Citation: Martin v. Certas Home and Auto Insurance, 2023 ONLAT 21-007731/AABS

Licence Appeal Tribunal File Number: 21-007731/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:

Roxanne Martin

Applicant

And

Certas Home and Auto Insurance

Respondent

DECISION

ADJUDICATOR:

Leo Demarce

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Roxanne Martin, Applicant P Antony Drake, Counsel Devan Schafer, Counsel

For the Respondent:

Leslie Bonello, Adjuster

Michael W Chadwick, Counsel

HEARD: by Videoconference:

May 1 to 5, 2023

OVERVIEW

1Roxanne Martin, the applicant, was involved in an automobile accident on September 5, 2016, 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, Certas, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute. Specifically, it denied that the applicant’s accident-related impairments met the definition of catastrophic (“CAT”) impairment. If it is determined that she has suffered a CAT impairment, she is entitled to the extended tier of benefits that accompanies this designation. The respondent is also seeking a repayment of monies paid to the applicant for past income replacement benefits (“IRBs”).

ISSUES

2We have been asked to decide the following issues:

i. Has the applicant sustained a CAT impairment as defined by the Schedule?

ii. Is the respondent entitled to repayment from the applicant in the amount of $9,977.20 for overpayment of past IRBs?

3The amount of the repayment was amended from the initial case conference report and order and the applicant withdrew her dispute for past IRBs. As a result, her entitlement to payment of interest is not in dispute.

RESULT

4After considering the testimony of all witnesses and reviewing all of the documentary evidence, we find that the applicant has not sustained a CAT impairment.

5The respondent is entitled to repayment of past IRBs paid to the applicant in the amount of $9,977.20, plus interest.

BACKGROUND

6On September 5, 2016, the applicant was involved in a motor vehicle accident when an all-terrain vehicle driven by her partner rolled over leaving her pinned underneath. Her partner was able to assist her out from underneath it and took her home. She attended the hospital the next day where she complained of bilateral shoulder pain and was diagnosed with a fractured rib. She was prescribed pain medication.

7Following the accident, she returned to work in her self-employed business as a hairdresser and she continued to work until June 2018.

8An MRI dated February 22, 2018 revealed that she sustained a rotator cuff tear of the right shoulder. On November 28, 2018 she underwent arthroscopic surgery which resulted in less pain and increased range of motion (ROM).

9She also started experiencing pain in her left shoulder. An MRI dated November 16, 2018 revealed that she had sustained a rotator cuff tear of the left shoulder. In June 2019, she underwent arthroscopic surgery of the left shoulder, which was unsuccessful, and the pain increased over time. She underwent another surgery on January 7, 2020 which did not result in any improvement. She has developed chronic pain and a dependence on Percocet to manage her pain.

10On May 17, 2021, the applicant submitted an application for a determination of CAT impairment under Criteria 6, 7 and 8.

ANALYSIS

The applicant has not sustained a CAT impairment as defined by the Schedule.

11The applicant seeks a CAT determination under Criteria 6, 7 and 8 as a result of her accident-related impairments. The applicant bears the burden of proof. Based on the evidence provided and the testimony of all witnesses the applicant failed to persuade the Tribunal on a balance of probabilities that she sustained a CAT impairment. The following is a review of each criterion and our findings based on the evidence.

Criterion 6 or Criterion 7

12To qualify for CAT status under Criterion 6, the applicant must prove that she has a physical impairment or combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, (the “Guides”) results in 55 per cent or more physical whole person impairment (“WPI”).

13To qualify under Criterion 7, the applicant must prove that she has a combination of physical and psychological impairment ratings from medical professionals that meet the 55% WPI threshold. The psychological impairment rating is determined in accordance with the methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008, and is combined with the physical WPI rating from the 4th edition of the Guides using the Combined Values Table.

14The applicant relies on the multi-disciplinary CAT reports of AssessNet Inc, in which she was assessed by Dr. Tartaglia, chiropractor, Dr. Wismer, orthopaedic surgeon, Ms. Cristyn Franic, occupational therapist and Dr. Pallandi, psychiatrist. Dr. Persi, chiropractor and clinical director of AssessNet assigned the applicant’s WPI% ratings under Criterion 6 which concluded that she sustained a WPI of 65% and therefore meets the CAT threshold. Under Criterion 7, Dr. Pallandi determined the applicant’s total WPI from a psychological perspective was 10%, which when combined with the physical WPI% rating equals 68%.

15The applicant argues that the opinions of her CAT assessors should be preferred because it is well established that CAT determinations under the Schedule should be inclusive versus exclusive. Further, she submits that the report of Dr. Karabatsos, the respondent’s orthopaedic insurer examination (“IE”) assessor, contained errors, was not as thorough and disregarded many of her accident-related impairments which should have been rated.

16The respondent relies on the multidisciplinary CAT reports of assessment of AssessMed, in which she was assessed by Dr. Karabatsos under Criterion 6. Dr. Karabatsos concluded that the applicant’s impairment under Criterion 6 was 25%. Dr. Sivasubramanian, psychiatrist assessed the applicant under Criterion 7 and came to the same conclusion as Dr. Pallandi that she had a 10% WPI for her psychological impairment. When the physical and psychological scores of the AssessMed are combined the applicant’s total WPI% under Criterion 7 is 28%.

17The respondent submits that the reports and evidence of its assessors should be preferred because the applicant’s assessors who did the assessments did not assign the WPI% ratings. Instead, Dr. Persi, a chiropractor assigned the WPI ratings. It argues that Dr. Persi’s ratings are inflated and were not done in accordance with the methodology outlined in the Guides. Further, the doctor assigned ratings for various impairments that were completely unrelated to the accident.

18The chart below provides a summary of both parties’ assessors’ ratings and the Tribunal’s finings in regards to criteria 6 and 7 and the rationale for our finding will follow.

Impairment	Applicant’s CAT Summary	Respondent’s CAT Summary	Tribunal’s Finding
Criterion 6
Narcotic Abuse	29%	3%	3%
Right Upper Limb	23%	0%	6%
Left Upper Limb	16%	9%	9%
Cervical and Lumbar Spine	19%	10%	10%
Headaches	10%	0%	0%
Right Lower Limb	3%	0%	3%
Left Lower Limb	3%	0%	3%
Total WPI	68%	20%	27%
Criterion 7
Psychiatric Rating	10%	10%	10%
Total Combined Ratings
Total WPI	68%	28%	34%

19We place little weight on the ratings assigned by AssessNet Inc. because the assessors retained did not assign the WPI% ratings pursuant to the Guides. For example, Dr. Tartaglia and Dr. Wismer performed the clinical interview and physical assessment of the applicant and diagnosed various accident-related physical impairments. However, the doctors left it up to Dr. Persi to assign the WPI% ratings.

20The applicant argues that Chapter 2.2 of Guides support that "any knowledgeable person can compare the clinical findings with the Guides criteria and determine whether or not the impairment estimates reflect those criteria." The applicant relies on the Divisional Court’s decision in Snushall v. Fulsang, 2003 CanLII 48418 (ON SC) (“Snushall”) and a decision of the Ontario Financial Services Commission in M.M. v. Optimum Insurance Co., 2018 ONFSCDRS 83 (“MM v. Optimum”) in support of this position.

21We do not find Snushall helpful to the applicant’s position as we find the applicant’s quote from paragraph [39] of this decision selective. In paragraph [40] the court states:

a) It is therefore important that where the Guides provide ranges instead of fixed percentages, the assessing clinician brings his or her clinical judgment to bear on the question and arrives at a precise percentage. It is then the task of the “knowledgeable person” to determine, as the Guides state, “whether or not the impairment estimates reflect [the Guides] criteria” and to determine how the medical information fits with the other evidence.

22Moreover, in Snushall, the court preferred the rating assigned by the insurer’s assessor because the assessor who conducted the assessment provided a precise WPI% rating. We find that this was not done in the present case by Dr. Wismer or Dr. Tartaglia. It is also important to note that we are not bound by MM v. Optimum. Further, we find this decision distinguishable because in that case the arbitrator determined that the medical evidence supported the assessor’s ratings. In this case, we do not. We place little weight on many of the ratings assigned by Dr. Persi for the following additional reasons:

i. He never met with the applicant in person and did not carry out any part of the physical assessment.

ii. He was inconsistent in the methodology he used in assigning the WPI ratings. For example, the Guides state that in rating the spine the Diagnosis Estimated Model should be used. Instead, Dr. Persi used the Range of Motion (“ROM”) model. In his analysis, Dr. Persi indicated that he used the ROM model for the cervical spine because the applicant had degenerative changes in her cervical spine. We do not find this rationale helpful as the evidence does not support that the accident caused these degenerative changes. For these reasons, we prefer the WPI% ratings assigned by Dr. Karabatsos

iii. He assigned 29% for narcotic abuse under Chapter 4 of the Guides which is not a rating that is supported under this chapter. Further, as a chiropractor it is not within his scope of practice to diagnose this disorder. Further, Dr. Pallandi never diagnosed the applicant with a substance abuse disorder.

iv. Likewise, we do not accept his WPI% ratings for occipital neuralgia under Chapter 4 as this impairment was not supported by the medical record.

v. His ratings of the applicant’s right and left upper extremities were inflated and we agree with the respondent that it amounted to double counting.

vi. With regards to the right upper limb, there was double counting for pain. The first was measured in the grip strength test, which implies pain, and second with the carpal issue which implies chronic wrist pain.

vii. Similarly, with the left upper limb, the range of motion test implies pain as does complex regional pain syndrome. We do not find the medical record support that the accident caused any impairment to the applicant’s wrist or complex regional pain syndrome.

viii. Finally, there was a significant gap in the medical records from the date of the accident to when the applicant started reporting wrist and elbow pain as these complaints arise in 2019.

23Of significance, during cross-examination, Dr. Wismer acknowledged that he had nothing to do with assigning the WPI% ratings under Criterion 6. The doctor also confirmed that he did not diagnose a substance use disorder and agreed that he could not confirm that the impairments to the right wrist and elbow were accident-related. This did not help the applicant’s position or support Dr. Persi’s ratings.

24Although we do not find that many of the WPI% ratings assigned by Dr. Persi are supported by the medical record, we accept the 6% rating assigned for the applicant’s right shoulder as there is evidence that she had ongoing pain and reduced range of motion and function following the accident. We also accept the WPI% rating for the applicant’s hips as the hospital emergency record notes bilateral hip pain and the report of Dr. Kumbhare diagnosed trochanteric bursitis. Further, the applicant has been observed to walk with a limp. However, we prefer the remaining WPI% ratings assigned by Dr. Karabatsos as they are more consistent with the medical record and the methodology outlined in the Guides for assigning ratings.

25When the WPI% ratings we accept are added up in accordance with the Combined Values Chart in the Guides, the applicant’s total rating under Criterion 6 is 27% WPI. Consequently, we do not find she meets the 55% WPI threshold under Criterion 6.

26Since both psychiatric assessors agree that the applicant’s total psychological WPI is 10% we do not find it necessary to address this further. When 10% is added to 27%, the applicant’s total WPI according to the Combined Values Chart in the Guides under Criterion 7 is 34%. Therefore, she does not meet the 55% threshold under Criterion 7.

The applicant does not meet the CAT threshold under Criterion 8

27Impairments under Criterion 8 are assessed under Chapter 14 of the Guides. Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides sets out the four spheres of functioning and the levels of impairment as outlined 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
Adaptation (Deterioration in a work-like setting)

28The applicant relies on the report of Dr. Pallandi and the class ratings assigned by Dr. Persi who determined that she had four marked impairments under each sphere of function. Dr. Pallandi diagnosed the applicant with Adjustment Disorder with Depressed and Anxious Mood. The applicant submits that the opinion of her assessors should be preferred because Dr. Sivasubramanian underestimated her psychological impairments. Further, she submits that Chapter 2.2 of the Guides supports that it is acceptable for Dr. Persi to assign the impairment ratings as he is a “knowledgeable person” and is trained to provide ratings for CAT impairment.

29The respondent relies on the report of Dr. Sivasubramanian who determined that the applicant has a class 2 mild impairment in each sphere. Dr. Sivasubramanian diagnosed the applicant with Somatic Symptom Disorder, with predominant pain, specific phobia (driver and passenger anxiety) and mild Adjustment Disorder with anxious and depressed mood. The respondent argues that the opinion of its assessor should be preferred because Dr. Pallandi did not assign the impairment rating under the Guides. It submits that it is beyond the scope of a chiropractor to opine on psychological impairment ratings. Therefore, the ratings assigned by Dr. Persi should be given little weight. It relies on this Tribunal’s decision in Crecoukias v. Toronto Transit Commission, 2022 CanLII 68324 (ON LAT) which involved a similar scenario where Dr. Persi assigned the psychological impairment ratings under Criterion 8. In Crecoukias, the adjudicator assigned no weight to the insured’s CAT psychological assessment because she found that it is beyond the scope of a chiropractor to assign impairment ratings from a psychological perspective. We agree with the adjudicator’s rationale in this decision and find that it is beyond the scope of a chiropractor to opine on psychological ratings. For these reasons, we give little weight to Dr. Persi’s opinion.

30The Guides highlight that an assessor should use their clinical judgment in assigning impairment ratings. Similar to our findings under Criterion 6, we find that Dr. Pallandi failed to use his clinical judgment in assigning the impairment ratings under Criterion 8. As a chiropractor, we find Dr. Persi’s expertise ends with assessing musculoskeletal impairments as the doctor is not able to distinguish between the impact of psychological versus a physical impairment on function. In our view, Dr. Pallandi was the appropriate assessor to apply the ratings under Criterion 8. Finally, we find the marked impairment ratings assigned by Dr. Persi inconsistent with Dr. Pallandi’s WPI% rating assigned under Criterion 7. For example, Dr. Pallandi’s psychological impairment rating under Criterion 7 was 10%. During cross-examination Dr. Pallandi acknowledged that the applicant’s psychological impairment under Criterion 7 was not severe and the ratings under the three psychiatric scales revealed mild to moderate impairment. Dr. Sivasubramanian testified that although Criteria 7 and 8 employ different methodologies in rating impairment there should not be this type of discrepancy in the results. We were persuaded by this rationale.

31Overall, we did not find the applicant’s testimony helpful in determining whether she has a marked impairment rating under the four spheres of function. Most of her testimony focussed on her physical pain, impairments and limitations from a physical perspective.

32Moreover, Ms. Franic’s report and testimony was not helpful because as an occupational therapist she could not give an opinion to distinguish between the applicant’s limitations as a result of physical versus psychological impairment. In addition, what we find lacking in this case was post-accident clinical notes and records or reports from the applicant’s treating psychologist or practitioners to corroborate her ongoing psychological symptoms and their impact on function. Although we do not accept the ratings assigned by Dr. Persi, for clarity we will now address the spheres of function.

ACTIVITIES OF DAILY LIVING (ADL)

33The Guides specify that activities of daily living include self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitation in these activities should be related to the person’s mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual’s overall situation. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

34We do not find that the psychiatry evaluation by Dr. Pallandi supports that the applicant has a marked impairment in activities of daily living. The report states that the applicant is able to manage her activities of daily living but does so with assistance. Specifically, she requires assistance with personal hygiene. Her sleep is impaired, principally due to pain rather than due to psychological factors. Psychologically, she has a lack of motivation and energy, and she has lost pleasure in activities. She is depressed and her appetite fluctuates. The ongoing use of narcotics has a pronounced impact on this realm in ensuring a safe level of function. We find the extent of Dr. Pallandi’s analysis insufficient. Further, as noted above, Dr. Pallandi did not indicate that the applicant’s limitations were compatible with a marked impairment rating.

35We prefer mild impairment rating assigned by Dr. Sivasubramanian as it is more consistent with both assessor’s psychological ratings under Criterion 7. Dr. Sivasubramanian agreed with Dr. Pallandi that the applicant’s adjustment disorder may be contributing to decreased motivation but that she is primarily limited by physical pain. She is relatively independent, continues to drive, and manages her medications and finances on her own. This was consistent with the applicant’s testimony that she has continued to drive post-accident, can run errands and carry out her personal care and hygiene yet at a slower pace. Further, she is able to do light housekeeping activities and light meal prep. In addition, although she is socially withdrawn there was no evidence that she has any significant limitations with her ability to communicate. We do not find the applicant’s function in activities of daily living consistent with a marked impairment as a result of any accident-related psychological impairment.

Social Functioning

36According to the Guides, this area of social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals such as family and friends, neighbours, clerks and others. It is not only the number of aspects in which social functioning is impaired that is significant, but also the overall degree of interference with a particular aspect or combination of aspects.

37We do not find the psychiatric report of Dr. Pallandi supports that the applicant has a marked impairment in social functioning. Dr. Pallandi reports that the applicant has not been involved in a relationship since the accident because she “cannot be bugged and does not have the energy.” He then states that the applicant enjoys a close relationship with her son. We find that Dr. Pallandi does not describe any mental or behavioural disorder which is interfering with the applicant’s social functioning. Nor did Dr. Pallandi render an opinion that her limitations are consistent with a marked impairment.

38In his evaluation based partially on Dr. Pallandi’s report, Dr. Persi elaborates and compares the applicant’s pre and post accident lifestyle in many facets such as appearance, romantic relationships, socializing, and friendships. Dr. Persi also cites the applicant’s emotional instability such as crying frequently during evaluations, and that she is easily irritated and becomes readily upset and argumentative. He concludes that the applicant’s ability to interact appropriately, including getting along with others as well as with family and friends is substantially impaired.

39We do not find that Dr. Pallandi’s evaluation supports Dr. Persi’s conclusion that the applicant has a marked impairment in social functioning and as already highlighted above we do not find that Dr. Persi is qualified to render this opinion. We prefer the opinion of Dr. Sivasubramanian that the applicant has a mild class 2 impairment under this sphere. Dr. Sivasubramanian’s report notes that the applicant is socializing far less than in the past primarily due to physical pain and “embarrassment” about her current state. The applicant has maintained good relationships with a few friends, her mother, her son and his girlfriend. Further, there is no evidence that she has any limitations in her ability to communicate as a result of any accident-related psychological impairment.

40One of the applicant’s close friends testified that the applicant is socially withdrawn and is more prone to anger and irritation post-accident. However, despite this, the applicant was able to maintain a relationship with her and her husband for several years post-accident. The friend testified that they would speak a few times a week on the phone and the applicant would go to their house twice a month to visit. The applicant and her friend had a falling out a few months prior to the hearing but the reason for this falling out was unclear. Consequently, we are unable to conclude that this was as a result of any accident-related impairment.

41Although we find that there has been a change to the applicant’s social functioning post-accident, we do not find the changes consistent with a marked impairment.

Concentration, Persistence and Pace

42The Guides define this sphere as having the ability to sustain focused attention long enough for the timely completion of tasks commonly found in work settings. Deficiencies in concentration, persistence and pace are best noted from previous work attempts or from observations in work-like settings. The Guides specify that psychological tests are useful in assessing intelligence, memory, and concentration. Frequency of errors, the time it takes to complete a task and the extent to which assistance is required to complete a task is also considered.

43Dr. Persi opined that the applicant has a class 4 Marked Impairment. In Dr. Pallandi’s report he concludes that the applicant “describes a pattern of being distracted by pain as well as psychological disturbance. He cites that the applicant has adjustment symptoms, and her psychological symptoms impair her concentration, persistence, and pace.” This is the extent of Dr. Pallandi’s analysis under this sphere which we find vague and lacking in detail and analysis. We give little weight to Dr. Persi’s findings as Dr. Pallandi does not provide any conclusion that that applicant’s impairments are primarily mental and behavioral in nature. Furthermore, Dr. Persi is not qualified to provide this opinion. Finally, the applicant’s performance during Ms. Franic’s assessment was inconsistent. For example, her performance was poor on the Assessment of Motor and Process Skills (“AMPS”) (a tool to measure functional tasks which are primarily physical in nature); however, she was able to complete the problem-solving tasks. On the first problem solving task she was able to complete seven of nine tasks correctly. After doing the AMPS she was able to complete eight of nine tasks. Although she made some errors, she was able to correct them prior to finishing. In our view, the applicant’s performance is not compatible with a marked impairment.

44Although we do not accept the marked impairment rating assigned by Dr. Persi, we find Dr. Sivasubramanian’s mild impairment rating underestimated the applicant’s function in this sphere. We find the applicant’s impairment rating in this sphere more consistent with a moderate impairment. In his report, Dr. Sivasubramanian notes that she is able to focus and concentrate reasonably well and the following examples were provided.

i. Was occasionally inconsistent and guarded in her testimony but showed no evidence of thought disorder

ii. Did not have difficulty finding words

iii. Manages her finances and medications

iv. Is able to drive independently

v. Watches television and listens to audio books

45We do not find the above analysis thorough and find it inconsistent with Dr. Sivasubramanian’s diagnosis of somatic symptom disorder. Further, Dr. Sivasubramanian notes that it is not clear to what degree the applicant’s current opioid consumption may be contributing to any difficulty with concentration and energy levels. We find that this should have been further explored by the doctor and that the applicant’s impairment in this sphere is more consistent with a moderate versus a mild impairment. However, ultimately, we do not find her function consistent with a marked impairment in this sphere.

Adaptation

46The Guides define impairment in adaptation as the repeated failure to adapt to stressful circumstances, in the face of which “the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate or having difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.” By definition, impairment in adaptation affects the ability to function across all activity areas. Regarding activities of daily living, their quality is judged by their independence, appropriateness, effectiveness, and sustainability.

47In Dr. Pallandi’s report he states that prior to the accident, the applicant worked full-time as a self-employed hairdresser, an occupation she enjoyed and with which she was proud. She has attempted a return to work after the accident but has been unsuccessful, being primarily impeded by her physical limitations. Her secondary adjustment problems undoubtedly contribute to her difficulties maintaining work.

48Dr. Persi then opined that the applicant has a class 4 or Marked Impairment for Adaptation. He states that the applicant historically worked up to 50 hours per week as a hair stylist, and that due to her vast adjustment problems she has no realistic ability to adapt and to cope in any such occupation under any increasing levels of stress. Furthermore, she is quite likely to deteriorate further if she were to do so, which is particularly concerning in light of her current struggles with substance abuse.

49For the reasons already noted, we give little weight to Dr. Persi’s opinion. Furthermore, Dr. Pallandi cites that the applicant’s return to work was impeded primarily by her physical limitations.

50Similar to concentration, persistence and pace we find the applicant’s impairment more consistent with a moderate impairment in this sphere. She has struggled to adapt post-accident as a result of chronic pain and she has developed somatic symptom disorder. However, we do not find the evidence sufficient to support that the applicant has had a repeated failure to adapt to stressful situations. Dr. Sivasubramanian’s report notes that the applicant continued to work sporadically for almost two years after her index accident, being limited only by physical pain and a lack of grip strength in her right hand (amplified by her somatic symptom disorder). He notes that the applicant:

i. Remains relatively independent with her personal care

ii. Managers her medications and finances independently

iii. Drives independently

iv. Was able to maintain eye contact and was able to engage appropriately during her interview

51Dr. Sivasubramanian then concludes that while the applicant is suffering from psychological distress and impairment, that he is in general agreement with other mental health assessors on file that the applicant is suffering from an adjustment disorder, rather than a major mood disorder, which in and of itself would not typically be particularly occupation impairing. We find this statement inconsistent with the doctor’s diagnosis of somatic symptom disorder and that the applicant’s rating in this sphere is more than mild. However, as highlighted above, what we find lacking in this case was post-accident medical records of the applicant’s treating practitioners that document her decrease in function from a psychological perspective. Due to the gap in the medical records we are unable to conclude that the applicant has a marked impairment in adaptation as a result of an accident related psychological impairment. Having said that even if we accept the marked impairment rating assigned by Dr. Persi in this sphere, the applicant does not meet the CAT threshold.

52Although we acknowledge that the accident has had a negative impact on the applicant’s life, she has not met her onus in proving on a balance of probabilities that she has three marked impairments under Criterion 8.

The respondent is entitled to repayment from the applicant in the amount of $9,977.20 for overpayment of past IRBs.

53Section 52 (1)(a) provides that a person is liable to repay to the insurer any benefit that is paid to the person as a result of an error on behalf of the insurer or the insured person. Section 52(2) (a) provides that if a person is liable to repay an amount to an insurer under this section, the insurer shall give the person notice of the amount that is required to be repaid. Section 52(5) provides that the insurer may charge interest on the outstanding balance of the amount to be repaid starting on the 15th day after the notice is given under subsection (2) and ending on the day repayment is received in full.

54The applicant agreed with the respondent that there was an overpayment of past IRBs and the initial amount was amended to $9,977.20. The applicant also did not take the position that the respondent’s notice of the overpayment did not comply with the Schedule. However, in closing submissions she argues that the Tribunal does not have jurisdiction to order her to repay the respondent for past IRBS.

55The respondent submits that there is no merit to the applicant’s argument that the Tribunal does not have jurisdiction to order her to repay the respondent monies overpaid for past IRBs. It contends that it provided the applicant with notice of the overpayment on July 7, 2021. Therefore, it is entitled to repayment in the amount of $9,977.20 plus interest starting on 15 days after this date. We agree with the respondent.

56It is well established that the Tribunal has jurisdiction to make a determination over any dispute involving accident benefits and this includes issues involving repayment to insurers. The applicant did not provide any persuasive arguments in support of her position that the Tribunal lacks jurisdiction to order her to repay the benefit. In our view, since the applicant has agreed that there was an overpayment, we find the respondent is entitled to repayment in the amount of $9,977.20, plus interest pursuant to s. 52 (5) of the Schedule. The Tribunal encourages the parties to work out a reasonable payment schedule for repayment.

ORDER

57For all of the above-noted reasons, we find:

i) The applicant has not sustained a CAT impairment as defined by the Schedule.

ii) The respondent is entitled to repayment in the amount of $9,977.20 for past monies paid for IRBs plus interest payable pursuant to s. 52 (5) of the Schedule.