Licence Appeal Tribunal File Number: 22-001654/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:
Inderani Mariyadas
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Inderani Mariyadas, Applicant
David S. Wilson, Counsel
For the Respondent:
Ken Yip, Counsel
Interpreters:
Chandrasekharan Bangarsamy (Tamil)
Sothy Sinnatamby (Tamil)
Court Reporter:
Jason Nebelung
Heard by Videoconference:
January 23 to February 1, 2023
OVERVIEW
1Inderani Mariyadas, the applicant, was involved in motor vehicle accident on November 14, 2018 (MVA1), 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, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant’s son passed away in a motor vehicle accident on September 3, 2020 (MVA2). His death had a serious psychological impact on the applicant. The respondent agrees that the applicant is catastrophically impaired under Criterion 8 as a result of MVA2.
3This proceeding is limited to MVA1 and, among other things, whether the applicant is catastrophically impaired as a result of MVA1.
ISSUES
4The issues in dispute are:
i. Did the applicant sustain a catastrophic impairment (CAT)?
ii. Is the applicant entitled to attendant care benefits in the amount of $9,641.19 per month from November 14, 2018 and ongoing?
iii. Is the applicant entitled to housekeeping benefits at the rate of $100.00 per week from the date of the accident and ongoing?
iv. Is the applicant entitled to $4,677.83 for occupational therapy services, as proposed by Stacey Baboulas in a treatment plan (OCF-18) dated May 12, 2022?
v. Is the applicant entitled to $7,169.28 for occupational therapy services, as proposed by Genesis Community Rehab in a treatment plan (OCF-18) dated May 18, 2022?
vi. Is the applicant entitled to $7,484.95 for a rehab support worker, proposed by Genesis Community Rehab in a treatment plan (OCF-18) dated August 30, 2022?
vii. Is the applicant entitled to $7,484.95 for a rehab support worker, proposed by Genesis Community Rehab in a treatment plan (OCF-18) dated November 4, 2022?
viii. Is the applicant entitled to $3,200.00 for an assessment, as proposed by Stacey Baboulas in a treatment plan (OCF-18) dated January 28, 2022?
ix. 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?
x. Is the applicant entitled to interest on any overdue payments of benefits?
RESULT
5The applicant is not catastrophically impaired.
6The applicant is entitled to attendant care.
7The applicant is not entitled to housekeeping.
8The applicant is entitled to $4,677.83 for occupational therapy services.
9The applicant is not entitled to $7,169.28 for occupational therapy.
10The applicant is entitled to the two treatment plans for a rehab support worker.
11The applicant is entitled to an attendant care assessment, within the statutory limits of section 25(5)(a) of the Schedule.
12The respondent is not liable to pay an award.
13The applicant is entitled to interest.
ANALYSIS
Catastrophic Impairment (CAT) – Criterion 8
14An 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, caused by the accident. The four areas of function are the activities of daily living (ADL); social functioning; concentration, 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 is catastrophically impaired because she sustained marked impairments in the areas of the ADL, CPP, and adaptation.
17The respondent submits that the accident caused no marked impairments.
18On a balance of probabilities, I find that the applicant is not catastrophically impaired because she did not sustain three or more marked impairments, or an extreme impairment from MVA1.
Mental or Behavioural Disorder
19The applicant relies on the Independent Psychological Assessment of Dr. Pushpa Kanagaratnam, psychologist, dated September 14, 2019. This report diagnoses the applicant with Major Depressive Disorder and Somatic Symptom Disorder, both of which are attributed to MVA1.
20The applicant further notes that Dr. Randy Silverman, psychologist, also diagnosed the applicant with Major Depressive Disorder and Somatic Symptom Disorder caused by MVA1 in a report that is part of the respondent’s CAT Executive Summary.
21Based on this evidence, I find that MVA1 caused the applicant to sustain the mental disorders of Major Depressive Disorder and Somatic Symptom Disorder.
Impact of Mental Disorders on the Applicant’s Life
22The applicant’s Criterion 8 CAT assessment was completed by Dr. Shayna Nussbaum, psychologist. Both Dr. Nussbaum and Dr. Silverman note that the applicant did not have a history of mental health issues prior to MVA1.
23Prior to MVA1, the applicant and her husband had continuously worked six days a week as cleaners since 2012. The applicant completed housecleaning duties along with her husband and did all the cooking for her family which included three adult children. Every Sunday she attended church and also socialized with friends and the people she knew from church.
24Post-MVA1, the applicant is unable to work due to pain and low mood. The housework is completed by her family members. She attends church less frequently and maintains good relationships with her family members, but is otherwise socially withdrawn.
Impairment Levels
25The 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)
26Class 2 impairments are compatible with most useful functioning.
27There 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 all useful functioning.
28A Class 5 impairment does not allow for any useful functioning.
Concentration Persistence and Pace (CPP)
29The evidence does not support a marked impairment rating for CPP.
30The Guides describe CPP as the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings or everyday household tasks.
31Dr. Shayna Nussbaum, psychologist, completed a Criterion 8 evaluation dated June 21, 2021 for the applicant. She rated the applicant as having a Class 4 marked impairment in CPP. This rating is based on the applicant’s focus on pain, fear of sustaining harm, fatigue, low mood, and other psychological factors that interfere with her ability to concentrate on tasks.
32Dr. Nussbaum notes the applicant’s inability to sustain attention for more than 10 minutes of watching television. Observations from an evaluation by Ms. Zainab Bukhari, occupational therapist, dated June 16, 2021 are also referenced by Dr. Nussbaum. Ms. Bukhari documents the applicant struggling to maintain focus during the first day of evaluation. After only 14 minutes, the applicant withdrew from the evaluation. On the second day of testing, the applicant advised Ms. Bukhari that that she was fatigued from the previous day of testing. Ultimately, she was unable to complete any of the tasks and again withdrew from testing.
33These observations are not consistent with other evidence in this proceeding. At her hearing, the applicant testified over a two day period. She became emotional when speaking of her son who passed away, but otherwise answered questions in a clear and focused manner even while under the stress of cross-examination.
34There are other examples which show that the applicant’s impairments are compatible with useful functioning. Her son testified that the applicant instructs him on how to cook meals. She tells him what to do, how long to keep the food in the pot, and guides him through the process. The applicant also testified that the traditional Sri Lankan food eaten by her family takes one and half to two hours per day to cook. The applicant does not physically perform the task of cooking, but she is able to maintain her focus and attention long enough to provide instructions during the relatively lengthy period of the cooking process.
35Ms. Faye Darlene V. Perreras, occupational therapist, tested the applicant’s ability to complete tasks as noted in her report dated December 31, 2021. There were some tasks which the applicant did not complete because of pain or pain focused anxiety. However, there were also tasks that she did complete like making her bed, selecting clothes to go outdoors, and preparing a simple meal of instant noodles. These examples further demonstrate that the applicant’s impairments allow for useful functioning.
36Based on the evidence, I find that the applicant has a moderate, Class 3 impairment in CPP as her impairment levels are compatible with some, but not all useful functioning. The evidence does not support the applicant’s impairments significantly impede useful functioning as required for a class 4, marked impairment in CPP.
Social Functioning
37The evidence does not support a marked impairment rating for social functioning.
38The Guides describe social functioning as an individual’s capacity to interact appropriately and communicate effectively with others. This includes the ability to get along with others.
39Dr. Nussbaum found that the applicant has a moderate, Class 3 impairment in social functioning because the applicant is socially withdrawn but is still able to interact and communicate appropriately with others.
40I agree. There are numerous reports in evidence and all of them describe the applicant as being polite and pleasant. She made a similar impression when she testified at her hearing. She interacted appropriately and communicated effectively with hearing participants during her two days of testimony. She also maintains a close and healthy relationship with her family members, which is also an indication of good social functioning. She did become more isolated and withdrawn after MVA1 and attends church less frequently. Even so, the evidence as a whole shows that her psychological impairments are compatible with some useful functioning. For this reason, I also find that the applicant has a moderate, Class 3 impairment in social functioning.
41Having found the applicant to be moderately impaired in two areas of function, I further find that the applicant is not catastrophically impaired under Criterion 8.
Attendant Care Benefit (ACB)
42An insurer is required to pay for ACBs that are reasonable and necessary and have been incurred as a result of the accident.
43The applicant’s Form 1, dated March 3, 2021, seeks $2,984.50 per month in attendant care. The respondent terminated the applicant’s attendant care benefit on June 18, 2021 based on a file review and a report of Ms. Perraras. This is how the issue is noted on the application to the Tribunal.
44Prior to the hearing, the applicant filed a motion to amend the ACB issue. The applicant submitted four other Form 1’s completed by Ms. Stacey Baboulas, occupational therapist. All of these Form 1’s are dated March 10, 2022 and are part of a report by Ms. Baboulas dated April 21, 2022.
45The first of these Form 1’s is for attendant care services from November 14, 2018 to June 10, 2019 in the amount of $1,039.77 per month. The second is for attendant care services from June 11, 2019 to November 1, 2020 in the amount of $3,848.24 per month. The third is for attendant care services from November 2, 2020 to March 9, 2022 in the amount of $6,935.82 per month. The fourth is for attendant care services from March 10, 2022 and onwards in the amount of $10,498.03 per month.
46Ms. Baboulas testified that a calculation error was made in the amount of the fourth Form 1. The correct amount is $9,641.19 per month.
47The applicant’s pre-hearing motion asked to amend the ACB issue to retroactively claim benefits according to the first three Form 1’s and to amend the amount being sought after March 31, 2021 from $2,984.50 per month to $6,000 per month. On the consent of the parties, the Tribunal issued an order that accordingly amended the quantum of the ACB issue.
48The applicant submits that the need for attendant care predates the March 2022 assessment of Ms. Baboulas. The applicant also submits that her family was providing the items of attendant care recommended by Ms. Baboulas long before her assessment. For these reasons, the applicant should be allowed to retroactively claim an ACB.
49The respondent submits that section 42(5) of the Schedule does not require the respondent to pay any ACB before a Form 1 is received. The respondent further submits that the Tribunal has previously found that an insured person may be retroactively entitled to an ACB, as noted in Gichuki v TD Insurance Meloche Monnex, 2022 CanLII 30696 (ON LAT), but only in the limited circumstances where the insured person was prevented from submitting a Form 1. The applicant made no submissions on this point. Consequently, the Tribunal cannot assess retroactive entitlement to an ACB.
50I agree with the respondent. The Schedule does not require the respondent to retroactively pay an ACB and the applicant has not addressed the narrow exception in the caselaw. As such, I find that the applicant has not established that there is a basis to consider her retroactive claim to an ACB.
51During the hearing, the applicant filed a motion to amend the amount of retroactive ACB to $9,641.19 per month from the date of MVA 1 to March 9, 2022. This motion is dismissed, in part, because the applicant cannot be entitled to a retroactive ACB.
52For the period from March 31, 2021 to March 9, 2022, the motion is allowed. Section 280 of the Insurance Act gives the Tribunal the jurisdiction to resolve disputes between insured persons and insurers, including disputes over the quantum of a benefit. As such, I have jurisdiction to consider the quantum of the benefit being sought by the applicant.
53The Form 1 completed by Ms. Cora Moncada, occupational therapist, appears to have been submitted to the respondent on March 31, 2021. The actual date the Form 1 was received is not in evidence. However, the respondent’s letter, dated June 17, 2021, states that it is discontinuing the ACB. Thus, the Form 1 must have been received before June 17, 2021.
54The Form 1 of Ms. Moncada is dated March 31, 2021. The earliest it could have been received by the respondent is March 31, 2021.
55The applicant’s Notice of Motion, dated July 11, 2022, seeks to amend the ACB claim by replacing the Form 1 of Ms. Moncada with the Form 1 of Ms. Baboulas. The parties consented to this motion and the Tribunal issued an order allowing this amendment. As such, the respondent agreed that the effective date of the Form 1, is March 31, 2021.
56For these reasons, I find that the applicant’s Form 1 was received by the respondent on March 31, 2021. As there is no entitlement to a retroactive ACB, I will consider the applicant’s entitlement to an ACB from March 31, 2021.
57The applicable Form 1 is the fourth Form 1 of Ms. Baboulas which seeks attendant care in the amount of $9,641.19 per month.
58Ms. Baboulas allots attendant care for dressing, undressing, grooming, feeding, hygiene, basic supervisory care, the co-ordination of attendant care, exercise, medication, and bathing.
59In regard to dressing, undressing, grooming, feeding, hygiene, the co-ordination of attendant care, medication, bathing, and exercise the applicant submits that these nine items are reasonable and necessary. This is supported by the testimony of the applicant, the corroborating testimony of her family members, and Ms. Baboulas. This is also supported by various reports in evidence, in particular, the reports of Ms. Baboulas.
60The respondent submits that the testimony of Suvee Mathiroban, the applicant’s rehabilitation support worker, and Ms. Perreras, along with various medical reports, establish that attendant care is not reasonable and necessary.
61For these nine items, I find that the applicant is entitled to attendant care as follows:
Level 1 Routine Personal Care
Dressing and Undressing: The applicant is entitled to 140 minutes per week for dressing and 140 minutes per week for undressing. In submissions, the respondent agrees that the applicant has difficulties with task activation. This is also confirmed in the testimony of Ms. Mathiroban and the functional testing of Ms. Perreras, both of which establish that the applicant can successfully complete tasks if she is cued. The applicant also needs assistance with putting on some clothing, such as jackets, due to pain limitations. I am mindful that some of her pain is not accident related. For example, the pain in her right arm is caused by degenerative osteo-arthritis. However, she did not require assistance with dressing and undressing before MVA1. In my view, this evidence shows, on a balance of probabilities, that an increase in pain occurred after MVA2 because of the somatic pain disorder which is an MVA1 impairment.
Grooming: The applicant is entitled to 228 minutes per week to groom her hair. The respondent cites the reports of Dr. Kekosz, Dr. Rusen, and Dr. Holland as evidence that she is independent with personal care tasks. These reports document the applicant’s functional abilities pre-MVA2. The more recent information, provided by the applicant herself, is that she requires assistance from her daughter in order to groom her hair. Again, in my view, this is because of the pain magnification caused by the somatic pain disorder, sustained in MVA-1, which became worse post MVA2.
Feeding: The applicant is entitled to 840 minutes per week for meal preparation (120 minutes per day x 7 days per week). The testimony of Ms. Mathiroban and the functional testing of Ms. Perreras establish that the applicant is able to prepare a simple meal for breakfast and lunch with cuing and some minor assistance, such as with the tea kettle. Therefore, it is appropriate to allot 15 minutes per day for breakfast, and 15 minutes per day for lunch. The applicant has been unable to cook dinner since MVA1. Her dinners consist of complex Sri Lankan food. As such, 90 minutes per day is allotted for preparing dinner.
Level 2: Basic Supervisory Functions
Hygiene: The applicant is entitled to 70 minutes per week for bathroom and bedroom hygiene. This includes 35 minutes per week (5 minutes x 7 days) for cleaning the bathroom after use, 35 minutes per week (5 minutes x 7 days) for changing bedding. Based on functional testing of Ms. Perreras, I find that the applicant can complete these tasks with cuing.
The applicant is entitled to 105 minutes (15 minutes x 7 days) per week for clothing care. Again, the functional testing of Ms. Perreras establishes that the applicant can complete these tasks with cuing. This includes time to confirm that adequate clothing has been chosen. This is necessary given the testimony of Ms. Mathiroban regarding occasions when the applicant did not select appropriate clothing given the weather.
The applicant is not entitled to attendant care for ensuring comfort. Ms. Baboulas recommended 3360 minutes per week for an attendant to comfort the applicant if she wakes up after a nightmare. The respondent submits the applicant is able to resume sleeping without an attendant. I agree. The applicant testified that she if she awakes at night, then she is able to resume sleeping on her own. As such, I find that 3360 minutes per week to ensure sleep hygiene is not necessary.
The Co-ordination of Attendant Care and Medication: The applicant is entitled to 60 minutes per week for co-ordination of attendant care and 120 minutes per week for medication. The applicant’s psychological impairments cause her to rely on others to properly administer her medication. In my view, these same impairments would also impact her ability to organize and co-ordinate attendant care.
Level 3: Complex Health/Care and Hygiene
Bathing: The applicant is entitled to 105 minutes per week (15 minutes x 7 days) for bathing. Both Ms. Baboulas and Ms. Perreras agree that the applicant requires assistance for bathing. Ms. Perreras did not allot any minutes for bathing in her attendant care assessment because she found that the right shoulder strain causing the pain is not accident related. I disagree. Again, the applicant was able to bathe without assistance prior to MVA1. In my view, this changed after the accident because of her somatic pain syndrome which is accident related. The applicant advised Ms. Perreras that she takes 10 minute showers; thus, the allotment of 15 minutes per day for bathing.
Exercise: The applicant is entitled to 210 minutes per week (30 minutes per day x 7) for exercise. Ms. Baboulas’ report, dated April 21, 2022, states that the applicant’s pain and functional limitations are partially due to the deconditioning that has taken place since MVA1. As such, I find that cues and hands on assistance with exercise are reasonable and necessary.
62Ms. Baboulas allots 4214 minutes per week for basic supervisory care to support and reassure the applicant if she is unable to cope or manage due to escalating emotional impairments. In testimony, Ms. Baboulas also opined that she views basic supervisory care as a “catch-all” for any cuing requirement that ensures the applicant is functional.
63The respondent submits that this request is not reasonable and necessary. Basic supervisory care is being requested on the ground that the applicant requires custodial care due to changes in her behaviour. The applicant does not have cognitive impairments that require her to have custodial care. Moreover, cuing should be allotted for individual tasks and not lumped into a “catch-all” category.
64I find that basic supervisory care is not reasonable and necessary. Lengthy testimony was heard from the applicant, her spouse, her two children, and her rehabilitation support worker. This testimony confirms that the applicant grieves the passing of her son. She becomes sad. Sometimes she cries. If this occurs, the applicant has the capacity to stabilize and regulate her emotions. In my view, the type and the extent of behavioural changes described in this proceeding do not establish a need for custodial care.
65Ms. Baboulas testified that basic supervisory care is a “catch-all” if any cuing need arises. I disagree. The Form 1 describes the applicable category of basic supervisory care as the “applicant needs custodial care due to changes in behaviour.” The applicant has not pointed to any behavioural changes that need to be addressed with cuing. Consequently, I find that basic supervisory care for cuing is not reasonable and necessary.
66The applicant’s entitlement to an ACB is calculated as follows:
Level 1: 1400 minutes/ 60 = 23.33 hrs x 4.3 = 100.32 hrs/month x $14.90 rate = $1494.77 per month
Level 2: 355 minutes/60 = 5.92 hrs x 4.3 = 25.46 hrs/month x $14.00 rate = $356.44 month
Level 3: 315 minutes/60 = 5.25 hrs x 4.3 = 22.58 hrs/month x $21.11 rate = $476.66 per month
Level 1 + 2 + 3 = $2,327.87 per month
67For these reasons, I find that the applicant is entitled to an ACB of $2,327.87 per month.
68The applicant submits that she has not incurred attendant care, however, attendant care expenses should be deemed incurred under 3(8) of the Schedule because the respondent unreasonably withheld the ACB. The evidence shows that the applicant was impaired by MVA1. Despite this, the respondent has denied attendant care on the ground that pre-existing impairments from MVA1 were aggravated by MVA2. It is this aggravation from MVA2 that caused the functional impairments that necessitate the need for attendant care, not MVA1. This position is inconsistent with the jurisprudence in Sabadash v. State Farm et al., 2019 ONSC 1121, and therefore, unreasonable.
69The respondent submits that their position is reasonable and supported by the evidence. The applicant was seriously impacted by MVA2. In fact, she did not even submit a Form 1 until well after MVA2. This is a clear indication that she did not need attendant care until after MVA2. As such, the need for attendant care was caused by a different accident, and therefore, there is no entitlement to attendant care under MVA1.
70I find that attendant care cannot be deemed incurred.
71I agree with the applicant’s interpretation of Sabadash. An impairment caused by an accident, in combination with other factors, is enough to establish causation. There is no dispute that MVA1 caused psychological disorders. There is no dispute that these disorders were aggravated by MVA2 and that this resulted in the current state of the applicant’s impairments. Based on these facts, Sabadash applies and causation is established. The significance of MVA2, in my view, is limited to whether benefits from MVA2 cause an overlap. If the applicant receives attendant care from MVA2, which is not in evidence, then an additional ACB from MVA1 may not be necessary.
72Causation and the reasonable and necessary test are used to determine entitlement to benefits. However, these are two separate and distinct tests. The denial of the ACB is based on causation. I disagree with the respondent’s position on causation, but this alone does not make its denial unreasonable. The respondent’s denial is clear, transparent, and fully explained in its letter of June 18, 2021 and at the hearing. As such, I do not find that the respondent unreasonably denied the ACB. Consequently, I also find that the ACB cannot be deemed incurred under section 3(8) of the Schedule.
Housekeeping
73The Schedule allows housekeeping and home maintenance benefits to those who sustain a CAT impairment. I have determined that the applicant is not CAT. Thus, she is not entitled to this benefit.
Occupational Therapy Services
74The 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.
75The applicant submits that the two treatment plans for occupational therapy services are reasonable and necessary. This is based on the information in the treatment plans themselves which identify specific treatment goals, the methodology for achieving those goals, and these plans are reasonably. The applicant also submits that the evidence in this proceeding firmly establishes that the applicant is seriously impaired.
76The treatment plan dated May 12, 2022 in the amount of $4,677.83 is for in-home occupational therapy sessions that may include daily activities, education on her physical and psycho-emotional issues, education on hurt vs. harm principles, compensatory and remediation to facilitate resumption of daily activities, along with pacing, energy conservation, and activity scheduling techniques among other things. The respondent denied this treatment plan because the orthopedic assessment of Dr. Jamie Rusen, dated April 2, 2019, concluded that the occupational therapy report of Ms. Perreras, dated June 15, 2021, indicates that the applicant has not sustained an accident related impairment.
77The treatment plan dated May 18, 2022 in the amount of $7,169.28 is also for occupational therapy services. The respondent denied this treatment plan for the same reasons.
78I have determined that Sabadash applies and that the applicant’s psychological impairments are caused by MVA1. I further find that the treatment plan in the amount of $4,677.83 for in-home occupational therapy sessions is reasonable and necessary. The goal of the occupational therapy session is reasonable as it aims to restore the applicant’s functional abilities. In my view, the means of achieving this goal, through in-home occupational therapy, and the cost are also reasonable. As such, I find that the applicant is entitled to this treatment plan.
79The second treatment plan for occupational therapy services in the amount of $7,169.28 is not reasonable and necessary. No submissions were made as to why both plans for occupational therapy are required. Consequently, there is no justification to find that the applicant is entitled to the second plan.
Rehabilitation Support Worker
80The applicant submits that the two treatment plans for a rehabilitation support worker, both in the amount of $7,484.95, are reasonable and necessary. The purpose of this treatment is for a Rehabilitation Support Worker to encourage and facilitate the applicant’s participation in functional tasks.
81This treatment plan was denied based on the respondent’s position that the applicant’s functional impairments were caused by MVA2.
82As previously noted, I disagree with the respondent’s position. In my view, Sabadash applies and the applicant’s impairments are caused by MVA1.
83The applicant has received this treatment. Her Rehabilitation Support Worker, Ms. Mathiroban, testified as to the types of activities in which she engages the applicant. This testimony is persuasive in terms of establishing that this treatment is appropriate and well suited to improving the applicant’s functional abilities. For this reason, I find that this treatment is reasonable and necessary and that the applicant is entitled to these two treatment plans.
Occupational Therapy Assessment
84The applicant submits that she is entitled to an occupational therapy assessment dated January 28, 2022, in the amount of $3,200.00.
85More specifically, the assessment is to complete a Form 1 and to determine the ACB, and to assess the applicant’s “retroactive functioning.”
86Having found that the applicant is entitled to attendant care, I further find that this treatment plan is reasonable and necessary, and that the applicant is entitled to this treatment plan but not in the amount of $3,200.00. Section 25(5)(a) of the Schedule limits the payment of an assessment to no more than $2,000.00 plus taxes. The applicant made no submissions as to why the statutory limit is not applicable. Consequently, I find that the applicant is not entitled to an amount greater than the statutory limit.
Award
87I find that the respondent is not liable to pay an award under s.10 of O. Reg. 664.
88Under s.10 of Regulation 664, a lump sum may be awarded to the insured if I find 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.
89The applicant submits that the respondent has unreasonably denied the payment of benefits based on a misinterpretation of the law in regard to causation.
90In my view, the respondent’s denials are transparent, fully explained, and based on evidence. This cannot be characterized as unreasonable. Consequently, I find that the respondent is not liable to pay an award.
Interest
91Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
92I have determined that the applicant is entitled to an attendant care benefit and four treatment plans. As such, the applicant is entitled to interest for the overdue payment of these benefits pursuant to s. 51(4) of the Schedule.
ORDER
93I order the following:
I. The applicant is not catastrophically impaired.
II. The applicant is entitled to attendant care.
III. The applicant is not entitled to housekeeping.
IV. The applicant is entitled to $4,677.83 for occupational therapy services.
V. The applicant is not entitled to $7,169.28 for occupational therapy.
VI. The applicant is entitled to two treatment plans for a rehab support worker.
VII. The applicant is entitled to an attendant care assessment, within the statutory limits of section 25(5)(a) of the Schedule.
VIII. The respondent is not liable to pay an award.
IX. The applicant is entitled to interest.
Released: August 23, 2023
Harry Adamidis
Adjudicator