPP, as described by Dr. Azadian in June, 2019, are permanent impairments.
47The applicant’s ability to concentrate had decreased before the accident. As such, her baseline functioning in the area of CPP was reduced before the accident. There may have been a further decrease after the accident, but there have also been improvements since being assessed in 2019 by Dr. Azadian. In my view, the evidence does not establish, on a balance of probabilities, that the applicant’s impairment level in the area CPP was effected by the accident.
48Adaptation is an area of functioning that relates to the functional ability to adapt to stressful situations. The Guides recommend that raters consider changes in a work setting, awareness of hazards and taking appropriate precautions, use of public transit and travel to and within unfamiliar places, setting realistic goals, and independently making plans.
49Dr. Azadian rates the applicant as having a marked impairment in adaptation. He opines that she has no ability to adapt to any workplace setting or stressful circumstance. She is unable to cope and will withdraw. The reason for this is depression, anxiety, and the anger she feels when placed in such situations.
50Dr. Azadian’s analysis is focused on adaptation in the workplace environment. In my view, this approach is critically flawed. The applicant was already unable to work and in receipt of ODSP benefits for three years before the accident. Consequently, adaptation cannot be considered solely in the context of a workplace setting as the applicant could not work prior to the accident.
51The applicant also relies on the October 16, 2022 report of Dr. El-Saidi. He rates the applicant as having a marked impairment in adaptation. In the report, he makes a blanket statement that all of the applicant’s mental health impairments were caused by the accident. Then, under the heading of “Adaptation,” he provides a treatise on what adaptation is. He cites a lengthy passage from the assessment of an occupational therapist. He then states that he agrees with the marked impairment rating for adaptation made by another psychiatrist. No further analysis is provided.
52Dr. El-Saidi became aware, for the first time at the hearing, of the applicant’s pre-existing impairments. In light of this new information, Dr. El-Saidi testified that he is unable to say if the applicant already had a marked impairment in adaptation before the accident. In my view, his uncertainty undermines the premise that the accident caused a marked impairment in adaptation.
53I give no weight to the evidence of Dr. Azadian or Dr. El-Saidi. They provided opinions without being aware that the applicant had functional limitations in the area of adaptation prior to the accident. Consequently, I find that the evidence does not establish, on a balance of probabilities, that the accident caused the applicant to sustain a marked impairment in adaptation.
54Neither Dr. Azadian nor Dr. El-Saidi rated the applicant as having a marked impairment in socialization. However, the applicant submits that she has such an impairment. She bases this on her decreased level of socializing after the accident. In particular, she used to go to the mall, church, weddings, funerals, and would also socialize with friends. After the accident, the applicant no longer goes to the mall. She mostly stays at home. She has also significantly decreased her attendance at church and social interaction with her friends.
55These submissions address the frequency of social interaction. This is only one element of social functioning. The appropriateness of social interaction, the ability to get along with others, and presenting oneself with basic standards of neatness and cleanliness are also factors to be considered.
56The applicant testified for the majority of the first day of the hearing. There were times when she expressed her frustration, but these instances were brief. Overall, the applicant conducted herself in a polite and courteous manner despite being in a very stressful circumstance for a lengthy period of time.
57The applicant has a good relationship with her daughter. Her relationship with her ex-partner, the father of her daughter, is functional and amicable.
58The surveillance video shows the applicant attending church. She is elegantly dressed and coiffed. This too is an indication of good social functioning as she clearly wishes to present herself in an appropriate manner to others.
59The applicant’s social interactions decreased after the accident. However, when all factors are considered the evidence shows that her impairment levels allow for some useful functioning. I find that she has a moderate impairment in social function.
60The Tribunal has assessed all four areas of function in Criterion 8 and found that the applicant has no marked or extreme impairments. Consequently, I find that she is not CAT under Criterion 8.
CAT - CRITERION 7
61An insured person is CAT under Criterion 7 when an accident causes an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, (the Guides) results in a 55% or more whole person impairment (WPI) rating.
62The applicant submits that she has a physical impairment rating of 42% WPI and a mental and behavioural impairment rating of 35% WPI. Combined, the result is a 62% WPI rating. As such, she is CAT under Criterion 7.
63The respondent submits that the applicant’s right knee is a pre-existing condition that was not caused or aggravated by the accident. The rating assigned to the right knee by Dr. Tajedin Getahun, an orthopedic surgeon, is a 30% WPI. The applicant cannot be found to be CAT once the knee rating is removed.
64The applicant’s arthritic knee is a longstanding condition. Dr. James Seligman, orthopaedic surgeon, wrote a clinical report in 2011 which states that the applicant has right knee arthritis. She also has increasing pain complaints and difficulty managing the pain. He further writes that there is a good chance she will require a knee replacement.
65In his orthopedic report dated June 4, 2019, Dr. Getahun states that the applicant’s knee pain was manageable before the accident. After the accident, she reports that her right knee symptoms increased by 80%.
66The applicant relies on Sabadash v. State Farm et al., 2019 ONSC 1121, where the Divisional Court affirmed that an insurer’s liability cannot be discounted for apportionment of causation due to the insured person having a pre-existing condition. If an impairment is sustained in the accident, then the insurer must pay the applicable benefits.
67According to the applicant, the accident is not the entire reason for the knee replacement surgery. However, the accident caused an increase in knee pain that made the surgery necessary. This makes her right knee replacement ratable under Criterion 7.
68I find that the accident did not hasten the need for surgery. I also find that the knee is not ratable because the need for surgery was caused by osteoarthritis and not an injury sustained in the accident.
69The applicant relies on the report of Dr. Shariff Dessouki, physiatrist, who examined the applicant on November 4, 2019. He confirms the applicant sustained a sprain and strain injury to her right knee from the accident.
70However, the applicant did not seek surgical intervention because the accident caused a sudden increase in pain. The surgery took place three years later in February, 2019. In my view, the lengthy passage of time diminishes the causal link between the accident and the surgery.
71Dr. Getahun’s report documents an increase in knee pain post-accident. He also opines that the accident aggravated pre-existing osteoarthritis in the knee and this culminated in the surgery. He provides no other details or analysis.
72In my view, it is not possible to determine if the accident related injuries still aggravated the applicant’s knee three years later when the surgery took place or if the pain was entirely due to the longstanding degenerative condition of osteoarthritis. Consequently, the medical evidence does not establish, on a balance of probabilities, that the knee pain, leading up to the surgery, was effected by the accident.
73Dr. Alborz Oshidari, a physiatrist, testified that it is impossible for osteoarthritis of the knee to improve, and that if osteoarthritis creates the need of knee surgery, then this need is permanent and cannot be reversed.
74As such, even if the accident did hasten the need for surgery, which has not been established, it is still not possible to find that “but for” the accident the applicant’s knee would not have been replaced. This impairment was not caused by the accident. Osteoarthritis caused the impairment.
75I find that the knee replacement is not ratable. Without the knee impairment, the applicant’s individual physical impairment ratings add up to 18% WPI. When combined with a 35% WPI rating for mental and behavioural impairment, the final result is a 47% WPI rating. Thus, the applicant cannot be found to be CAT under Criterion 7.
76Therefore, I find the applicant is not CAT under Criterion 7.
NEB
77I find that the applicant is not entitled to a NEB from July 20, 2016 and onwards.
78Under s. 12 of the Schedule, an insurer shall pay an NEB of $185 per week to an insured person who suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.
79For the purpose of applying s. 12, paragraph 3(7)(a) of the Schedule states that an insured person suffers a complete inability to carry on a normal life when, as a result of the accident, the person sustains an impairment that continuously prevents them from engaging in substantially all of the activities they ordinarily engaged in before the accident.
80The principles for assessing a “complete inability to carry on a normal life” are set out in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391. A pre- and post-accident functionality comparison is made with the following factors in mind:
a) The applicant’s activities and life circumstances before and after the accident are assessed over a case specific period of time before the accident.
b) “Substantially all” means all the pre-accident activities the applicant ordinarily engaged in. Greater weight may be given to activities the applicant identifies as being important to their pre-accident life.
c) “Continuously prevent" from engaging in pre-accident activities means the accident-related incapacity remains uninterrupted.
d) “Engaging in" is interpreted from a qualitative perspective and requires more than isolated attempts or going through the motions to perform activities.
e) Where pain is a primary factor, the focus is not on whether applicant can physically do these activities, but whether pain “practically prevents” the applicant from engaging in these activities.
81Before the accident the applicant was unable to work and collected ODSP. The activities she engaged in that were meaningful to her were cleaning and looking after her home, cooking, shopping, and going to church. The applicant testified that she was unable to complete these tasks for a six month period after the accident.
82During this initial six month period, the applicant’s household duties were performed by her friend Patricia. The applicant testified that after the six month period, she became more functional and no longer required the assistance of Patricia. The applicant also testified that she continues to improve up to the present time. She is now able to clean her home as frequently as she did before the accident.
83Regarding cooking, shopping, and going to church, the applicant testified that she does not have the same capacity to perform these tasks as well as she did before the accident. She can cook simple meals, but not her favourite dishes. She can go shopping, but cannot carry more than one grocery bag. She attends church, but less frequently than before the accident. This testimony shows that the applicant has a reduced ability to carry on a normal life but not a complete inability to carry on a normal life.
84The applicant submits that little weight should be given to her testimony because she may have misunderstood the questions and inadvertently provided incorrect answers.
85I disagree. At the start of the hearing the applicant and the interpreter confirmed that they understood each other. The questions put to the applicant regarding her ability to perform household duties, cook, attend church, and other aspects of carrying on a normal life where simple and direct. The applicant’s answers were direct and on point. There is no indication of a misunderstanding. As such, I find there is no basis to discount the applicant’s own words.
86Based on the applicant’s testimony, I find that the period in which the applicant had a complete inability to carry on a normal life lasted for six months after the accident. Consequently, I also find that she is not entitled to a NEB from July 20, 2016 and onwards.
Is the applicant entitled to $1,200.00 for assistive devices?
87The applicant is not entitled to $1,200.00 for assistive devices.
88The Schedule requires the respondent to pay all reasonable and necessary expenses incurred by the applicant as a result of the accident for medical and rehabilitative expenses.
89The onus is on the applicant to prove that the expenses are reasonable and necessary. Specifically, that the treatment goals are reasonable, that the goals of treatment can be met to a reasonable degree, and the costs of achieving the goals of treatment are reasonable.
90The burden of proof rests with the applicant to establish that the medical and rehabilitative benefits are reasonable and necessary.
91The applicant provided no evidence and made no submissions on the treatment plan in the amount of $1,200.00 for assistive devices. Thus, there is no basis for me to find that the applicant is entitled to this treatment plan.
Is the applicant entitled to $3,045.78 for chiropractic services?
92The applicant submits that the subject accident exacerbated pre-existing issues in her upper and lower back. This is noted by Dr. Paul Virk, chiropractor, who completed this treatment plan. The report of Dr. Shariff Dessouki, physiatrist, from the respondent’s 2019 CAT assessment confirms these injuries. As such, there is sufficient evidence to find that the applicant is entitled to this treatment plan because this rehabilitative benefit is reasonable and necessary.
93The respondent did not address the points raised by the applicant.
94The respondent denied this treatment plan in a letter dated May 16, 2017. The letter states that the report of Dr. Allan Kopyto, general practitioner, determined that from a musculoskeletal perspective the applicant does not have any accident related impairment requiring treatment.
95I note that the report of Dr. Kopyto actually states that the clinical notes and records and diagnoses provided to him show the applicant has no accident related impairment from a musculoskeletal perspective.
96I also note that Dr. Kopyto conducted a paper review. He did not examine the applicant in-person.
97The applicant was examined in-person by Dr. Dessouki for the respondent’s CAT assessment. He found that the applicant sustained musculoligamentous injuries in the upper and lower spine in the motor vehicle accident. As a result, the applicant was given a 5% WPI rating for her upper back and a 5%WPI rating for her lower back. I note that these are permanent impairment ratings.
98I give more weight to the assessment of Dr. Dessouki. His in-person examination put him in a better position to assess the applicant than the paper review of Dr. Kopyto. As well, Dr. Dessouki is a physical medicine specialist. As such, he is better qualified to make this type of assessment than Dr. Kopyto who is a general practitioner.
99Dr. Dessouki’s examination confirms that the applicant sustained permanent back injuries from the subject accident. In my view, the goals of the treatment plan, namely pain relief, increasing strength and range of motion, are reasonable.
100In the treatment plan, Dr. Virk states that the applicant’s previous participation in this type of therapy yielded improvements, and that this therapy will help decrease pain, improve flexibility and improve core strength. I find that these comments establish that the treatment goals can be met to a reasonable degree.
101The cost of the plan is relatively modest, and in my view, reasonable.
102Consequently, I find, on a balance of probabilities, that the applicant is entitled to this treatment plan.
Is the applicant entitled to $2,200.00 for an orthopaedic assessment and $2,200.00 for a chronic pain assessment?
103The applicant submits, as she did with the previous treatment plan, that Dr. Dessouki’s finding of permanent accident related back injuries justify the applicant’s entitlement to these treatment plans.
104The respondent did not address the points raised by the applicant.
105The goal of the treatment plan for an orthopaedic assessment is to determine prognosis and treatment options. However, the applicant’s prognosis has already been extensively examined in the CAT assessments. In my view, the applicant must show why a further assessment to determine prognosis is needed. This has not been done.
106The additional comments section of the chronic pain assessment states that the purpose of this assessment is to establish the current diagnostic, extent of the injuries, prognosis, and recommendations for recovery. Much of this work has already been done in the CAT assessments. In particular, a diagnosis of existing areas where accident related pain has not subsided, the extent of those injuries, and the related prognosis.
107In both instances, the treatment plans seek to repeat work that has already been done. For this reason, I find that these plans are not reasonable and necessary and that the applicant is not entitled to these plans.
Is the applicant entitled to $11,913.00 for a catastrophic assessment?
108The respondent partially approved this assessment in the amount of $10,000.00. This was done in accordance with 25(5)(a) of the Schedule that limits the payment of each assessment to no more than $2,000.00 plus taxes.
109The applicant made no submissions on why this statutory limit does not apply. Consequently, I find that the statutory limit does apply and that the applicant is not entitled to the unfunded portion of this treatment plan.
AWARD
110I find that the respondent is not liable to pay an award under s.10 of Regulation 664.
111Under s.10 of Regulation 664, a lump sum may be awarded to the insured person 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 plus interest on the overdue amount along with interest at a rate of 2% per month, compounded monthly.
112I found that the applicant is entitled to $3,045.78 for chiropractic services. The applicant submits that the respondent’s own assessor, Dr. Dessouki, found that the applicant sustained a permanent injury in the accident. The respondent should have then readjusted the treatment plan for orthopedic services. Instead, the insurer continues to uphold this denial. The applicant asserts that this is unreasonable and the respondent should be found liable to pay an award.
113There is no evidence that the respondent did not reassess the treatment plan after Dr. Dessouki issued his report. There are no log notes from this period. As well, Andrea Dunbar, adjuster, testified that she does not know if this treatment plan was reassessed after the initial denial in 2017.
114By the time of the hearing, the respondent continued to uphold the denial based on an IE. I disagree with this approach, but there is an evidentiary basis for its position. As such, its conduct is not unreasonable. For this reason, I find that the respondent is not liable to pay an award.
INTEREST
115Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
116The Tribunal determined that the applicant is entitled to a treatment plan in the amount of $3,045.78 for chiropractic services. As such, the applicant is entitled to interest for the overdue payment of these benefits pursuant to s. 51(4) of the Schedule.
ORDER
117I order:
I. The applicant is not catastrophically impaired.
II. The applicant is not entitled to an NEB.
III. The applicant is not entitled to treatment plans for assistive devices, nor orthopedic, chronic pain, or catastrophic assessments.
IV. The applicant is entitled to the chiropractic treatment plan.
V. he respondent is not liable to pay and award.
VI. The applicant is entitled to interest on item IV.
Released: July 10, 2023
__________________________
Harry Adamidis
Adjudicator