Vivekanantham v. Certas Home and Auto Insurance Company, 2023 CanLII 98416

Citation: Vivekanantham v. Certas Home and Auto Insurance Company, 2023 CanLII 98416

Licence Appeal Tribunal File Number: 21-005665/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:

Kavitha Vivekanantham Applicant

and

Certas Home and Auto Insurance Company Respondent

DECISION

ADJUDICATOR: Sandra Driesel

APPEARANCES:

For the Applicant: Kavitha Vivekanantham, Applicant Doug Q Wright, Counsel

For the Respondent: Bruce Chambers, Counsel

Interpreter: Nishanna Jeyakumar

Court Reporter: Marisa Kwan

HEARD: by Videoconference: March 27, 2023 to March 31, 2023

OVERVIEW

1Kavitha Vivekanantham, the applicant, was involved in an automobile accident on June 1, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Certas Home and Auto 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. If it is determined that she has suffered a CAT impairment, she is entitled to the extended tier of benefits that accompanies this designation.

ISSUES

2The issues to be decided in the hearing are:

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

ii. Is the applicant entitled to $11,032.73 for Physiotherapy Services, proposed by Gibson Wellness Centre Inc in a treatment plan dated July 25, 2022?

iii. Is the applicant entitled to $14,015.03 for Exercise and Recreational Actives, proposed by Gibson Wellness Centre Inc in a treatment plan dated July 25, 2022?

iv. Is the applicant entitled to $2,360.65 for an Attendant Care Assessment, proposed by Gibson Wellness Centre Inc in a treatment plan dated March 22, 2021?

v. Is the applicant entitled to $2,200 for a Psychological Assessment, proposed by Dr. A. Pillai in a treatment plan dated May 27, 2021?

vi. Is the applicant entitled to the assessments proposed by Allied Med Trauma Evaluation, as follows:

a. $3,955.00 for a Worksite– Little Star Caretaker Assessment, in a treatment plan dated May 20, 2021; and

b. $3,955.00 for a Worksite– Total Healthcare Assessment, in a treatment plan dated May 20, 2021?

vii. Is the applicant entitled to attendant care benefits in the amount of $4,652.89 per month from May 7, 2021, to date and ongoing?

viii. 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?

ix. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant did not sustain a CAT impairment as a result of the accident.

4The applicant is not entitled to the treatment plans and assessments in dispute.

5The applicant is not entitled to interest on any overdue payment of benefits.

6The applicant is not entitled to an award.

BACKGROUND

7On June 1, 2018, while stopped at a traffic light the applicant was struck from behind. She reports that she did not lose consciousness and she hadn’t struck her head. She was taken to hospital citing she had trouble breathing and she attributes this to shock, and not to her being asthmatic. She underwent testing and imaging at Scarborough Rouge Valley Hospital that showed “nothing remarkable” as a result of the accident and she was released that same day.

8The injuries listed on the OCF-3 (Disability Certificate) dated June 8, 2018, show injuries as follows: whiplash, neck pain, sprains and strains of lumbar spine, shoulder, knee, ankle and thumb, with sleep disorder, headache and chest pain. This same form, completed by H. Grigoropoloulos, Chiropractor, indicates an expected duration until recovery from these injuries to be more than 12 weeks and he states the reason to be “possible psycho-emotional involvement, multiple injury sites, severity of injuries and pre-existing conditions may delay her recovery.”

9On February 18, 2022, the applicant submitted an OCF-19 (application for Determination of Catastrophic Impairment “CAT”) signed by her family physician Dr. W. Chan, claiming impairment under criteria 7 and 8. Criterion 7 considers a mental or behavioural impairment combined with a physical impairment which results in a 55 percent or more impairment of the whole person, while criterion 8 considers a mental or behavioural impairment only.

10The respondent takes the position that based on insurer’s examinations that the applicant does not meet the test of a criterion 7 or criterion 8 CAT impairment. It argues that the applicant has failed to provide meet her onus to prove that on a balance of probabilities she has suffered a CAT impairment as a result of injuries sustained in the accident.

11During the hearing the applicant advised she is not seeking a determination of CAT under criterion 7 as indicated on the OCF-19. Therefore, my review of the evidence is concentrated on whether of not the applicant meets the test of CAT under criterion 8.

ANALYSIS

Has the applicant sustained a CAT Impairment as defined by the Schedule?

12I find the applicant has failed to meet her onus to prove that on a balance of probabilities that she sustained a CAT impairment under criterion 8, as a result of the June 1, 2018, motor vehicle accident.

Has the applicant sustained a CAT impairment under criterion 8?

13Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment,4th Edition, 1993 (“the Guides”) set out the four spheres of functioning and 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-like setting)

14Lastly, catastrophic impairment is a legal definition and not a medical test, although the legal test involves consideration of medical evidence. The applicant has the burden of proving on a balance of probabilities that she is catastrophically impaired as a result of an accident. Given that the accident occurred on June 1, 2018, a CAT impairment under criterion 8 requires at least three of the four spheres of functioning to be a Class 4 (marked) impairment or one sphere to be a Class 5 (extreme) impairment.

15The applicant relies on the opinion of Dr. S. Parekh, Psychiatrist, who provides a Psychiatric Evaluation report as a result of a virtual assessment conducted January 13, 2023. He reports that his findings, based on reporting by the applicant, collateral medical documentation provided him for review, and psychometric testing are that the applicant sustained a Class 4 (marked) impairment in activities of daily living, social functioning and adaption as well as a Class 3 (moderate) impairment in concentration, persistence and pace.

16The respondent’s CAT assessor in the same field, following a similar analytical process, Dr. V. Sivasubramanian, Psychiatrist conducted an assessment September 6, 2022, and opines the applicant sustained a Class 3 (moderate) impairment in activities of daily living, concentration, persistence and pace, and adaption, with a Class 2 (mild) impairment in social functioning.

Concentration, Persistence and Pace (“CPP”):

17As the parties agree that the applicant does not suffer from a marked impairment in the aspect of CPP, I find that the applicant does not suffer that level of impairment for this sphere. I will look at the remaining three areas of functioning:

Activities of Daily Living (“ADL”):

18In this category a person’s ADL including self-care, personal hygiene, communication, ambulation, travel, sexual functioning, sleep, social and recreational activities are evaluated.

19The applicant’s assessment by Dr. Parekh states the applicant has driven since the accident, although she gets anxious and panics. She claims she experiences these same feelings as a passenger except when her husband drives. She can use her phone and computer independently. She claims she is independent in performing tasks such as feeding and toileting but has limited motivation to tend to her personal hygiene. The applicant claims her daughter has taken over the responsibility for most household tasks, she admits to sometimes trying to help with shopping, cleaning or preparing “simple” meals. Dr. Parekh indicates his review of the occupational therapy assessment by Laura Burnet, O.T. that took place January 3 and 4, 2023 where the applicant reports to the O.T. that she drives only with significant encouragement from her daughter. The applicant states that her memory has become impaired since the accident, causing her to be forgetful, which in turn creates a concern for safety if she is cooking and she is concerned that she may forget to take her medication. She claims that since the accident she can no longer pay bills or enjoy reading as she used to. The O.T. assessment reports the applicant to be independent in her toileting, but she requires encouragement from her daughter to change her clothes, bathe or groom herself. Although it is reported by this assessor that the applicant is no longer able to independently engage in housekeeping chores, she reported completing light duties such as wiping the counters. Dr. Parekh reports that the applicant has the ability to complete tasks independently or when required, as well as being able to complete tasks with encouragement or supervision. He then concludes her level of functioning to be that of Class 4, which means she suffers an impairment level that significantly impedes useful functioning. I find this conclusion fails to consider her ability to do some useful functioning that he himself notes in his report.

20The respondent’s assessor Dr. Sivasubramanian suggests that the applicant’s adjustment disorder, which appears to be limited by physical pain, may be a contributing factor to her decreased motivation in pursuing leisure and social activities. The applicant reported to this assessor that she has returned to driving, she continues to do some household chores and that she is relatively independent with her personal care, and she maintains control over her medications. The doctor refers to the Occupational Therapy In-Home Assessment Report by V. Tandon, O.T. dated July 19, 2022, where her findings concur: the applicant resumed driving, she is independent with her self-care activities and that she is able to complete some light cooking tasks. The O.T. reports the applicant demonstrated abilities to engage in self-care tasks, some cleaning, laundry and cooking tasks, using modifications/spacing techniques. Dr. Sivasubramanian rates the applicant’s functionality in this sphere to be Class 3 which I find to be in line with the applicant’s ability to achieve some useful functioning.

21I agree with the finding of the respondent’s assessor that in the sphere of ADL, the applicant suffers from a Class 3, moderate impairment. Combined with what I conclude to be an inconsistency in Dr. Parekh’s report, I find the applicant’s level of functioning in ADL to be better defined as Class 3, which is described in the Guides as compatible with some, but not all useful functioning. With this finding along with an agreement that the applicant does not suffer a marked impairment in the sphere of CPP, the applicant cannot meet the test of CAT impairment under criterion 8 because she requires a Class 4 marked impairment in a least three of the four spheres.

Social Functioning:

22As much as I have found that the applicant has not satisfied the requirements for CAT under criterion 8 with less than 3 marked impairments, I do not agree with the applicant’s position regarding her level of impairment in Social Functioning, which pertains to an individual’s capacity to interact appropriately and communicate effectively with other individuals.

23Dr. Parekh finds the applicant to suffer from a Class 4 impairment. In reporting the applicant’s post-accident functioning, he notes she is isolated and prior to the accident she was active, going to temple and camping with her family. The applicant suggests to the doctor that her avoidance to driving limits her ability to socialize, but as she has also reported to more than one assessor, she does drive, although to a lesser degree than she used to. While the applicant reports to be withdrawn, depressed and lacks motivation to leave the house, she also says she has attended two weddings and was she was able to travel to Sri Lanka unfortunately because of a death in the family, but she was staying in a hotel with her husband and visited with family. Her daughter reported that with encouragement the applicant did go to family over the holidays even though she wanted to leave early. The applicant also states she will see family if they come to the house to visit. During the O.T. assessment with Ms. Tandon, the applicant reports she only goes to the temple on special occasions, she continues to be close to one of her siblings, still visits her parents, has a good relationship with her children and she is active on social media. Having considered Dr. Parekh’s report with the evidence of the applicant’s activities, I am left unpersuaded by Dr. Parekh’s opinion that the applicant’s impairments “significantly impede” useful functioning for a Class 4 impairment. Instead, I find that her impairment level is consistent with some, but not all useful functioning as defined as a Class 3 impairment.

Adaptation:

24Again, based on my analysis above, I did not find that the applicant has satisfied the requirements for CAT under criterion 8 through the other spheres of functioning, and neither party assessed the applicant with a level 5 marked impairment in the area of adaption, to change my finding on CAT.

25Based on the above, I find the applicant has failed to meet her burden to prove that on a balance of probabilities that she suffered a criterion 8 catastrophic impairment as direct result of the accident.

Is the applicant entitled to an attendant care benefit (“ACB”) in the amount of $4,652.89 per month from May 7, 2021, to date and ongoing?

26I find that the applicant has not met her evidentiary onus in relation to the ACB. Thus, the applicant is not entitled to payment of this benefit.

27Section 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”).

28The applicant relies on the Form-1 dated May 7, 2021, and the In-Home Assessment conducted by occupational therapist Elsa Poon, on dated May 7, 2021. The Form-1 states the applicant requires $4,652.89 in monthly attendant care benefits. Because the applicant has not been found to be catastrophically impaired, the amount of $4,652.89 is beyond the non-catastrophic limit of $3,000.00 per month imposed by the Schedule.

29Ms. Poon reports that in situations such as driving, preparing light meals, light housekeeping, dressing and grooming, the applicant is capable and then suggests that tasks the applicant does not do, or is unable to do consistently is because of pain and/or she lacks motivation to do them. When Ms. Poon addresses functionality, she explains contradictions in the applicant’s capabilities to be because the applicant has ‘good days’ and ‘bad days.’ While the applicant testifies that days are influenced by her medical injections for pain, it seems the estimate for attendant care assistance that Ms. Poon recommends doesn’t consider that the applicant does not have the need for attendant care each and every day.

30Conversely, the respondent relies on the report of an In-Home Assessment conducted by occupational therapist Lee Birgrager dated October 28, 2021, that concludes the applicant does not require attendant care assistance.

31Having considered each of the O.T.’s reports, I am not persuaded by the applicant’s O.T. that the applicant is entitled to ACB.

32Even if I determined the applicant was entitled to ACB, she would be unable to recoup any ACB expenses that were not incurred.

33Section 3(7)(e) provides that a person has “incurred” an expense if they have received the goods or services to which the expense relates; paid the expense; promised to pay the expense; or are otherwise legally obligated to pay the expense.

34The definition of “incurred” in s. 3(7)(e) sets out two categories of attendant care providers: professional service providers who provide services in the course of employment, occupation, or profession they would ordinarily be engaged but for the accident; and non-professional service providers.

35The applicant admits that although her daughter has provided her some assistance, the daughter does not have any evidence of suffering an economic loss for doing so, and the applicant has failed to establish that she incurred any attendant care services in the period claimed either by a professional or non-professional aide, pursuant to s. 3(7)(e) of the Schedule.

36As a result, I find the applicant is not entitled to the ACB being claimed.

Is the applicant entitled to the OCF-18’s claims (Treatment plans and Assessments) in dispute?

37The respondent submitted that the treatment plans are not reasonable or necessary to any accident-related impairment and that the applicant has failed to discharge her onus to prove otherwise, and I agree. As indicated in my review of evidence related to a CAT impairment, the applicant’s physical functioning is not as restricted as she has reported to some assessors, and I have already determined that she has not proven her need for attendant care benefits. I am not directed to any evidence that states the treatments or assessments in dispute are necessary to any impairment proven to be as a result of the subject accident.

38I find the applicant is not entitled to payment of the following OCF-18’s:

• $11,032.73 for Physiotherapy services dated July 25, 2022
• $14,015.03 for Exercise and Recreational Activities dated July 25, 2022
• $2,360.65 for Attendant Care Assessment dated March 22, 2021
• $3,955.00 for a Worksite/Caretaker Assessment for dated March 22, 2021
• $3,955.00 for a Worksite/Healthcare Assessment for dated March 22, 2021

Interest

39As none of the benefits in dispute are payable, interest does not apply.

Award

40As I have found that the applicant is not entitled to any of the benefits claimed, there is no basis for an award.

ORDER

41The applicant has not sustained a CAT impairment under criterion 8 as a result of the accident.

42The applicant is not entitled to an attendant care benefit in the amount of $4,652.89 per month from May 7, 2021, to date and ongoing.

43The applicant is not entitled to any of the OCF-18’s in dispute.

44The applicant is not entitled to interest on any overdue payment of benefits as none of the benefits in dispute have been found to be payable.

45The respondent is not liable to pay an award.