Licence Appeal Tribunal File Number: 21-014720/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:
Amelia Plastina
Applicant
and
Intact Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR: Harry Adamidis
APPEARANCES:
For the Applicant: Kevin Henderson, Counsel Jordan Kofman, Counsel Holly Schmid, Student-at-law
For the Respondent: Leanne Zawadzki, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Amelia Plastina, the applicant, was involved in an automobile accident on May 12, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (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.
PRELIMINARY ISSUE
2The applicant asks for the notes and records of Dr. Galati and Dr. Hoff to be admitted into evidence. She submits that these records were received after the disclosure deadline of January 23, 2023. Both documents were served on the respondent by February 13, 2023. The applicant acted in good faith and provided the documents to the respondent soon after they were received. Consequently, the applicant should be allowed to rely on these documents.
3The respondent made no submissions on this issue.
4In my view, these documents are relevant and should be admitted. There is no indication that the late disclosure was caused by bad faith behaviour on the part of the applicant. Moreover, the respondent has not identified any prejudice caused by the late disclosure.
5These documents are admitted into evidence.
ISSUES
6The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to an income replacement benefit of $185.00 per week from May 7, 2021 to date and ongoing?
iii. Is the applicant entitled to attendant care benefits of $2,355.87 per month from January 7, 2021 to date and ongoing?
iv. Is the applicant entitled to $11,216.00 for psychological services and an assessment, proposed by Andrea Chung in a treatment plan/OCF-18 (“plan”) dated March 18, 2019 and denied on November 11, 2019?
v. Is the applicant entitled to $3,057.40 for psychological services and an assessment, proposed by ADD Centre Ltd. in a treatment plan dated May 11, 2020 and denied on December 3, 2020?
vi. Is the applicant entitled to $14,000.00 for psychological services and an assessment (catastrophic), proposed by Kaplan and Levitt Psychologists in a treatment plan dated October 25, 2019 and denied on November 26, 2019?
vii. Is the applicant entitled to $6,073.75 for psychological services in a treatment plan dated May 3, 2020 and denied on June 25, 2020?
viii. Is the applicant entitled to $5,254.90 for psychological services in a treatment plan dated September 29, 2020?
ix. Is the applicant entitled to $1,850.00 for psychological services and an assessment proposed by Shoreham Chronic Pain and Assessment Centre in a treatment plan dated December 18, 2020 and denied on January 6, 2021?
x. Is the applicant entitled to $125.00 ($3,715.60 less $3,590.40 approved) for a psychological assessment, proposed by Dr. Tory Hoff in a treatment plan dated September 8, 2021 and denied on October 8, 2021?
xi. Is the applicant entitled to $317.14 for therapeutic expenses, submitted on a claim form (OCF-6) dated November 12, 2019 and denied on January 10. 2020?
xii. Is the applicant entitled to $220.00 for medical prescriptions and an assessment, submitted on a claim form (OCF-6) dated January 3, 2020?
xiii. Is the applicant entitled to $525.28 for medical prescriptions and therapeutic expenses, submitted on a claim form (OCF-6) dated February 11, 2020?
xiv. Is the applicant entitled to $53.93 for therapeutic expenses, submitted on a claim form (OCF-6) dated April 16, 2020 and denied on May 27, 2020?
xv. Is the applicant entitled to $168.37 for glasses frames, submitted on a claim form (OCF-6) dated October 20, 2020?
xvi. Is the applicant entitled to $35.05 for a medical alert ID bracelet, submitted on a claim form (OCF-6) dated November 30, 2020?
xvii. Is the applicant entitled to $71.75 for medical prescriptions, submitted on a claim form (OCF-6) dated October 19, 2020?
xviii. 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?
xix. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7The applicant is catastrophically impaired under Criterion 8.
8The applicant is entitled to a post-104 IRB of $185.00 per week from May 7, 2021 and onwards.
9The applicant is entitled to an ACB of $205.66 per month.
10The applicant is not entitled to any of the treatment plans in dispute.
11The applicant is entitled to interest for the IRB.
12The respondent is not liable to pay an award.
ANALYSIS
Catastrophic Impairment (CAT) – Criterion 8
13An 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.
14In 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.
15The applicant submits that she has marked impairments in CPP and adaptation. This is supported by the opinion of her medical expert and other evidence that shows she has significant functional limitations caused by the accident.
16The respondent submits that the applicant’s functional limitations allow for some useful functioning. The evidence shows that she can engage in and complete certain tasks. As such, she has no marked impairments.
17I find, on a balance of probabilities, that the applicant is catastrophically impaired under Criterion 8 because her impairments significantly impede useful functioning in the areas of CPP and adaptation.
Mental or Behavioural Disorder
18The applicant’s CAT assessment by Dr. Brian Levitt, psychologist, dated March 27, 2020 diagnoses the applicant with somatic symptom disorder, post-traumatic stress disorder, and an adjustment disorder with depressed mood caused by the accident.
19The CAT assessment of the respondent by Dr. Ralph Lubbers, psychologist, dated December 11, 2020, diagnoses the applicant with a somatic symptom disorder, specific phobia (driving avoidance), and an adjustment disorder with mixed anxiety and depressed mood, also caused by the accident.
20While there is some variance in their opinions, both doctors have diagnosed the applicant with a somatic symptom disorder and an adjustment disorder. This is sufficient to find that the applicant has a mental or behavioural disorder caused by the accident.
Level of Impairment
21The 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)
Concentration, Persistence, and Pace (CPP)
22CPP is the ability to sustain focus long enough for the timely completion of tasks found in work settings.
23I am satisfied based on the evidence that the applicant’s impairments significantly impede her ability to sustain focus and complete tasks found in work settings in a timely manner.
24Dr. Levitt rates the applicant’s impairment in CPP at a Class 4 marked impairment level. He notes the following in regard to the applicant’s functional abilities in relation to CPP:
a) The applicant does little on a daily basis.
b) She rests all day to prepare a family dinner.
c) She is overwhelmed in stores and needs assistance to navigate and make basic decisions.
d) She is unable to concentrate, persist and pace normally across many work and online course attempts, having lost jobs and not being able to complete courses.
25Dr. Lubbers gives the applicant a Class 3 moderate impairment rating for CPP. He notes the following, much of which is taken from the insurer examination (IE) completed by Leslie Hisey, occupational therapist, and dated 11 December 2020:
a) The applicant attempted to return to work post accident. However, the display cases were very bright. This caused migraines, nausea, and feeling ill. She also had a delayed response with clients. Customers would become angry and yell at her, which made everything worse. The applicant listened to clients and suffered internally, then went to her manager and cried. She stopped working shortly after returning to work and did not return.
b) The applicant attempted to return to school with accommodations but was unsuccessful. The applicant tried to complete her international business degree; however, due to her visual disturbance and inability to concentrate, she reportedly became overwhelmed and was unable to finish her studies.
c) Her volunteer work involves 1.5 -2 hours, one day per week. Her sister completes the brunt of the work and the applicant acts as a helper, contributor, and planner.
d) She trained to be a sales associate at Tiffany’s but was unable to meet the requirements due to poor concentration and was terminated.
e) Intake (for Ms. Hisey) was “tedious.” The applicant talked quickly, jumping from one topic to another. She returned to her fear of the future topic over and over. She went from smiling to bursting into tears. She seemingly could not get her thoughts out at times. She tripped over her words and had difficulty finishing sentences.
f) The applicant responded to most questions in an appropriate manner throughout the assessment. However, her mother finished some of the applicant’s thoughts. The applicant lost her train of thought several times. She appeared to have difficulty finishing her thoughts and presented with word finding problems.
26The applicant has the functional ability to engage in and to complete tasks. However, being able to complete a task does not preclude a Class 4 marked impairment rating. The manner in which a person performs or completes a task distinguishes a moderate impairment from a marked impairment. Class 3 moderate impairments are compatible with some useful functioning. A marked impairment significantly impedes useful functioning.
27I find that the evidence shows, on a balance of probabilities, that the applicant’s accident-related impairments significantly impede useful functioning.
28The most relevant examples of functioning for a CPP assessment involve the ability sustain focus long enough for the timely completion of tasks found in work settings. At the time of the accident, the applicant was enrolled in a degree program for international business. She tried to continue with her studies after the accident, but ultimately had to drop out. She was advised to modify her expectations and subsequently took a grade 11 biology course. It took her one and a half years to complete this course.
29Prior to the accident, she worked part-time in retail. Post-accident, she was unable to focus and provide timely service to customers. Irate customers made her emotionally distraught. As a result, she was unable to successfully resume employment.
30There are things the applicant can do with assistance; for example, performing volunteer duties at her church for a limited period of time and with the assistance of her sister. She is also overwhelmed in stores and needs assistance to navigate this environment and make basic decisions. In my view, the extent to which she requires assistance to complete these relatively straightforward tasks indicates a significant impediment to useful function.
31The accident significantly compromised the applicant’s ability to sustain focus long enough for the timely completion of tasks found in work settings. Prior to the accident, she was able to work part-time and study in a degree program. Post-accident, her mental and behavioural impairments impede her ability to function in these areas. She has lost jobs. She is unable to complete online courses for her degree program. She did complete a high school course, but not in a timely fashion. She requires assistance to engage in volunteer activity and to shop in malls.
32The respondent points to other examples of the applicant’s useful functioning. These include the applicant’s ability to complete self care, to prepare supper for her family, her ability to appropriately answer questions during the IE, her ability to travel, and her ability to be in a romantic relationship and become engaged.
33Some of these examples are not relevant to an assessment of CPP. As noted above, impairment ratings for CPP are based on the applicant’s ability to sustain focus long enough for the timely completion of tasks found in work settings. On the face of it, merely being in a relationship and becoming engaged to be married does not relate to this area of function. If the applicant was fully immersed in planning the numerous details associated with a wedding, then this could be an indication of good functioning in the area of CPP. However, no such evidence is before the Tribunal.
34Likewise, independence with self care does not directly impact an assessment of CPP as it does not involve the completion of tasks in a work setting. The Guides, at page 294, indicate that the ability to complete everyday household tasks may be considered in a CPP analysis. However, this too is not directly on point as self care is not a “household task.” Even so, I note that Ms. Hisey’s IE report includes a photograph of the applicant’s mirror where a note is posted with step by step instructions for applying make-up. This shows that the applicant is unable to sustain focus and complete a routine self care task without this accommodation. This is consistent with poor CPP.
35The applicant cooks some dinners for her family and this can be properly considered as a household task. The applicant’s ability to cook is impaired by her mental and behavioural disorders. She told Dr. Levitt that she needs to rest all day in order to be able to prepare dinner for her family and that after dinner she begins her bedtime routine. The applicant can complete the household task of cooking a meal for her family, but this activity is unusually fatiguing for her. In my view, this is also consistent with poor CPP.
36The respondent notes that the applicant was able to appropriately answer questions and follow instructions during the IE and submits that this indicates good functioning. I disagree. The manner in which the applicant answered questions demonstrates significant functional limitations. Ms. Hisey described the intake process as “tedious.” The applicant jumped from topic to topic and she returned to her fear of the future over and over. She had difficulty getting out her thoughts, difficulty finishing her sentences, tripped over her words, and had word finding problems. In regard to CPP, this behaviour indicates a lack of focus and concentration. There is an indication that the applicant’s emotional regulation is also significantly compromised. She went from smiling to “bursting into tears.” Overall, the manner in which the applicant answered questions during the IE shows poor CPP.
37The respondent submits that the applicant has gone on vacations four or five times since the accident and that this is an indication of good functioning. Again, I disagree. The applicant travelled with other people. The amount of assistance provided by those other people to the applicant and the manner in which she demonstrated good functioning during the vacation is unknown. Consequently, I give little weight to the mere fact that the applicant has travelled post-accident. On its own, this provides no meaningful insight for an assessment of CPP.
38The Vocational Assessment, dated May 7, 2021, of Ms. Teri Pereira, vocational evaluator, states that the applicant “advised that she has been working at her father’s company Plastina Drain & Concrete Corp doing accounts payable and receivable.” The respondent also notes that the applicant received income from her father’s company. No other details are provided. Without more context it is not possible to understand the nature of this work and determine whether it impacts an assessment of the applicant’s functional abilities in CPP. Consequently, l give little weight to this evidence.
39The respondent further submits that there is evidence showing the applicant is feigning her symptoms. In particular, the respondent cites the performance validity tests of Dr. Lubbers. His testing reveals “less than full effort when compared with relevant patient samples, suggesting an embellished presentation of difficulties.” I note that Dr. Lubber’s statement is mildly worded and not unequivocal. The suggestion of embellishment is not a clear indication of feigning symptoms. In his Addendum, dated Aril 5, 2021, Dr. Levitt states that Dr. Lubbers provided the raw test data to him. Five validity scales were used and there is no suggestion of over reporting symptoms on three of those scales. The other two scales indicate possible over-reporting of symptoms. In my view, this evidence shows there is mere possibility of over-reporting. This is not enough to justify a finding, on a balance of probabilities, that the applicant lacks credibility in reporting her symptoms.
40The evidence shows, on balance, that the applicant’s impairments significantly impede useful functioning in the area of CPP. For this reason, I find that she has a Class 4 marked impairment rating in the area of CPP. As such, there is no need to consider other areas of function, including the area of adaptation. Consequently, given the accident date, the relevant version of the Schedule and the Court of Appeal’s decision in Pastore v. Aviva, 2012 ONCA 642, I further find that the applicant is catastrophically impaired.
Post-104 Income Replacement Benefit (IRB)
41To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
42The applicant submits that she has suffered a complete inability to engage in any employment for which she is reasonably suited. Prior to the accident, she worked in retail. She attempted to resume her part-time position after the accident, but was unsuccessful due to her psychological impairments, in particular, because of her limitations in concentration and focus, limited use of computers and screens, and interacting with others. Working from home is not an option because it would require using a computer. Moreover, the applicant is unable to provide the reasonable work hours and productivity that real world employers demand.
43The respondent submits that it paid an IRB of $185.00 per week after the two-year mark until May 7, 2021 based on a set of IEs. The results of the IEs establish that the applicant has the functional ability to engage in employment for which she is reasonably suited.
44I find that the applicant is entitled to a post-104 IRB. The evidence establishes, on a balance of probabilities, that her psychological impairments cause her to suffer a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
45The applicant has a two year diploma in marketing and experience working in retail stores. As such, there are a wide variety of jobs in the fields of marketing and retail for which she is qualified. However, as noted above, the applicant has accident related psychological impairments which make her unable to engage in employment.
46In an IE, dated May 7, 2021, Dr. Lubbers diagnoses the applicant with the same psychological disorders that were present when he previously examined for a CAT assessment in 2020. He opines that these impairments affect regulation, sensitivity to pain, somatic complaints, sleep and energy, and behavioural initiation and motivation. He is optimistic on her recovery, but is unable to estimate the duration of the applicant’s impairment. He further opines that these impediments would not render her incapable of engaging in any employment for which she is suited; however, Dr. Lubber provides no explanation as to how he reached this conclusion.
47His report documents the applicant’s repeated failures in the realm of employment. She lost her job in retail. She was offered the opportunity to return to a seasonal retail job, but declined because she did not feel up to it. She started a drop shipping business with her sister in 2018, but abandoned this endeavour soon after because it was giving her migraines.
48Dr. Lubber does not highlight any improvement in regard to her psychological disorders. If there has been no improvement and the applicant was previously unable to work because of her psychological impairments, then Dr. Lubber’s report should provide an explanation to make clear why he believes that she can work. This was not done. As such, I give no weight to his conclusion because it is inconsistent with the evidence.
49The respondent also relies on the Vocational Assessment of Ms. Pereira. She also concludes that the applicant is able to engage in suitable employment. As was the case with Dr. Lubber’s report, Ms. Pereira provides no explanation as to how the applicant can be employed despite the challenges caused by her psychological disorder. Consequently, I find that this report is not persuasive.
50Consequently, I find, on a balance of probabilities, that the applicant is entitled to a post-104 IRB of $185.00 per week from May 7, 2021 and ongoing because her psychological impairments cause her to suffer a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
Attendant Care Benefit (ACB)
51Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
52The applicant relies on the assessment, dated January 7, 2021, of Raymond Wong, occupational therapist, which indicates that she is unable to perform some personal care tasks.
53The respondent made no submission on the applicant’s entitlement to an ACB.
54I find that the applicant is entitled to an ACB of $205.66 per month.
55I note that Mr. Wong prepared his report without reviewing any medical information. In my view, this seriously compromises his ability to understand and assess the applicant’s functional abilities in regard to self care. Moreover, the report of Mr. Wong does not say whether he assessed the applicant in-person, virtually, or used some other means. This too is problematic because the means by which he obtained the information in the report remains unknown.
56Some of the information provided by Mr. Wong is inconsistent with the other evidence. For example, he opines that the applicant is unable to cook. This contradicts the applicant’s statements to CAT assessors where she states that she can cook and, in fact, cooks suppers for her family.
57Mr. Wong opines that the applicant is unable to bath herself and unable to cut her toenails.
58Mr. Wong also recommended 180 minutes per day of attendant care because unpredictable dizziness and fainting episodes make her unable to respond to emergencies.
59Ms. Hisey met the applicant for an in-person CAT assessment at the applicant’s home. She reviewed scores of medical documents prior to completing her report. The applicant told Ms. Hisey that she is independent with bathing by using adaptive techniques and the applicant demonstrated the ability to clip her toenails.
60Ms. Hisey opines that the applicant also did not present with any cognitive or physical limitations that prevent her from exiting the home during an emergency.
61In my view, the report of Ms. Hisey is more reliable. She reviewed extensive medical information and is known to have assessed the applicant in person. For these reasons, I give more weight to her report and find that the applicant does not require attendant care for grooming, bathing, or basic supervisory care.
62Ms. Hisey reports that the applicant has been unable to resume cleaning the bathroom after use, nor changing bed linens. Mr. Wong identifies attendant care needs in both of these areas. Consequently, the evidence shows that these two items of attendant care are reasonable and necessary. As such, I find that the applicant is entitled to attendant care for level 2 hygiene.
63Mr. Wong allots 15 minutes per day for bathroom hygiene and 15 minutes per day for bedroom hygiene. In my view, the amount of time allotted for these two items is reasonable.
64The applicant’s attendant care is calculated as follows:
Level 2: 205 minutes/60 = 3.42 hrs x 4.3 = 14.69 hrs/month x $14.00 rate = $205.66 per month
65To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
66There are 14 treatment plans in dispute. The applicant submits that medical evidence and a CAT finding justify the applicant’s entitlement to these plans.
67The respondent submits that the non-CAT funding limit of benefits has been reached. Consequently, the applicant is not entitled to these plans.
68I find that the applicant is not entitled to these treatment plans. The CAT finding in this case allows the applicant access to funding for treatment that exceeds the previously exhausted non-CAT limits. However, the applicant still has the burden of establishing that these plans are reasonable and necessary.
69The applicant submits that “medical evidence” supports the disputed plans but makes no pinpoint references in the evidence for any plan. The applicant cannot ask the Tribunal to connect the dots and make her case. Doing so inappropriately places the Tribunal in the role of her advocate. It is up to the applicant to make specific citations in the evidence and explain why it supports a specific treatment plan. Consequently, I find that the applicant has not established, on a balance of probabilities, that the treatment plans are reasonable and necessary.
Interest
70The applicant is entitled to interest in accordance with s. 51 of the Schedule for an IRB of $185.00 per week from May 7, 2021 and ongoing.
Award
71Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.
72The applicant makes no submissions on why an award should be granted. As such, there is no basis to find the respondent liable to pay an award.
ORDER
73I order the following:
i. The applicant is catastrophically impaired under Criterion 8.
ii. The applicant is entitled to a post-104 IRB of $185.00 per week from May 7, 2021 and onwards.
iii. The applicant is entitled to an ACB of $205.66 per month.
iv. The applicant is not entitled to any treatment plans.
v. The applicant is entitled to interest for the IRB.
vi. The respondent is not liable to pay an award.
Released: September 28, 2023
Harry Adamidis Adjudicator