Paesano v. Coseco Insurance Company, 2023 CanLII 96371

Citation: Paesano v. Coseco Insurance Company, 2023 ONLAT 22-001009/AABS

Licence Appeal Tribunal File Number: 22-001009/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:

Neila Paesano Applicant

And

Coseco Insurance Company Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Neila Paesano, Applicant Imtiaz Hosein, Counsel

For the Respondent: Nickki Fillipone, Adjuster Daniel M Himelfarb, Counsel Joseph Tumini, Co-Counsel

Court Reporter: Prashanthi Thambipillai Network Reporting

HEARD: by Videoconference: May 23 to June 1, 2023

OVERVIEW

1Neila Paesano, the applicant, was involved in an automobile accident on September 1, 2018, and sought benefits from Conseco Insurance Company, (the respondent) 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, Coseco Insurance Company, 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. The applicant purchased optional benefits. Therefore, her entitlement to the other benefits in dispute are not dependent on a finding that she is CAT impaired.

PRELIMINARY ISSUE

2The respondent raised the following preliminary issue:

i. Is the applicant barred from claiming IRBs because she failed to apply for and/or qualify for the benefit within 104 weeks from the date of the accident.

ISSUES

3The issues in dispute at the hearing are:

1. Has the applicant sustained a CAT impairment as defined by the Schedule?
2. Is the applicant entitled to an ACB in the amount of $7,577.26 per month from September 1, 2018, to date and ongoing?
3. Is the applicant entitled to an IRB in the amount of $400.00 per week from August 19, 2021, to date and ongoing?
4. Is the applicant entitled to medical benefits and cost of examination expenses proposed by Okell Rehabilitation Services in the following treatment plans/OCF-18s (“plans”): a) $3,848.56 for occupational therapy submitted December 30, 2020; b) $2,793.50 for occupational therapy submitted November 17, 2021; c) $10,563.14 for occupational therapy submitted October 19, 2021; and d) $20,220.00 for a catastrophic determination assessment submitted December 9, 2021?
5. Is the applicant entitled to medical benefits proposed by Physio First in the following plans: a) $3,860.22 for massage therapy submitted June 11, 2021; and b) $2,727.04 for physiotherapy submitted November 17, 2021?
6. Is the applicant entitled to $605.13 for the completion of an OCF-3 dated November 8, 2021?
7. 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?
8. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4After considering the testimony of all witnesses and reviewing all the evidence I find:

1. The applicant is barred from claiming IRBs because she failed to apply for and/or qualify for the benefit within 104 weeks from the date of the accident.
2. The applicant did not sustain a CAT impairment.
3. The applicant is not entitled to any of the medical benefits, examination expenses, interest, or an award.
4. The applicant is not entitled to ACBs to date, because she has not submitted proof that the benefit has been incurred. I find she is entitled to ACBs in the amount of $905.34 per month, upon submitting proof that the benefit has been incurred.

PROCEDURAL ISSUES

The respondent’s motion to alter the applicant’s witness list was allowed.

5The respondent brought a motion opposing the applicant’s witness list and her intention to call three adjusters and Dr. Longhorn Geddes, a s. 44 insurer examiner (“IE”) to testify prior to the applicant calling her own witnesses. One of the adjusters, as well as Dr. Longhorn Geddes, were on the respondent’s witness list and none of the proposed witnesses were properly served with summonses by the applicant.

6I determined that the applicant was not permitted to call the two adjusters or Dr. Longhorn Geddes as witnesses before she presented her own evidence.

7With respect to the adjusters, the respondent argued that requiring the attendance of three adjusters is repetitious and unnecessary. The respondent intended to call adjuster Nickki Fillipone who has full knowledge of the file and could speak to the adjusting of the benefits in dispute. It submits that there was no basis to call the adjuster before the applicant presented her evidence with respect to her entitlement to benefits.

8The applicant argued she had a right to call all three adjusters because Ms. Fillipone is a new adjuster on the file and the others could better speak to how the disputed benefits were adjusted. Further, the testimony of each adjuster was required to understand the decision-making process behind the denial of her claims and was necessary to substantiate her claim for an award. The applicant requested that the hearing be adjourned to bring her request to summons the adjusters into compliance with Rule 8 of the Licence Appeal Tribunal’s Common Rules of Practice and Procedure (“Rules”).

9I agreed with the respondent that it was not necessary to call three adjusters to testify as the evidence would be overly repetitious. I found that Ms. Fillipone could provide sufficient evidence regarding how this claim was adjusted to address the award issue.

10I also did not permit the applicant to call the adjuster as a witness before presenting her own evidence since: a) she did not comply with the Rules as the summonses were served by email and were served on the adjusters only two business days prior to the hearing; b) the adjuster’s evidence was not relevant to the applicant’s entitlement to accident benefits; c) the respondent had undertaken to call Ms. Fillipone as a witness; and d) requiring the respondent’s adjuster to respond to the applicant’s allegations related to the handling of the file before the applicant placed the facts leading to those allegations into evidence would be unfair.

11With respect to Dr. Longhorn Geddes, the respondent argued that the onus rests with the applicant to prove entitlement to accident benefits and that she was required to present her evidence before the respondent should be required to respond. Further, if Dr. Longhorn Geddes were to give evidence before the applicant has presented her case, the evidence may lack an evidentiary foundation and Dr. Longhorn Geddes may have to be recalled to give further evidence once the applicant’s case was complete. In addition, Dr. Longhorn Geddes’ attendance was already arranged by the respondent, and it would be unreasonable to require her to change her schedule on such short notice in the circumstances.

12The applicant argued that that it would be a denial of procedural fairness to not allow her to call her case the way she sees fit and that it is well established law that there is no property in a witness.

13I ordered that the applicant must present her evidence before Dr. Longhorn Geddes was called as a witness. I found that the summons served on Dr. Longhorn Geddes was improper and that she should not be called as a witness until the appellant’s evidence had been presented. The applicant had the opportunity to arrange Dr. Longhorn Geddes’ attendance at the hearing in accordance with the Rules and did not. To have Dr. Longhorn Geddes present her evidence before the applicant may have required Dr. Longhorn Geddes to return to give evidence after the applicant’s case was complete, which would be unnecessary and inefficient. Further, the applicant was not prejudiced by this because she would have the opportunity to cross examine the doctor.

The respondent’s request for an exclusion order was granted.

14After I made the above ruling, the applicant advised that she planned on calling her son to testify first. No explanation was provided for why she would not be testifying first or that there was a scheduling conflict making her son unavailable to testify on the remaining hearing dates. The respondent then requested an order excluding the applicant from the hearing during her son’s testimony to avoid collusion because he is one of the applicant’s caregivers in relation to the attendant care benefit. The applicant opposed this request and submitted that this would be procedurally unfair because she has a right to fully participate in the hearing.

15I granted the respondent’s request and ordered that the applicant be excluded from the hearing during her son’s testimony. While I agree that the applicant has a right to fully participate in the hearing, I found that, because her son was testifying to corroborate her position on the benefits in dispute, an exclusion order was warranted to ensure the independence of testimony. If the applicant wanted to be present for her son’s testimony, then that could be accomplished by her testifying first and then presenting her son so no exclusion order would be needed. The applicant also provided no reasonable explanation for calling her son before her own evidence. While I agree generally that the applicant may advance her evidence in an order she sees fit and without undue interference, procedural fairness applies to both parties.

The late submission of the applicant’s supplementary document brief was allowed.

16The respondent opposed the applicant’s submission of a supplementary document brief which was served on it the weekend prior to the hearing. It submitted that it would be procedurally unfair to allow the applicant to rely on these records because some of the records it contained were just served on it for the first time. The applicant argues that she could not serve these records earlier because they pertain to her recent admission to hospital which happened shortly before the hearing. The applicant maintains that these records were relevant because she was admitted to the hospital on April 20, 2023, after experiencing strong thoughts of suicidal ideation and remained in the hospital for 17 days. She asserted that these records were relevant to her accident-related psychological impairment and the benefits in dispute.

17I admitted the supplementary document brief as the records are relevant to the issues in dispute. Further, some of the records had been previously served on the respondent and as a result it was not surprised by the contents. Regarding the recent hospital admission, I find it was an unforeseen event which the applicant did not have control over.

The applicant’s request to call Dr. Berkhout as a witness was denied.

18The respondent opposed the applicant’s request to call Dr. Berkhout as a witness, which was made on the second day of the hearing. Dr. Berkhout was the applicant’s treating physician during her recent admission to the hospital. The applicant submitted that Dr. Berkhout’s testimony was relevant to the issues in dispute and she could not have provided more notice to the respondent because this was a recent development. The respondent argued that it was inappropriate to call last minute witnesses and provide notice on the second day of the hearing. Further, it would not be procedurally fair as it had just recently received Dr. Berkhout’s clinical notes and records (“CNRs”).

19I did not allow Dr. Berkhout to testify. Rule 9.2 (b) provides that a party must provide notice of the witnesses it intends to call along with a brief description of that witness’ anticipated testimony at least 10 days prior to the hearing. Rule 9.4 prohibits a party from calling a late witness to give evidence without the Tribunal’s consent. The applicant had Dr. Berkhout’s CNRs by May 10, 2023 but only gave notice that she intended to call him as a witness on the second day of the hearing. I find it would be procedurally unfair to the respondent to allow the applicant to call Dr. Berkhout as the respondent has not been provided with sufficient notice and has been prevented from properly preparing for this witness’ testimony.

The applicant’s motion for production of records and request for summons was denied.

20On day five of the hearing, the applicant brought a motion for the production of numerous documents including the complete files, draft IE reports, invoices, contracts, and copies of all communications between the respondent and assessment companies Magniva and Focus Assessments (“Focus”) who arranged and completed the section 44 IEs. The applicant’s request followed the testimony of Dr. Mustafa, IE neurologist, who admitted under cross-examination that he had prepared a draft report which determined the applicant’s whole person impairment (“WPI”) was 33% instead of the 22% allotted in the doctor’s final report. Dr. Mustafa testified that Darren Parson, editor, and occupational therapist at Magniva, requested that he amend his report to avoid double counting of impairments because a physiatrist was addressing the impairments to the applicant’s cervical spine. The doctor also acknowledged that he could not confirm whether he reviewed the final CAT IE to determine whether the impairments he originally assigned were accounted for.

21The applicant submitted that pursuant to Rule 9.3 the Tribunal may order a party at any stage of the proceeding to disclose any document or thing the Tribunal considers relevant to the issues in dispute. The applicant’s arguments in support of her request can be summarized as follows:

a) Section 45(2) of the Schedule supports that CAT assessments shall be conducted by a physician and that physician can only be assisted by such other regulated health professional as he or she may reasonably require. She argues that Darren Parson’s involvement in the CAT assessments breached this requirement;

b) She was never notified of Magniva’s involvement in arranging the IEs. Dr. Mustafa’s testimony supports that the doctor contravened the College of Physicians and Surgeons Policy on delegation of Controlled Acts which places an obligation on physicians to be fair, objective and non-partisan and transparent, accurate and clear when completing assessments as well as a doctor’s obligation to retain records; and

c) Finally, she submits that she made efforts to obtain these records in advance of the hearing, which were thwarted by the Tribunal because the adjudicator who conducted the case conference denied the applicant’s request for these documents on the basis that she did not find them relevant to the issues in te.

22The applicant asserted that these records are relevant and are necessary for a fair, open and accessible hearing that allows for participation by all parties.

23The respondent argued that the applicant never requested the complete files of the section 44 IE assessors in advance of the hearing. It asserted that it was not appropriate to make this request on day 5 of an 8-day hearing. Further, the respondent did not have access to the records of Focus or Magniva and many of the records requested did not have any bearing on whether the applicant sustained a CAT impairment. In addition, the applicant has had its adjuster’s log notes and notes from Smart Simple (the portal used to arrange IEs) for some time and could have brought a motion for the records in advance but did not. Finally, the respondent submitted that if the applicant’s request was allowed the applicant should produce the entire file of Okell Rehabilitation Services (“Okell”). Dr. Rogenstein, who prepared the CAT executive summary on behalf of Okell was expected to testify and was not called by the applicant at the last minute. As a result, the respondent was unable to cross-examine the doctor on the final CAT ratings assigned.

24Although I found that the records requested by the applicant are relevant, I declined to order the respondent to produce them at this stage in the process. Because the request was made late, many of the documents requested are not in the respondent’s possession and obtaining them would result in the need for an adjournment. This would result in unreasonable delay in a final determination being made in this matter. Further, I found the delay in a determination being made in this matter more prejudicial to both parties than the potential probative value of these records. Dr. Mustafa’s testimony was already on the record and the applicant was entitled to make submissions on how it related to the CAT or award issues and the weight to be given to his evidence. Moreover, the change Dr. Mustafa made to his report had no impact on the final outcome. Therefore, I do not find the applicant is prejudiced.

25Finally, while some of the records requested may have been requested at the case conference, many of the documents were not. I agreed with the respondent that the applicant could have brought a motion in advance of the hearing requesting many of these records but elected not to do so. I will now address the preliminary issue raised by the respondent.

ANALYSIS

The applicant's claim for IRBs is barred because she failed to apply for and/or qualify for the benefit within 104 weeks from the date of the accident.

26Section 5(1)1. of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

27Section 32(1) of the Schedule provides that where a person intends to apply for a benefit, they must notify the insurer of their intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practical after that day. Section 36(2) provides that an insured claiming a specified benefit shall submit a completed OCF-3. Section 36(3) provides that an insured who fails to submit a completed OCF-3 is not entitled to a specified benefit for any period before one is submitted.

28The evidence demonstrates that the applicant returned to work on September 17, 2018, 16 days after the accident. She did not notify the respondent that she suffered a substantial inability to perform the essential tasks of her employment as the result of an impairment suffered in the accident until August 17, 2021, when she submitted an OCF-2 completed by her employer. This was followed by an OCF-3 submitted November 5, 2021, completed by Dr. Vaidyanath, which indicated that she was substantially unable to perform the essential tasks of her employment within 104 weeks of the accident.

29On November 12, 2021, the respondent sent the applicant an explanation of benefits (“EOB”) denying her claim for IRBs on the basis that the OCF-3 was received over 104 weeks since the onset of her disability. It also indicated that as of the date the OCF-3 was submitted it was 167 weeks post accident and that the OCF-2 indicated that the applicant was able to perform the tasks of her pre-accident employment for over 156 weeks after the accident, until August 19, 2021.

30The applicant submits that s. 6(2)(b) of the Schedule supports her position that she can qualify for post-104 IRBs even if she did not qualify for pre-104 IRBs. She relies on the Court of Appeal’s decision in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (“Tomec”) in support of her position that the discoverability rule applies to her claim for an IRB. She states that she cannot be barred from claiming a benefit prior to becoming eligible to claim it. Further, she asserts that the respondent did not provide adequate notice of the consequences of failing to submit an OCF-3 within 104 weeks of the accident. Finally, she argues that the respondent requested that she attend insurer examinations (“IEs”) to address her post-104 entitlement to IRBs and that this request was in bad faith since it is now taking the position that she did not apply for the benefit in time and is disqualified from claiming it.

31I agree with the respondent’s interpretation of the Schedule for the following reasons.

32I find that the clear wording in s. 5(1)1. of the Schedule states that an insured must suffer a substantial inability within the first 104-week period post-accident to qualify for post-104 IRBs.

33In C.G. v. Pembridge Insurance Company, 2020 ONLAT 19-010979/AABS (“C.G.”) and Dooley v. Aviva General Insurance, 2021 ONLAT 20-006951/AABS (“Dooley”), the Tribunal determined that the insured did not comply with s. 36 of the Schedule by applying for the IRB within the 104 weeks where they did not submit an OCF-3 during that time period supporting entitlement to the benefit. Furthermore, those decisions confirm that the insured did not meet the eligibility requirements as per s. 5(1)1. of the Schedule that an individual sustain a substantial inability to carry out the essential tasks of their employment within 104 weeks in order to claim any IRB, including for a period after 104-weeks post-accident.

34In this case it is undisputed that the applicant returned to full time work 16 days following the accident and continued to work for almost three years until August 2021. There is insufficient no evidence before me to support that the applicant had a substantial inability to carry out the essential tasks of her employment within the 104-week period, or that she applied for the benefit within that period.

35I do not accept the applicant’s argument that s. 6(2)(b) of the Schedule supports her position. That section provides that an insurer is not required to pay an IRB after the first 104 weeks of disability. In my view, the underlined portion of that section supports the respondent’s interpretation. Section 6(2)(b) simply sets out a more stringent test for an insured’s “ongoing entitlement” to the benefit. In addition, I do not find the principle of discoverability discussed by the Court of Appeal in Tomec applicable to the present case. In Tomec, the Court determined that the limitation period for an insured to dispute past entitlement to an attendant care benefit was not statute barred because their entitlement to the benefit was dependent on CAT impairment status. In the present case, the applicant’s claim for an IRB is not dependant on her application for CAT status. As a result, I do not find this decision applicable to the present case.

36Finally, I do not accept the applicant’s argument that the respondent did not provide sufficient notice that her claim for IRBs would be barred if she did not submit an OCF-3 within 104 weeks. Based on the facts before me, I find the respondent provided the applicant with sufficient information to explain what benefits were available to her and the time limits for claiming same. This notice was contained in correspondence sent to the applicant September 4, 2018 and October 1, 2018. I agree with the respondent that it does not have the obligation to remind its insured to submit an OCF-3 if a claim for a specified benefit is to be made. Further, the respondent’s failure to outline the deadline to apply for the benefit does not prevent it from relying on the requirements of the Schedule in determining whether the applicant qualifies for the benefit. Finally, the fact that the respondent requested that she attend IEs to address her post-104 entitlement to IRBs has no bearing on the fact that the applicant did not qualify for the benefit under s. 5(1)1 of the Schedule.

37For all of the above-reasons, I find the applicant is barred from claiming IRBs because she failed to apply for and/or qualify for the benefit within 104 weeks from the date of the accident.

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

38On December 7, 2021, the applicant applied for a CAT determination under paragraphs 6, 7 and 8 of section 3.1(1) of the Schedule, referred to as Criterion 6, 7 and 8, respectively.

39This matter is complicated by the fact that the applicant had a significant pre-accident medical history. She was involved in a prior accident in 2016 in which she sustained very similar injuries to those sustained in the subject accident. For example, she sustained a concussion which resulted in post-concussion syndrome, an impairment to her cervical spine which resulted in bilateral shoulder pain and right arm numbness and chronic pain, as well as severe headaches. Furthermore, she was also diagnosed with major depressive disorder and anxiety.

40There were also various pre- and post-accident events in the applicant’s life that may have had an impact on her pre- and post-accident psychological condition. For example, she experienced the loss of her mother and dog in 2017, there is evidence of marital discord both pre- and post-accident, her husband had a stroke in 2021 and she has an ailing 93-year-old father. The respondent argues that the subject accident is not the primary cause of the applicant’s current impairments. Instead, it submits that the applicant’s current condition is as a result of the 2016 accident and the other pre- and post-accident factors. The subject accident is not the cause of the impairments she alleges in support of her application for CAT status or resulting functional limitations.

41The applicant acknowledges that she had health issues pre-accident. However, she asserts that her symptoms had improved, and the accident exacerbated her pre-accident concussion which resulted in more serious symptoms. Further, the accident exacerbated the impairment to her cervical spine, right shoulder and arm, as well as her left shoulder. She submits that these impairments resulted in increased headaches and that the physical ailments exacerbated her major depressive disorder resulting in new psychological impairments such as post-traumatic symptom disorder (“PTSD”) and somatic symptom disorder. She contends that she experienced chronic pain as a result of the cervical spine impairment which resulted in decreased function which led to her inability to work. Her inability to work further exacerbated her psychological condition.

42In my view, the material contribution test is not the appropriate test to be applied in this matter. The applicant spent extensive time in closing submissions arguing this point. However, I find the case law clear that the material contribution test is to be used in rare situations where it is impossible to determine the cause. I do not find this applies to the current case. It is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident she would not have suffered the impairments which form the basis for her application for CAT status. The court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability and that the accident need not be the only cause of the impairment but must be a necessary cause.

43I find that the causation test has been met in this case because both parties’ CAT assessors diagnosed the applicant with both physical and psychological impairments. However, the parties disagree on whether certain impairments were caused by the accident, the severity of the diagnosis and the impact on function. Therefore, I will focus my analysis on which physical and psychological impairment ratings are supported by the medical record in determining whether the applicant sustained a CAT impairment as a result of the accident.

The applicant does not meet the CAT threshold under Criterion 6.

44In order to 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 WPI.

45The applicant relies on the CAT assessment report dated August 11, 2022, commissioned by Okell. The assessments were completed by Dr. Blitzer, pain specialist, Laura Burnett, occupational therapist (“OT”), Dr. Kiraly, psychiatrist, and Dr. Rogenstein, general practitioner, prepared the executive summary. The Okell assessors determined that the applicant had a 58% WPI under Criterion 6.

46The respondent relies on the CAT IE assessment report dated November 23, 2022, commissioned by Focus. The IE assessments were completed by Dr. Mathoo, orthopaedic surgeon, Dr. Mustafa, neurologist, Joan Saunders, OT and Dr. Longhorn Geddes, psychologist.

47The following chart highlights the WPI ratings assigned by each parties’ assessors under Criterion 6 and 7, my finding in relation to each, and my rationale will follow.

	Applicant’s CAT Summary	Respondent’s CAT Summary	Tribunal’s Finding
CRITERION 6
Cervicothoracic Spine	15%	5%	15%
Thoracolumbar Spine	5%	0	0
Lumbosacral Spine	5%	5%	5%
Left Shoulder Impairment	7%	0	0%
Right Shoulder Impairment	4%	0	4%
Right Hip Impairment	1%	0	0
Headaches	15%	0	0
Mastication and Glutination	5%	0	0
Dizziness	7%	0	0
Tinnitus	2%	0	0
Mental Status and Cognitive Impairment	7%	(Cerebral Impairment) 14%	14%
Sleep	7%	9%	9%
Medications	3%	3%	3%
Total WPI	58%	32%	41%
CRITERION 7
Psychiatric Rating	40%	10%
TOTAL COMBINED RATINGS
TOTAL WPI	75%	39%	41% WPI

48I find the CAT reports and opinions of both parties’ assessors had their limitations.

49I find the ratings assigned by the applicant’s assessors inflated in relation to both her accident-related physical and psychological impairments. I also find many of the ratings assigned by Dr. Blitzer unsupported by the medical record and the methodology outlined in the Guides. Dr. Blitzer assigned many ratings for various impairments that I do not find were in any way connected to the accident. For example, I was not directed to any medical evidence supporting the doctor’s ratings for digestion, globus and mastication or coronary artery disease. Dr. Blitzer testified that when he assesses a patient, he assesses the person’s current state at that time. Dr. Blitzer did not carry out any causation analysis in assessing whether the ratings assigned were as a result of the accident. I do not find this helpful to the applicant’s case and find that it diminishes the reliability of the doctor’s ratings. The doctor also assigned WPI% ranges and did not choose a rating within the range.

50The case law and the Guides indicate that assessors should use their clinical judgment in selecting a precise rating within a range. During cross-examination Dr. Blitzer acknowledged that this was not done in the present case because he was missing information. I do not find Dr. Blitzer’s explanation persuasive. Instead, Dr. Rogenstein who prepared the executive summary for Okell selected the WPI% rating within the range. Dr. Rogenstein never examined the applicant, nor did the doctor testify to explain the ratings included in the executive summary or the rationale for selecting a particular number within the range. In my view this was not appropriate and decreases the reliability of the ratings assigned.

51Further, I find that the following WPI% ratings assigned by Dr. Blitzer were not supported by the methodology in the Guides or the medical record before me.

i) 5% for thoracolumbar spine. Dr. Blitzer assigned 5% based on the DRE II model because the applicant complained of tenderness in the thoracic spine during his physical examination. Dr. Blitzer acknowledged during cross-examination that there was no evidence of spasm or guarding in the records but subtle guarding during his physical examination. I find this WPI% rating is not supported by the medical evidence or warrants a DRE-II rating provided for in the Guides because the applicant’s symptoms are not consistent with it.

ii) 2% for tinnitus. In his report, Dr. Blitzer acknowledged that he did not detect any hearing issues but assigned this rating based on the applicant’s history of complaints. During cross-examination, Dr. Blitzer acknowledged that the applicant complained of tinnitus following the 2016 accident. The doctor also admitted that there was no evidence of hearing impairments in any of the documents reviewed or that this condition got worse following the 2018 accident. For these reasons, I do not accept this impairment rating.

iii) 7% for the left shoulder. I find this WPI% rating is not supported by the medical record. The applicant submits that she consistently reported left shoulder pain to assessors. I find this factor on its own does not support the WPI% rating assigned by Dr. Blitzer. While the applicant may suffer from left shoulder pain, I was not directed to any medical records to support that this was an objective accident-related impairment. For this reason, I do not accept this rating.

iv) 1% for the hips. Dr. Blitzer’s assigned an impairment for the applicant’s hip as there was evidence of trochanteric bursitis based on his physical examination which revealed tenderness over the right bursa. The doctor acknowledged during cross-examination that there was no evidence of bursitis of the hips in the medical records. For this reason, I do not accept this rating.

v) 15% for Headaches. The applicant suffered from severe headaches prior to the accident and was receiving botox injections. Post-accident her headaches increased in frequency and severity and she continued to receive botox injections. Based on the evidence before me it is difficult to assess the extent in which the applicant’s headaches increased post-accident. Dr. Blitzer’s report provided two separate ways in which the applicant’s headaches could be rated under the Guides. I did not find Dr. Blitzer’s initial or review reports helpful in explaining how he came up with the WPI% rating for headaches using the pain intensity-frequency grid in s.15.8 of the Guides. Further, a review of s. 15.8 of the Guides does not provide a WPI rating.

I do not find Dr. Blitzer’s testimony helpful in explaining how he rated 15% for headaches. Dr. Blitzer also used an alternative method and assigned 15% percent for occipital neuralgia. In his review report, he notes that the applicant has occipital neuralgia type headaches but then he applies a rating for the trigeminal nerve. During cross-examination the doctor admitted that occipital neuralgia is not referenced in any of the post-accident reports or medical records. What I find lacking in this case was a reference in the medical record which support this impairment. The applicant submitted the decision of this Tribunal in Syed v Security National Insurance Company, 2023 CanLII 26958 (ON LAT), in support of her position that the Tribunal has accepted ratings for occipital neuralgia or the trigeminal nerve where serious headaches exist even though there is no evidence of occipital neuralgia. I am not bound by this Tribunal’s decisions. Ultimately, because Dr. Blitzer does not diagnose these impairments, I do not accept the finding in Syed that a rating can be given by analogy.

Finally, Dr. Mustafa testified that he did not find any evidence of occipital neuralgia during his physical examination. I find that as a neurologist Dr. Mustafa would be the most qualified to assess this condition. Dr. Mathoo also testified that the Guides do not permit assigning a rating for headaches because they are subjective. Further, ratings for these symptoms are usually provided for under other impairment ratings under the different chapters as explained in s.15.9 of the Guides. I found this explanation more persuasive. As a result, I do not accept this rating.

vi) 5% for Mastication and Glutination. In his report, Dr. Blitzer referred to a hospital visit in 2021 where the applicant complained of this condition. This record was not submitted for my consideration at this hearing. From a review of the summary of this record, it does not appear that the applicant was diagnosed with this condition and the applicant did not explain how it is accident-related. As a result, I do not accept this WPI rating.

vii) 7% for Dizziness. Dr. Blitzer acknowledged during cross-examination that the applicant had this condition pre-accident but his assessment focussed on her current condition. He also agreed that his evaluation of vertigo was less thorough because his specialty is as a pain specialist with a focus on the musculoskeletal system. Dr. Blitzer was unable to point to any documents in the medical record to support that this condition got worse as a result of the accident. The progress reports of Dr. Vaidyanath, the applicant’s treating physiatrist, note that the applicant’s post-concussive symptoms were exacerbated as a result of the 2018 accident, but it is unclear to what extent her symptoms of dizziness increased to warrant this WPI% rating. During cross-examination, the applicant confirmed that she does not require assistive devices as a result of poor balance. Further, I was not directed to any reference in the medical records which support that the applicant has had any accidents from falling resulting in injuries. In addition, the reports do not note any balance issues. As a result, I do not accept this rating.

52I also find the respondent’s assessors underestimated the applicant’s impairments in some areas. For example, I accept the 15% WPI rating assigned by Dr. Blitzer over the 5% assigned by Dr. Mathoo for the applicant’s cervical spine. Although I acknowledge that the applicant sustained an impairment to her cervical spine and right shoulder as a result of the 2016 accident, the evidence supports that this condition was exacerbated following the 2018 accident. An EMG study of Dr. Steeves showed radiculopathy, which was also supported by Dr. Mustafa’s physical examination. Moreover, there were consistent reports that this impairment had an impact on the applicant’s right arm and shoulder. Consequently, I accept the rating assigned by Dr. Blitzer for the cervical spine and right shoulder.

53I also find that there was a lack of transparency in the respondent’s assessment process. For example, Dr. Mustafa acknowledged during cross-examination that in his original report his total impairment WPI% rating was 33% and that he edited his report based on the direction of an editor at the assessment company who advised him that certain impairment ratings were being dealt with by the physiatrist. In my view, Dr. Mustafa should have submitted his final report to Dr. Mathoo, who would then address why certain ratings were not accepted in the executive summary based on inconsistencies or double counting. This was not done. Dr. Mustafa also acknowledged that he never spoke with Dr. Mathoo about his report and did not review Dr. Mathoo’s IE to ensure that the ratings he originally assigned were accounted for. Despite this lack of transparency even if the 33% WPI assigned by Dr. Mustafa in his draft report was accounted for in the respondent’s final executive summary, the applicant would not have met the 55% CAT threshold under Criterion 6 or 7 based on the respondent’s assessments.

54However, even if I accept all of the other physical WPI% ratings assigned, I find the applicant’s WPI% rating is 41%. As a result, she does not meet the CAT threshold under Criterion 6. I will now address Criterion 7.

The applicant is not CAT impaired under Criterion 7

55In order to 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 set out 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.

56To obtain the WPI% rating under Chapter 14, three scales are administered by assessors to determine a person’s score which include 1) the Brief Psychiatric Rating Scale (“PRS”), 2) the Global Assessment of Function (“GAF”), and 3) the Psychiatric Impairment Rating Scale (“PIRS”). The median score is then taken from the three scales and represents a person’s total WPI% from a psychological perspective.

57The applicant relies on the assessment of Dr. Kiraly, psychiatrist, who diagnosed her with Major Depressive Disorder with anxious distress, Somatic Symptom Disorder, predominantly pain, severe, Post-Traumatic Stress Disorder and mild Neurocognitive Disorder due to traumatic brain injury and multiple etiologies. Dr. Kiraly administered the three scales outlined in Chapter 14, which when converted into a total WPI equalling 40%. The applicant argues that I should accept her expert’s rating because his diagnosis and ratings are more consistent with her psychological impairment based on the previous diagnoses in the medical file. Further, Dr. Kiraly correctly applied the causation test, whereas Dr. Longhorn Geddes did not as she concluded that many of Dr. Kiraly’s diagnoses pre-dated the accident and that the accident was not the sole cause of her impairment.

58The respondent relies on the assessment of Dr. Longhorn Geddes, psychologist, who diagnosed the applicant with an Adjustment Disorder with Mixed Anxiety and depressed mood, mild to moderate and features of specific phobias (vehicular type). By contrast, her scores on the psychiatric scales which when converted into a WPI% equalled 10%. The respondent submits that Dr. Longhorn Geddes’ opinion and WPI rating should be preferred because she administered psychometric tests with validity measures which are important in determining whether any accident-related psychological complaints are valid. The applicant’s results on the tests administered by the doctor were invalid which strongly support symptom exaggeration. Therefore, it submits that the applicant’s self-reports about her symptoms, which Dr. Kiraly relied on in rendering his opinion, are not reliable. It maintains that Dr. Kiraly’s assessment should be given less weight because he did not administer psychometric tests with validity measures. Finally, Dr. Kiraly’s methodology in administering the 3 scales under the Guides are flawed because the doctor let the applicant rate herself on the BPRS which resulted in the highest possible score. Further, her results on the PIRS were inconsistent with the applicant’s function and the impairment ratings assigned by the doctor under Criterion 8.

59I am persuaded on a balance of probabilities that the applicant has developed Somatic Symptom Disorder as a result of the accident and likely PTSD as this diagnosis is supported by other psychological practitioners throughout the file. However, the fact that I accept these diagnoses does not mean she meets the CAT threshold. As already highlighted above, I find that the accident exacerbated the applicant’s pre-existing physical impairments in her cervical spine resulting in increased pain and radiculopathy. Further, she sustained a second concussion in this accident which Dr. Mustafa agreed resulted in a cognitive impairment.

60Nevertheless, I reject both Dr. Kiraly and Dr. Longhorn Geddes WPI% ratings under Criterion 7. While I also have concerns about Dr. Longhorn Geddes’ report regarding Criterion 7, the burden of proving CAT impairment rests with the applicant. I find that she has not proven on a balance of probabilities that she is CAT under Criterion 7 for the following reasons.

61I find that Dr. Kiraly’s WPI 40% rating for the applicant’s psychological impairment was inflated. Further, I am not convinced that the methodology employed by the doctor in administering the BRPS was in accordance with the instructions set out in the Guides. Regarding the BRPS, Dr. Kiraly admitted under cross-examination that the applicant scored herself under questions 1 to 14, and that he simply checked off the boxes. While the form itself indicates that questions 1 to 14 are based on the patient’s self-reports, an appendix in the Guides provides more detailed instructions to assessors for how the BRPS is to be administered. For example, pages 369 to 381 of the Guides provide assessors with advice for probing questions to ask and definitions for the different categories of symptom severity to ensure the patient’s self-reports align with the ratings. In the present case, I am not convinced that it was carried out in this manner.

62Dr. Kiraly acknowledged during cross-examination that he was unsure if he complied with the respondent’s request for the production of his raw test data. He received the request for these records but could not confirm if it was sent. I find this information would have been helpful in clarifying whether Dr. Kiraly followed the methodology in the Guides.

63I find that the applicant’s results on the PIRs administered by Dr. Kiraly was inconsistent with her actual level of function. For example, the doctor rated the applicant’s psychological impairments as severe in the domains of social and recreational activities, travel, social functioning, concentration, persistence and pace and adaptation. Under travel the PIRS defines a person with a severe impairment as finding it “extremely uncomfortable to leave own residence even with a trusted person.” The applicant testified that she continued to drive to and from work for almost three years post-accident and still drives on occasion. In addition, surveillance evidence supports that she independently takes her dog out for brief walks, regularly visits her father, and can go to the grocery store. The applicant admitted this under cross-examination. I find the applicant’s impairment is more compatible with a mild impairment which the PIRs defines as “can travel without support person but only in a familiar area such as shops or a neighbor.”

64Under social functioning the PIRs defines a person with a severe impairment as being “unable to form or sustain long-term relationships. Pre-existing relationships ended. Unable to care for dependents (e.g. children, elderly parent).” The evidence supports that the applicant continues to have a close relationship with her husband, children and father, which I will discuss in greater detail when I discuss social functioning under Criterion 8. I find the applicant’s function more compatible with a mild impairment which is defined as “existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.” For these reasons, I do not accept Dr. Kiraly’s rating of 40%.

65In contrast, I find that Dr. Longhorn Geddes likely underestimated the applicant’s scores on questions 1 to 14 on the BRPS. Further, I agree that she did not apply the proper causation test in her finding that the accident was not the sole cause of the applicant’s psychological impairment. However, as highlighted above, it is the applicant’s onus to prove she meets CAT status under Criterion 7. Even if I accept that Dr. Longhorn Geddes’ report is flawed the burden of proof does not shift to the respondent.

66For the reasons given above, I do not accept the ratings assigned by either assessor. Therefore, I am unable to determine what the applicant’s WPI% is under Criterion 7 because it is beyond my scope to select an arbitrary number based on the evidence before me. As a result, the applicant has not met her onus in proving on a balance of probabilities that she meets the 55% threshold to qualify for CAT status under Criterion 7.

The applicant did not sustain a CAT impairment under Criterion 8

67In order to meet the threshold for a CAT impairment under Criterion 8, an individual must have sustained three marked (class 4) impairments out of the four spheres of functioning or one extreme (class 5) impairment as a result of the accident due to a mental and behavioural disorder. These impairments are assessed under Chapter 14 of the 4th edition 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)

68The applicant relies on the assessments completed by Dr. Kiraly and Ms. Burnett. Dr. Kiraly opined that the applicant has a marked impairment in social functioning, concentration persistence and pace and adaptation.

69The respondent relies on the assessment completed by Dr. Longhorn Geddes and Ms. Saunders. Dr. Longhorn-Geddes determined that the applicant had a mild impairment in social functioning and concentration, persistence, and pace and a mild to moderate impairment in adaptation.

70The applicant has not satisfied me that she meets the CAT threshold under Criterion 8 as I do not find she has a marked impairment in social functioning, which I will address now.

Social Functioning

71According to the Guides, this area of functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. 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.

72The applicant testified that prior to the accident she did not have any limitations with social functioning and described herself as outgoing. She had a close friendship with a neighbour with whom she spent a lot of time. She also enjoyed entertaining friends at home, going to concerts, movies and would engage in small talk with her patients at work. Further, she had a good relationship with her spouse, children, and extended family. Post-accident, she does not want to be around people and is socially isolated from friends. In addition, she is easily irritable, however, she has still maintained a close relationship with her husband, children, and father.

73Dr. Kiraly opined that the applicant has a marked impairment in social functioning. In his report the doctor notes that the applicant is socially withdrawn and isolated and prefers to stay at home. Further, she is irritable and has lost interest in all of her leisure activities. Ms. Burnett’s OT assessment notes that the applicant’s low mood, depression, anxiety, and suicidal ideation have negatively impacted her ability to get along with others which has had an impact on her relationship with her spouse and children as she fights more often with her husband and is less patient with her children. Further, she is overwhelmed when leaving the house and feels anxious when having visitors over.

74Dr. Longhorn Geddes determined that the applicant has a mild impairment in social functioning which the Guides define as impairment levels which “are compatible with most useful functioning.” However, the doctor defines a mild impairment as “being compatible with some but not all useful functioning” which in the chart above is defined as a moderate impairment. In providing her rationale for her impairment rating the doctor states that the applicant did not have any limitations in her ability to communicate throughout the assessment. Further, although some of her relationships have been impacted as she has socially withdrawn from connecting with friends, she has maintained close relationships with her spouse, children, sister, and father.

75Ms. Saunders’ OT report notes that the applicant had a limited rapport with her during the two assessment dates and became agitated when completing the pen and paper functional testing. The applicant reported to Ms. Saunders that she has frequent angry outbursts and arguments with her husband and daughter. She is no longer intimate with her husband due to fatigue and pain. Further, she has difficulty carrying on a conversation and does not speak with her sister often which makes her feel sad.

76I find the applicant has a moderate impairment in social functioning for the following reasons.

a) She continued to work for a period of approximately three years following the accident as a dental assistant where she had to regularly interact with her boss, co-workers, and patients. While she may have experienced some anxiety and participated less in small talk there is no evidence that she had any issues in her ability to communicate effectively during this time period or that there were performance issues arising from angry outbursts.

b) She still communicates with her neighbour by text message and will sometimes meet for coffee. Although she does not socialize with this individual as often and the relationship has changed, she continues to communicate with this person.

c) She is in regular contact with her father and visits him once a week (sometimes more frequently) for two to four hours per day.

d) The applicant’s testimony about her relationship with her family being strained was inconsistently reported to assessors. As noted above, she testified that she has maintained a close relationship with her spouse and children. Her son also testified that she does not have regular angry outbursts with the family and he described the family dynamic as close. Moreover, there is little evidence that she has had any altercations with any members or the public.

e) I also find the applicant’s self-reports to assessors about fighting with her husband and not being interested in being intimate post-accident inconsistent with her testimony. Furthermore, if these problems exist post-accident, I do not find them to be as a result of the accident. During cross-examination the applicant acknowledged that there were pre- and post-accident problems in her marriage that are unrelated to the accident. For these reasons, I do not find the accident responsible for any disruption to her relationship with her husband. Further, these problems were not reported to any assessors. Therefore, I do not accept their conclusions that the accident was responsible.

f) Other than Ms. Saunders, none of the other assessors had any issues with the applicant’s ability to communicate effectively. For the most part, the assessors describe her as being articulate and co-operative. I find this to be consistent with her presentation during her testimony.

77For the above-noted reasons, I do not accept that the applicant has a marked impairment in social functioning. Further, neither parties’ assessor opined that she has a marked impairment in activities of daily living. Although I find that the applicant sustained impairments as a result of the accident which have had a negative impact on her life, I do not find that these impairments meet the CAT threshold under Criterion 8 as neither assessor has opined that she has an extreme impairment in concentration, persistence and pace or adaptation.

The applicant is not entitled to ACBs from September 1, 2018 to May 31, 2022. I find she is entitled to $905.34, per month from May 31, 2022 upon proof that the benefit has been incurred.

78The applicant spent little time at the hearing addressing this issue. The applicant submitted a Form 1 authored by Rachel Thedes, OT dated October 30, 2020 which recommended $7,577.26 per month in ACBs including 16 hours of supervisory care per day.

79Section 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. The maximum payable under the Schedule is $3,000 per month for non-CAT insureds, however, the applicant has optional benefits so the available limit is $6,000.00 per month.

80Section 3(7)(e) provides that to meet the definition of incurred the following three criteria must be satisfied:

i. The applicant received the service to which the expense relates;

ii. The applicant paid the expense or promised to pay the expense or is legally obligated to pay the expense;

iii. The person who provided the service did so

a) in the course of his or her employment, occupation, or profession in which he or she would ordinarily have been engaged, but for the accident, or

b) sustained an economic loss as a result of providing the goods or services to the insured person.

81Section 42 of the Schedule details the procedures for claiming ACBs, including the form to be used and timing of its submission. To apply for ACBs, an insured is required to submit an assessment of attendant care needs (“Form 1”) on the prescribed form. Section 42(3) states that an insurer has 10 business days after the submission of the Form 1 to provide notice of the ACBs it agrees to pay, refuses to pay and the medical and other reasons for the denial. Alternatively, it can provide notice requesting an IE.

82I find the applicant is not entitled to ACBs from September 18, 2018, to October 30, 2020, because there is no evidence before me that she applied for the benefit pursuant to s.42 of the Schedule until October 30, 2020. Further, there is no evidence that ACB expenses have been incurred between October 30, 2020, to the date of the hearing. Moreover, the applicant did not refer me to any evidence that supports her entitlement to the benefit before she submitted the Form 1.

83The applicant submits that she is entitled to ACBs because the physical and psychological impairments which were caused by the accident interfered with her ability to carry out her activities of daily living and that that I should deem the benefit incurred pursuant to s. 3(8) of the Schedule because the respondent unreasonably withheld the benefit.

84I do not accept the applicant’s position. First, since no application for ACBs was made until October 30, 2020, no services were provided to or received by the applicant before that time and she neither paid for, promised to pay for, nor became legally obligated to pay for, the service to which the expense relates, she has not “incurred” the expense pursuant to s. 3(7)(e) of the Schedule.

85I also decline to deem ACBs incurred for the time period between October 30, 2020, and May 31, 2022, because I find the services set out in the Form 1 to be inconsistent with the applicant’s level of functioning at that time. The applicant worked full time as a dental assistant from the time of the accident until August 2021. Despite the respondent’s offer to pay ACBs on December 9, 2020, pending an IE to address her entitlement, the applicant failed to attend the IE assessments until March 2022. The applicant’s son testified that she was independent with regard to her personal care and carried out other tasks such as grocery shopping until August 2021 when she stopped working. The applicant’s ability to participate in these activities is inconsistent with several of the services recommended in the Form 1; for example, the recommendation for 16 hours of daily supervisory care.

86Based on the above, I find the respondent’s decision to deny ACBs between October 30, 2020, and May 31, 2022, to be reasonable. Therefore, I do not find that the respondent unreasonably denied the benefit. Nor were any expenses incurred during that time period.

87With respect to the period after May 31, 2022, I find that the evidence supports that her function deteriorated when she stopped working in 2021 as a result of the impairment to her cervical spine. I find that this event led to a deterioration in her psychological function. Despite the fact that I have determined that her impairments do not rise to the level of CAT, I find that the medical record supports that her pre-occupation with physical pain has developed into somatic symptom disorder which has had an impact on her ability to carry out some of her activities of daily living. Further, the applicant purchased optional benefits so her entitlement to the ACBs does not depend on CAT status.

88I reject Dr. Longhorn Geddes’ opinion that the accident was not the sole cause of the applicant’s psychological condition and resulting functional limitations. I do not accept Dr. Longhorn Geddes’ opinion that the applicant does not require ACBs as a result of any accident-related psychological impairment. Consequently, I accept some of the recommendations made in the Form 1 authored by Ms. Saunders which were consistent with the Form 1 of Ms. Thedes.

89Under Level 1 services, Ms. Saunders recommended 42 minutes per day for assistance with dressing; 28 minutes per day for undressing, 160 minutes per day for grooming tasks such assistance with washing hair and cutting nails and 60 minutes per day for feeding. The services recommended by Ms. Saunders under Level 1 totalled 650 minutes per week. I find the amounts recommended by Ms. Saunders under Level 1 reasonable as the applicant consistently reported to assessors that she struggles with these tasks as a result of chronic pain and lack of motivation from a psychological perspective.

90Under Level 2 services, Ms. Saunders recommended 36 minutes per day each for assistance with bathroom and bedroom hygiene and hanging clothes. She also recommended 945 minutes per day for basic supervisory care because during her assessment she observed the applicant being overly dependent on her son. The total amount recommended under Level 2 equalled 6720 minutes per week. I find the Level 2 services for hygiene in bathroom, bedroom, and laundry to be reasonable in the amount of 105 minutes per week reasonable. However, I do not find Ms. Saunders’ recommendation that she requires 15.75 hours of supervisory care per day supported by the medical record. I find the applicant has the capability to respond in an emergency. Further, I find her presentation between Ms. Saunders and Ms. Burnett’s CAT assessments inconsistent. For example, she was not overly reliant on her son during the cooking task during Ms. Burnett’s assessment but displayed very different behaviour during Ms. Saunders’ IE assessment. In my view, this inconsistency demonstrates that she is more capable than she sometimes presents.

91The applicant testified that in the Fall of 2022 she started experience strong thoughts of suicidal ideation such as overdosing or cutting herself with a knife. The applicant’s son testified that his mother asked him to take her medication for her safety. The applicant was hospitalized shortly before the hearing for having suicidal ideation. The applicant submitted records of the hospital confirming this admittance. Of significance, there is nothing in the medical record that supports that the applicant has ever had any active suicide intent. What I also find lacking is an opinion from a treating practitioner supporting the recommendation that the applicant requires this type of supervision because she is a safety threat to herself.

92Under Level 3 services, Ms. Saunders recommended 70 minutes per week for administering and monitoring medication. Based on the facts before me I find this recommendation reasonable. The applicant has taken numerous amounts of medication following the accident. Further, she has reported forgetting to take her medication. Therefore, I find this it necessary for the applicant to have assistance with this task.

93Despite my prompts and reminders, the only Form 1 the applicant referred me to was authored by Provvidenza Dearcangelis, OT, dated January 27, 2023 after closing submissions. She did not refer me to the assessment of attendant care needs report that usually accompanies the Form 1. Nor was the Form 1 or attendant care assessment referred to by any witness during the course of the hearing. Therefore, I have given this evidence little weight in assessing the applicant’s entitlement to ACBs.

94I find the applicant’s total requirement for ACBs is $905.34 per month.

Level 1 = 650 min per week x 10.833 x 4.3 = 46.5833 = x $14.90 per hour = $694.09

Level 2 = 105 min per week x 1.75 x 4.3 = 7.52 x$14.00 = $105.35

Level 3 = 70 min per week x. 1.16 x. 4.3 = 5.01 x. $21.11 =$105.90

95However, I do not find the applicant is entitled to payment of ACBs for the time period claimed because she has not submitted persuasive evidence that the benefit has been incurred pursuant to s. 3(7)(e). The applicant testified that a personal support worker named Kate has been providing weekly ACBs since April 2023. No documentation was submitted to confirm that Kate is a professional and no invoices were submitted to support that the applicant has paid or promised to pay Kate for these services. Nor has the applicant provided any documents providing a breakdown of the services Kate has provided. The applicant has not met her onus in proving on a balance of probabilities that the benefit has been incurred.

96Moreover, based on the facts before me I do not find the respondent unreasonably withheld the benefit because it relied on the IE of Dr. Longhorn Geddes who incorrectly applied the causation test. First, it is not within Ms. Saunders’ scope of practice to give an opinion on causation. Second, based on the facts in this case I do not fault the respondent for challenging causation and relying on Dr. Longhorn Geddes’ IE because of the significant pre-accident health issues which were similar to the impairments the applicant sustained in this accident. Further, there were numerous other factors which led to the doctor’s conclusion on causation.

The applicant is not entitled to any of the OCF-18s for medical benefits or cost of examination expenses.

97To receive payment for an OCF-18 under s. 15 of the Schedule, the applicant bears the onus 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. The case law is also well established that medical treatment is reasonable and necessary if it results in the temporary relief of pain or restores an individual’s function.

98Section 25(1)5 of the Schedule provides that an insurer shall pay for reasonable fees for the determination of whether the insured person has sustained a CAT impairment, including any assessment or examination necessary for that purpose. This is to be read in combination with s. 25(5)(a), which limits the cost of any one assessment or examination to $2,000.00. The applicant bears the onus of proving on a balance of probabilities that each item in an OCF-18 is reasonable and necessary for the purpose of applying for a CAT determination under s. 45.

99I find the applicant is not entitled to any of the OCF-18s for medical benefits or cost of examination expenses recommended by either Okell Rehabilitation Services or Physio First. Despite my reminders throughout the hearing, the applicant did not provide any submissions pointing me to the evidence in support of any of the OCF-18s for medical benefits and cost of examination expenses in dispute. For example, her testimony did not address how any past occupational therapy, physiotherapy and massage benefited her in any way. Nor was I pointed to any medical evidence in support of the OCF-18s. Moreover, she did not address the OCF-18 recommending $20,220.00 for catastrophic assessments and explain what assessments were being sought and why they are reasonable and necessary. In fact, I had to specifically ask the applicant where the OCF-18s could be found in the briefs so that this evidence could be considered. The OCF-18s on their own are insufficient to prove that all of the medical benefits are reasonable and necessary.

100In closing submissions, the applicant argues that all of the OCF-18s are reasonable and necessary because the treatment sought would have prevented her from deteriorating. Finally, she maintains that all of the OCF-18s are payable because the respondent did not provide medical reasons for its denials. However, no submissions were made specifically addressing this argument in relation to the OCF-18s in dispute or the denials.

101The applicant fell far short of meeting her onus in proving on a balance of probabilities that the OCF-18s in dispute are reasonable and necessary. Consequently, I do not find that any of them are reasonable and necessary.

The applicant is not entitled to interest.

102Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No interest is payable as I do not find any benefits are overdue.

The applicant is not entitled to an award.

103The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

104The case law is well established that in determining whether an insurer’s conduct in withholding or denying a benefit warrants an award, an insurer’s behaviour must be seen as “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.”

105The applicant did not spend much time addressing the award issue and argues that the respondent unreasonably withheld all of the benefits in dispute and did not fulfill its obligation to conduct itself in good faith while adjusting her claim. The respondent argues that there is no evidence that it unreasonably withheld any of the benefits in dispute or that its conduct meets the threshold for an award. I agree.

106Ms. Filipone testified about the respondent’s adjusting of the applicant’s claim. The applicant did not direct me to any evidence to support that the respondent’s conduct has been excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. She did not ask the adjuster any relevant questions about the log notes or any other evidence to support that it disregarded important medical records in adjusting her claim. Finally, for the reasons already noted above, I do not find it unreasonably withheld the applicant’s entitlement to ACBs.

107The applicant has not met her onus in establishing that an award is warranted in this case as she did not establish entitlement to the benefits claimed. Therefore, I cannot conclude that the respondent unreasonably withheld the benefits in dispute.

ORDER

108For all of the above reasons, I make the following order:

1. The applicant is barred from claiming IRBs because she failed to apply for and/or qualify for the benefit within 104 weeks from the date of the accident.
2. The applicant did not sustain a CAT impairment.
3. The applicant is not entitled to any of the medical benefits, examination expenses, interest, or an award.
4. The applicant is not entitled to ACBs to date, because she has not submitted proof that the benefit has been incurred. I find she is entitled to ACBs in the amount of $905.34 per month, upon submitting proof that the benefit has been incurred.