Licence Appeal Tribunal File Number: 23-005721/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:
David Charles Armstrong
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Timothy Porter
APPEARANCES:
For the Applicant:
Tanzeela Ansari, Counsel
For the Respondent:
Jeffery Booth, Counsel
Melanie Lyons, Counsel
Court Reporter:
Guido Riccioni
Closed Captioner
Abby Estes (August 6, 2024)
HEARD: by Videoconference:
August 6-8, 2024,
OVERVIEW
1David Charles Armstrong, the applicant, was involved in an automobile accident on October 16, 2017, 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, Intact, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant has applied to the Tribunal under their legal name at the time of the accident but has changed their name to “Tally”. The applicant identifies as gender fluid and prefers the pronouns they and them. Much of the documentation received is written with a male pronoun. The applicant agreed it was appropriate to address them directly throughout the hearing as “David”. Efforts have been made to honour their requests for preferred pronouns within this decision.
3A total of $3,247.00 has been paid by the respondent in this claim thus far; in April of 2019, without a signed OCF-1 (Application for accident benefits) on hand and no OCF-18, the respondent paid $450.00 in medical/ rehabilitation benefits to Physiomed for care incurred by the applicant. Of the treatment plans partially approved only $514.00 has been utilized thus far. No property damage file was opened, no OCF-2 (Employers Confirmation Form) was ever submitted, and an OCF-3 (Disability Certificate) was filed more than 104 weeks post accident.
PRELIMINARY ISSUE
4Is the applicant barred from proceeding to a hearing for income replacement benefits because the applicant failed to submit the required OCF-3 within the two-year limitation period?
SUBSTANTIVE ISSUES
5The substantive issues in dispute are:
Has the applicant sustained a catastrophic impairment as defined by the Schedule?
Is the applicant entitled to the assessments/treatment plans/OCF-18s proposed by 101 Physio and Assessments, as follows:
i. $1,546.57 ($4,912.80 less $3,366.23 approved) for psychological services, in a treatment plan dated September 25, 2020?
ii. $17,302.50 for a catastrophic assessment, in a treatment plan dated February 24, 2021; and
iii. $2,630.38 ($4,240.67 less $1,610.29 approved) for chiropractic services, in a treatment plan dated March 11, 2021.
6Is the respondent liable to pay an award under s.10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
7Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
8I find that the applicant is statue barred from proceeding to hearing for income replacement benefits, as per s. 55, because they failed to file the Disability Certificate (OCF-3) within 104 weeks of the accident.
9For the reasons that follow I find that the applicant:
i. has not sustained a catastrophic impairment as a result of the subject accident, as defined by the Schedule.
ii. is not entitled to the unapproved portions of the assessments/treatment plans/OCF-18s proposed by 101 Physio and Assessments, as follows:
i $2,630.38 ($4,240.67 less $1,610.29 approved) for chiropractic services, in a treatment plan dated March 11, 2021.
ii $17,302.50 for a catastrophic assessment, in a treatment plan dated February 24, 2021; and
iii $1,546.57 ($4,912.80 less $3,366.23 approved) for psychological services, in a treatment plan dated September 25, 2020.
iii. is not entitled to interest on any overdue payment of benefits.
iv. For the reasons below I find that the respondent is not liable to pay an award under s.10 of Reg 664.
Is the applicant statute barred from proceeding to hearing for income replacement benefits (“IRB”)?
10I find that the applicant is statue barred from proceeding to hearing for income replacement benefits, as per s. 55, because they failed to file the Disability Certificate (OCF-3) within 104 weeks of the accident.
11An employed person’s entitlement to IRB is found in s.5(1)(1)(i) of the Schedule and stipulates that an insurer shall pay an IRB if the insured person was 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.
12Section 55(1) of the Schedule states that an insured person shall not apply to the Licence Appeal Tribunal under subsection 280(2) of the Act if the insured person has not submitted an application for the benefit within the times prescribed.
13The applicant submits that it is their accident-related injuries which prohibited them from filing the identified paperwork in a timely fashion; that the applicant recognizing they needed help, finally engaged applicant’s counsel to support them through the claims process and, once engaged, the paperwork was filed in a timely fashion.
14The respondent submits that s. 55 and s. 5 of the Schedule creates strict requirements and an applicant who fails to submit a completed OCF-3 is not entitled to an IRB for any period before the OCF-3 is submitted. The respondent further submits that a completed claim for IRBs must be made within 104 weeks of the accident in order to be eligible for a pre or post 104-week IRB.
15I find that the applicant was provided ample opportunity by the respondent to submit the required documentation. The applicant notified the respondent of the accident, and an accident benefits package was sent to them on October 30, 2017. An incomplete OCF-1 was received March 1, 2018; the respondent then followed up with the applicant in writing requesting completion of the OCF-1 on March 5, 2018, April 27, 2018, and May 15, 2018. The respondent also followed up with the applicant via telephone and the appointed adjuster spoke with the applicant on February 13, 2018 and May 8, 2018 and exchanged emails February 13, 2018, May 23, 2018 and June 5, 2018; In each of these instances the respondent appears to be supportive and accommodating while the adjuster’s log notes, when correlated with employment files and testimony, demonstrate an applicant that provides information that does not align with the facts in evidence.
16On February 13, 2018, the appointed adjuster also followed up with Physiomed where the applicant appeared comfortable with service to request that they follow-up with the applicant on the incomplete OCF-1 and on March 1, 2018, the respondent offers to pay Physiomed for services incurred by the applicant even though the respondent does not have a properly completed OCF-1 and no OCF-18. Of note the incomplete OCF-1 noted that the applicant was both self-employed and unemployed, neither of which was the situation at the time as he was fully employed by Sherwin Williams. During testimony the applicant was extremely evasive when shown these documents and denied their signature was on any of them.
17No OCF-2 (Employer’s confirmation of Income Form) has been received to date and on February 9, 2024, the applicant submitted to the respondent the documentation required to assess an IRB. The respondent also notes that the OCF-3 was filed almost simultaneously with the application now before the LAT. It asserts that these extremely late submissions make it virtually impossible to schedule insurer’s examinations nor assess the file on its merits.
18The respondent cited C.G. v Pembridge Insurance Company, 2020 ONLAT 19-010979/AABS in their closing submission, and I do find the facts of the two cases to be similar and helpful: that the applicant in both cases failed to submit an OCF-3 claiming an IRB within 104 weeks of the accident; the decision found that s. 55 creates strict requirements and that a complete claim for IRBs must be made within 104 weeks of the accident.
19I find that the applicant’s assertion that accident-related injuries delayed submission of required documentation is not supported by the facts. The applicant by their own admission worked for 38 days straight following the accident. I found no Sherwin Williams work file notes regarding reprimands or modified duties that would suggest the applicant was unable to function effectively during the six weeks following the subject accident. In addition, the applicant was able to plan and execute a trip to New Brunswick six weeks following the subject accident. During this trip to New Brunswick the applicant was involved in another motor vehicle accident involving a moose. I find it difficult to accept that the applicant’s subject accident-related injuries prevented them from complying with the requirements of the Schedule.
20I agree with the respondent’s submission that a strict requirement exists under s. 55(1) and that a completed claim for IRBs must be made within 104 weeks of the accident in order to be eligible and is supported by the legislation in s. 5(1)(1)(i) of the Schedule.
ANALYSIS
Does the applicant meet the Catastrophic impairment legal test?
21For the reasons that follow I find that the applicant did not suffer a catastrophic impairment as a result of the October 16, 2017, accident.
22Catastrophic impairment is a legal definition and not a medical test, although the legal test involves consideration of medical evidence. The applicant is proceeding under s. 3(1)(8) of the Schedule and in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”). This section of the Schedule explores Mental and behavioural impairments that are rated according to how seriously they affect a person’s useful daily functioning, physical impairments have no bearing within these ratings. Chapter 14 of the Guides set out the four spheres of functioning and the classification of impairments 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 (ADLs)
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 (In a work-like setting)
23The applicant has the burden of proving on a balance of probabilities that they are catastrophically impaired, under criterion 8, as a result of the accident. Given that the accident occurred on October 16, 2017, a catastrophic 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.
24The applicant submits that they have suffered marked impairments in Social Functioning, Concentration, Persistence and Pace and Adaptation and a moderate impairment in their Activities of Daily Living as a direct result of the subject accident. The applicant relies on testimony of the applicant, the records of Sunnybrook Hospital, clinical notes and records of Dr. Li and Dr. Katz; and the expert report by Dr. Yaroshevsky, psychiatrist, in support of this position.
25The respondent submits that the applicant has failed to discharge their onus and has not proven on a balance of probabilities that they are catastrophically impaired as a direct result of the accident. The respondent raises questions of causation, pointing to a significant documented history of mental and behavioural issues experienced by the applicant over multiple decades, workplace injuries, a subsequent accident that occurred six weeks later and is documented as a reason for a disability leave from work; challenges the expert opinion of Dr. Yaroshevsky and relies on the OT assessment of Ms. Hisey and the expert report of Dr. Eisen.
26The applicant underwent a multi-disciplinary catastrophic determination assessment and report. The assessments were undertaken by Dr. Vitebski, chiropractor, Dr. Getahun, orthopaedic surgeon, Dr. Yaroshevsky, psychiatrist, and Dr. Herschorn, primary care physician wrote an executive summary without seeing the applicant. The assessments by Dr. Vitebski and Dr. Getahun are in regard to physical issues which have no bearing on this proceeding. The executive summary by Dr. Herschorn is of little value in these proceedings as the doctor did not assess the applicant. Dr. Yaroshevsky notes that the applicant approached the assessment with some evasiveness or unwillingness to divulge matters of a personal nature, in particular, refusing to answer any questions with regard to pre-accident life, family relationships or medical problems responding that these are “irrelevant”. The assessment by Dr. Yaroshevsky provided the following ratings of the applicant in the four spheres of function:
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
Moderate Impairment
Social Functioning
Marked Impairment
Concentration, Persistence and Pace
Marked Impairment
Adaption (In a work-like setting)
Marked Impairment
I give little weight to Dr. Yaroshevsky’s report because there is no information in the report that outlines how long the assessor spent with the applicant; he does not follow the specific approach and process demanded by the Guides in Chapter 14, in particular, there are no specific examples of the applicant’s function against the areas of function to corroborate or elaborate on the assessors opinion; and the conclusion that the current presentation is related directly to the accident is in direct conflict with medical evidence cited in the file review. While not a requirement in the Guides, I find the lack of examples of the applicant’s impaired function combined with lack of an occupational therapist’s review of function in any way leaves the report short of detail. Finally, there is no evidence that Dr. Yaroshevsky attempted to tease out pre-accident/ non-accident-related impairment from accident-related impairments.
27I find that there is a tremendous lack of detail regarding pre-accident function across all assessments and evidence. The applicant provided testimony in support of their position. While there was questioning regarding a typical day, medication utilization and activities of daily living, a marked contrast was not drawn between pre accident and post accident functionality.
28Dr. Katz is the applicant’s treating psychiatrist and saw the applicant on a ‘one off’ basis prior to the subject accident, then, after being sought out by the applicant during the pandemic began to see them as a semi-regular patient with 2 phone sessions in 2020, 3 phone sessions in 2021 and 3 sessions in 2022. Dr. Katz has not performed any objective testing, has not written a report and his clinical notes and records were not enlightening on the issues of pre and post accident function because he relies on the applicant’s self-reports. In particular the doctor was unaware, due to omission of the applicant, of the second accident involving a moose which occurred six weeks following the subject accident, the doctor was also unaware that the applicant had returned to work with Sherwin Williams following the subject accident. In addition, the clinical notes and records of Dr. Katz indicate that the applicant was “getting better” on June 10, 2020, “coping well” on August 1, 2020, and “doing reasonably well” on February 17, 2021.
29Ms. Hisey is an occupational therapist, and her report of May 16, 2023, does not offer very much insight as the applicant was largely non-participatory in many elements of the assessment, declining to answer questions as “irrelevant”, responding sarcastically and declining to complete situational tests due to physical pain. From a functional cognitive perspective Ms. Hisey identified that the applicant does have issues with maintaining concentration, and processing information; persistent somatic complaints regarding headaches and back pain fall within the complete or crippled perceived level of disability. With regard to activities of daily living (“ADLS”) the applicant declined to participate in the multi-task portion of the assessment wherein the applicant was asked to make a small meal, sweep a foyer, make a bed and wash several dishes due to physical pain. Ms. Hisey found that the applicant is vague and guarded regarding social function but did note in the ADLs portion of the interview that the applicant has a friend that will go grocery shopping with them. With regard to Adaptation the assessor was able to have the applicant complete a ‘weekly calendar planning activity’ wherein the applicant is asked to follow rules about placement of several appointments within a calendar. The applicant was able to complete the task with noted difficulty and having taken more time than expected. And within the domain of Concentration Persistence and Pace (“CPP”) it is Ms. Hisey’s opinion that “on any given day, secondary to reported physical and/ or mental health symptoms, their ability to initiate and execute with various activities of daily living may be reduced thus impacting on both the quantity and quality of their participation. Ms. Hisey notes that it is outside her scope of practice to comment on whether any limitations are as direct result of the subject accident.
30Dr. Eisen, psychiatrist, concludes that the applicant’s presentation and functional impairments are not as a result of the subject accident. Dr. Eisen was engaged on behalf of the respondent and issued his report May 16, 2023. Dr. Eisen’s report is negatively impacted by the applicant who was a poor historian that terminated the assessment after 40 minutes of uncooperative behaviour, This uncooperative behaviour was because the assessor was male, the applicant also maintained that they could not hear the assessor and entered the personal space of the assessor several times; the applicant also claimed to have been assaulted by an assessor whom worked for the same company as Dr. Eisen.
31Dr. Eisen highlights in his medical documentation review that the applicant has a well documented psychiatric history that goes back approximately two decades. In particular the assessor highlights that the applicant has been variously diagnosed with major psychiatric disorders and their functioning has fluctuated over time; CNRs are suggestive of affective psychosis, depression, anger, elation, grandiosity, paranoid delusional beliefs, gender issues, extremely poor social functioning and cognitive complaints. Ultimately, Dr. Eisen cannot identify any evidence that the applicant has sustained any new impairment or exacerbation of any previous impairments from a psychiatric perspective, as a result of the subject accident. The following chart summarises the functional assessment of the applicant across the 4 spheres of function by Dr. Eisen:
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 as a result of the accident
Social Functioning
No Impairment as a result of the accident
Concentration, Persistence and Pace
No Impairment as a result of the accident
Adaptation (In a work-like setting)
No Impairment as a result of the accident
Activities of Daily Living (“ADL”)
32In this sphere of function, a person’s ADLs including self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities are evaluated.
33For the reasons that follow I find that on a balance of probabilities the applicant’s current presentation with regard to ADLs is the same as their pre-accident presentation.
34I do not accept Dr. Yaroshevsky’s opinion in this sphere because he does not provide any clear examples of this specific area of function to support his rating. Dr. Yaroshevsky assessed that the applicant was moderately impaired in this sphere of function. Dr. Yaroshevsky states only “Mx. Armstrong is moderately impaired in his activities of daily living”. Scouring the report, I find no other references to activities of daily living.
35I prefer the evidence of Dr. Eisen for the following reasons. Dr. Eisen assessed that the applicant had no impairment as a result of the subject accident in this sphere of function. Dr. Eisen found that the applicant engages in self-limiting, pain focused behaviour and that while they possess the physical function to complete light tasks within this domain of function they do not choose to go about their ADLs. While there is evidence, from the applicant’s self-reports, that very little to no homemaking tasks are being completed there is no evidence that these tasks were being completed pre-accident. The applicant’s personal hygiene is noted as occurring but with less frequency than pre-accident.
36For example, there is very little in the way of evidence regarding the applicant’s pre-accident ADL function. The applicant was vague regarding homemaking and personal care activities pre-accident while providing a limited view of this sphere post accident. We have no way of ascertaining the pre-accident level of function in this area as the applicant is the only source of information and has not been particularly forth coming during testimony nor with any assessors; in particular, the OT Ms. Hisey did not visit the applicant’s residence on either of the assessment days in 2022 or 2023. I do note that the applicant reported to the respondent, upon reporting the accident, that they were living in an office in Toronto that they were renovating and they “bounced around between Toronto, Nova Scotia and New Brunswick”.
37There is no compelling or persuasive evidence before me that outlines any diminishment of the applicant’s ADL’s nor that any diminishment is directly related to the subject accident.
38I agree with the respondent’s assessors that the applicant has no impairment as a result of the accident in this sphere of function.
Social function
39Within this sphere of function, the individual’s capacity to interact appropriately and communicate effectively with other individuals is assessed.
40For the reasons that follow I find that the applicant’s presentation, on a balance of probabilities, within this sphere of function has not been negatively impacted by the subject accident.
41Dr. Yaroshevsky does not provide any clear examples of this specific area of function to support his rating. Dr. Yaroshevsky assessed that the applicant was markedly impaired in this sphere of function. Dr. Yaroshevsky does conclude that the applicant has had a life-long history of chronic moodiness and that the accident triggered a more intense bout of agitated depression, this along with mood fluctuations and a low tolerance for frustration have led to relationship problems. However, these “relationship problems” are not detailed and I find the characterization of the applicant’s pre-accident mental health status of ‘chronic moodiness’ when the medical documentation outlines more serious diagnoses and prescription medications.
42Dr. Eisen assessed that the applicant had no impairment as a result of the subject accident in this sphere of function. I prefer the evidence of Dr. Eisen for the following reasons. The applicant was guarded with Dr. Eisen and did not provide much detail regarding pre-accident socializing. The three noted reports to Ms. Hisey, OT, involved regular walking of the dog along three specified routes and now not being able to walk the dog at all; going out with a friend for chicken wings and now not at all and a romantic partner pre-accident that has now “ghosted” the applicant. There is very little in the way of compelling evidence regarding pre-accident social function. The applicant has provided limited information regarding pre-accident function in this domain and is guarded regarding post-accident function in this sphere.
43There was an effort to convey that the applicant no longer speaks with his eldest daughter. The relationship was reportedly very strong prior to the accident but then following the accident began to drop off and then was completely discontinued by the daughter. The details regarding this discontinuation of communication are vague and I note that the applicant has two other daughters with whom he has limited contact prior to and post-accident. There is no evidence that suggests that this asserted breakdown in communication is as a result of the accident.
44Looking to the report of Ms. Hisey I note that the applicant submitted to that assessor that he has a friend who will go grocery shopping with them which suggests on a balance of probabilities that the applicant does engage in socializing. Although the applicant states that they no longer go for chicken wings with a friend, there is no evidence as to why. Many of the applicant’s reports, to assessors, of difficulty in engaging in various tasks is directly related to the reports of back pain.
45I agree with the respondent’s assessors that the applicant has no impairment as a result of the accident in this sphere of function.
Concentration, persistence and pace (“CPP”)
46Within this sphere of function, the individual’s ability to perform daily tasks and stay focussed long enough to complete the tasks within a given timeframe are assessed.
47Dr. Yaroshevsky does not provide any clear examples of this specific area of function to support his rating. Dr. Yaroshevsky assessed that the applicant was markedly impaired in this sphere of function. Looking to the doctor’s review of the mental status examination he notes the applicant’s conversation is overly replete with non-essential details and tangential; the applicant often brings many irrelevant details and parenthetical comments into the explanation of an idea. In addition, Dr. Yaroshevsky notes that the applicant became confused and frustrated and unable to follow tasks to completion. These comments may relate to CPP, however, the assessor has not drawn any lines between the mental status exam and the Guides spheres of function. I find that the assessor has not adequately explained the rationale of their rating and has not adequately outlined how this presentation is as a result of the subject accident.
48I prefer the evidence of Dr. Eisen for the following reasons. Dr. Eisen assessed that the applicant had no impairment as a result of the subject accident in this sphere of function. Dr. Eisen finds that there are difficulties with concentration, persistence and pace and opines that these difficulties are as a result of somatic complaints that according to testing has the applicant perceiving themselves as completely disabled or crippled. Dr. Eisen noted that the applicant was oriented to person, place and time and that the formal attention task was completed accurately but there does appear to be an issue with delayed memory and some word finding difficulties. The assessor concludes that the presentation in this sphere of function is not related to the accident. I tend to agree with the assessment which draws the readers attention to the extensive pre-accident mental health history which appears to be considerably the same as the current presentation.
49The applicant’s work file demonstrates that they were a contributing member of the Sherwin Williams warehouse and store front team until their departure for short term disability in November of 2018; the reason cited for short term disability is the date of the November motor vehicle accident involving a moose, which occurred in New Brunswick. The applicant has been in and out of work in the years prior to the subject accident and their pre-existing mental health issues or significant physical accidents, for which WSIB claims evidence has been submitted, appear to have been a factor in each of these previous employment experiences. The mental health issues have been long-standing and yet the applicant has previously found employment, which, along with the findings of Dr. Eisen that there has been no change in the applicant’s CPP as a result of the accident, suggests to me that they have and can sustain CPP behaviours within a workplace.
50I agree with the respondent’s assessor’s that the applicant does not have any impairment to this sphere of function as a result of the subject accident.
Deterioration/Decompensation in work or work-like settings
51In this sphere of function an individual’s capacity to adapt to stressful circumstances is assessed.
52I find the Dr. Yaroshevsky report to be missing key details that would support the rating provided. Dr. Yaroshevsky assessed that the applicant was markedly impaired in this sphere of function but again does not provide any clear examples of this specific area of function to support his rating. Within the mental status exam portion of the report Dr. Yaroshevsky notes that the applicant reacted with outbursts of anger when perceiving criticism; and became threatening when he did not receive a validating response to his request not to include some portion of the interview in the report. These may be examples of decompensation in work-like settings; however, the assessor has not drawn specific examples into the specific rating system demanded by the Guides. Dr. Yaroshevsky has not outlined how this presentation is in relation to the subject accident.
53Dr. Eisen assessed that the applicant had no impairment as a result of the subject accident in this sphere of function.I prefer the evidence of Dr. Eisen for the following reasons. Dr. Eisen observed some decompensation but all related to physical issues and the doctor was clear that the presentation in this sphere of function is related to pre-existing mental health issues that are well documented in the evidence. Dr. Eisen notes that the applicant has obtained and held employment positions in the past and his current presentation has not altered as a result of the subject accident.
54There is no clear and persuasive evidence to link the current presentation in the area of adaptation to the subject accident. The noted psychiatric complaints, which are characterized as having a negative impact on concentration, persistence and pace are clearly the same or similar to many past complaints over a significant period of time. In particular, the CNRs of Dr. Abdishakur, psychiatrist who conducted an initial consult in 2009, was quite enlightening when he opines: “The patient clearly has a psychotic disorder characterized by disorganized circumstances thought patterns and significant delusions of persecution… the lack of insight will prevent him [sic] from seeking and accepting treatment”. In addition, the applicant appears to have been on ODSP in 2015 for anxiety and poor memory, a diagnosis noted in CNRs as far back as 2003.
55I agree with the respondent’s assessor and cannot find that on a balance of probabilities that the applicant’s presentation is in relation to the subject motor vehicle accident.
56The applicant has not met their burden to prove on a balance of probabilities that they are catastrophically impaired as defined by the Schedule.
Is the applicant entitled to the unapproved portion of the psychological service treatment plan?
57For the reasons that follow, I find that the applicant is not entitled to the unapproved portion of the treatment plan as it is not reasonable and necessary.
58Section 15(2)(b) establishes that an insurer is not liable to pay for medical expenses that exceed the maximum rate or amount of expenses established under the Guidelines.
59The psychological services treatment plan was completed on September 25, 2020, and submitted to the respondent October 7, 2020. The plan proposes services by a psychologist totalling $4,912.80 broken down as:
i 16 x 1.5-hour mental health and addictions counselling sessions at a rate of $224.42 per session provided on a weekly basis
ii 2 hours of counselling, mental health and additions,
iii 2.5 hours of testing,
iv 3 hours of documentation support and
v 1 hour to complete claim forms.
The respondent replied to the submission on October 27, 2020, and advised that the plan was partially approved in the amount of $3,366.23 and broken down as follows:
i 16 sessions of mental health and addictions counselling of 1 hour each at an hourly rate of $149.61
ii 2 hours of counselling denied
iii 2.5 hours of testing approved
iv 3 hours of documentation support approved
v 1 hour to complete claim forms, reduced from $200 per hour to the approved rate of $149.61 per hour.
60The respondent has approved the majority of the treatment plan, the approved portion of the treatment plan has not yet been fully incurred four years later. The applicant has provided no compelling evidence to meet their onus in demonstrating that they are entitled to the unapproved balance of the plan.
Is the applicant entitled to the unapproved portion of the chiropractic service treatment plan?
61For the reasons that follow, I find that the applicant is not entitled to the unapproved portion of the treatment plan.
62To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
63The applicant submits that the testimony and CNRs of Dr. Perelman speak to the need for approval of the chiropractic treatment plan. Going further, the applicant submitted that pain relief is an acceptable goal of treatment.
64The respondent submits that the denied services were properly denied following a s. 44 insurers examination finding parts of the treatment plan not reasonable and necessary.
65The applicant’s assertion that the testimony and CNRs of Dr. Perelman speak to the need for chiropractic treatment is not supported by the evidence. Pain is obviously the reason for seeing Dr. Perelman who, on a semi-regular basis, is administering injections which diminish the applicant’s pain. The testimony points to the injections becoming more regular with the implication being that the treatment is less effective. Dr. Perelman has suggested alternatives to the injections be explored. The applicant was attending chiropractic appointments concurrently while receiving the injections. It is not clear to me that injections are proof of the need for the chiropractic treatment, nor that either was working to help the applicant reach their goal. The applicant has not addressed how the goal of pain relief would be met to a reasonable degree nor that the overall cost of achieving the goal is reasonable.
66There is a s. 44 report by Dr. Yee on which the respondent relied in partially approving the treatment plan. Dr. Yee found that the applicant’s injuries were largely minor but that they would not be classified within the minor injury guideline due to a pre-existing right wrist injury and back pain. Dr. Yee also assessed whether the treatment plan by Dr. Coghlan was reasonable and necessary. Dr. Yee considered the treatment plan to be partially reasonable and necessary. The respondent, working with the report approved everything recommended by Dr. Yee and went further, approving 8 total sessions of active therapy and the documentation support activity recommended by Dr. Coghlan. Approved services include: 1 education session, 8 of 15 chiropractic sessions, hot/cold gel packs, a back support, TENS unit accessories, cervical pillow, Biofreeze, document support activities and 5 sessions of acupuncture. Denied services include 7 chiropractic sessions, 8 sessions of massage, 1 full body assessment and 5 sessions by an osteopath.
67The insurer has partially approved the treatment plan, the treatment plan has not yet been fully utilized. The applicant has provided no compelling evidence to meet their onus in demonstrating that they are entitled to the unapproved balance of the plan.
68I agree with the respondent and their assessor that the unapproved amount is not reasonable and necessary. I find that the applicant is not entitled to the unapproved portion of the treatment plan.
Is the applicant entitled to the denied catastrophic impairment assessment?
69For the reasons that follow I find that this treatment plan is not reasonable and necessary.
70Section 25(5)(a) outlines that an insurer shall not pay more than a total of $2,000.00 for conducting any one assessment and for preparing reports in connection with it.
71The catastrophic assessments plan was completed on February 24, 2021, and submitted to the respondent February 24, 2021. The plan proposes assessments and assessment related activities totalling $17,302.50 broken down as follows:
i Total body assessment $2,000.00
ii Documentation support activity $250.00
iii Assessment Mental health and addictions $2,000.00
iv Assessment Mental health and addictions $2,000.00
v Documentation support activity $2,000.00
vi Planning service $2,000.00
vii Documentation support for claim form $200.00
viii Documentation support activity $2,000.00
ix Catastrophic determination assessment $1,000.00
The respondent replied to the assessment proposal on March 11, 2021, and outlined that they do not have enough information on hand to determine if the recommendations are appropriate and recommended a s.44 assessment comprised of a paper review and that a final determination on the assessment proposal cannot be made until the paper review is complete. On March 12, 2021, the respondent wrote to the applicant requesting family physician and psychiatric records to support the requested paper review. The respondent continued to request the documentation to proceed with the paper review on November 23, 2021, January 6, 2022, January 13, 2022, and on April 8, 2022.
72I find it striking the speed with which the s. 25 assessments were completed in comparison to the extreme delays in responding to the respondent’s repeated requests over a year for medical documentation. The respondent on December 23, 2021, replies to the applicant’s submission of an OCF-19 by Dr. Andrea Herschorn and outlines that they will require a s. 44 insurer’s examination. Importantly, the OCF-19 has been completed by Dr. Herschorn based on the assessments proposed on February 24, 2021, which were completed on August 10, 2021 by Dr. Vitebski, October 14, 2021 by Dr. Getahun, November 15, 2021 by Dr. Yaroshevsky and November 21, 2021 by Dr. Herschorn; all of which were completed prior to approval by the respondent and while there was an ongoing request for documentation for the proposed paper review.
73The paper review requested to answer the applicant’s request for s. 25 catastrophic determination reports was received by the respondent from Dr. Levy on March 21, 2023. Dr. Levy determined that the catastrophic determination assessments were not reasonable and necessary.
74It is perplexing that the applicant has sought a catastrophic determination while still not even having exhausted medical rehabilitation benefits that would have been available to an applicant under the minor injury guideline. The s. 25 assessments were conducted by Dr. Vitebski, chiropractor, Dr. Getahun, orthopaedic surgeon and Dr. Yaroshevsky, psychiatrist, Dr. Andrea Herschorn, author of the applicant’s Catastrophic Determination Report executive summary, did not see the applicant. When considering the fees allowable under the schedule it would be reasonable to assume three full assessments were conducted at $2,000.00 each and Dr. Herschorn’s involvement is related to the Catastrophic determination assessment for $1,000.00 for a total of $7,000.00, plus taxes. The applicant has submitted a criterion 8 claim for catastrophic determination, in which case only the report of Dr. Yaroshevsky is relevant.
75I agree with the respondent, it was not reasonable and necessary to pursue an OCF-19 because the applicant has only incurred less than $3,300.00 in treatment and the cost associated is unreasonable because it is more than double that which is set out as the maximum per assessment in s. 25(5)(a).
Interest
76As there are no overdue payments for medical, rehabilitation or specified benefits interest does not apply pursuant to s. 51 of the Schedule.
Award
77The 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.
78No evidence or submissions were made by the applicant regarding the basis for an award.
79The respondent submits that there is no basis for an award and submits that it should be denied because there is no evidence or submissions that an award is warranted.
80I find that the applicant has not discharged their burden to outline how the respondent unreasonably withheld or delayed payment of benefits to the applicant and therefore I find that no award is payable.
ORDER
81For the reasons above I find that the applicant:
i find that the applicant is statue barred from proceeding to hearing for income replacement benefits, as per s. 55, because they failed to file the Disability Certificate (OCF-3) within 104 weeks of the accident.
ii. has not sustained a catastrophic impairment as a result of the subject accident, as defined by the Schedule.
iii. is not entitled to the unapproved portions of the assessments/treatment plans/OCF-18s proposed by 101 Physio and Assessments, as follows:
i $2,630.38 ($4,240.67 less $1,610.29 approved) for chiropractic services, in a treatment plan dated March 11, 2021.
ii $17,302.50 for a catastrophic assessment, in a treatment plan dated February 24, 2021; and
iii $1,546.57 ($4,912.80 less $3,366.23 approved) for psychological services, in a treatment plan dated September 25, 2020.
iv.
v. is not entitled to interest on any overdue payment of benefits.
v. that the respondent is not liable to pay an award under s.10 of Reg 664.
Released: November 7, 2024
Timothy Porter
Adjudicator