Licence Appeal Tribunal File Number: 23-006079/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:
Ryan Ouderkirk
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR:
John Mazzilli
APPEARANCES:
For the Applicant:
Lawson Hennick, Counsel
For the Respondent:
Mahroze Khan, Counsel
Erica Lewin, Counsel
Court Reporters:
Micha Salazar
Joyce Espino
HEARD by Videoconference:
August 26-30, 2024
OVERVIEW
1Ryan Ouderkirk, the (“applicant”), was involved in an automobile accident on March 30, 2020, 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 Belair Direct Insurance Company, the (“respondent”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to $5,814.98 for pharmacotherapy, proposed by Apollo Applied Research in a treatment plan/OCF-18 (“treatment plan”) dated August 12, 2022?
iii. Is the applicant entitled to $5,609.43 for chiropractic services, proposed by Complete Balance Health Centre (Concussion Ax) in a treatment plan dated August 18, 2022?
iv. Is the applicant entitled to $1,102.75 for occupational therapy services, proposed by Mind Connections Inc. in a treatment plan dated September 19, 2022?
v. Is the applicant entitled to $12,430.00 for a catastrophic assessment, proposed by Downsview Healthcare Inc. in a treatment plan dated October 1, 2022?
vi. Is the applicant entitled $2,738.68 for physiotherapy services, proposed by Activa Kitchener in a treatment plan dated August 25, 2022?
vii. Is the applicant entitled to $762.96 for occupational therapy services, proposed by Mind Connections Inc. in a treatment plan dated January 7, 2023?
viii. Is the applicant entitled to $3,491.44 for occupational therapy services, proposed by Mind Connections Inc. in a treatment plan dated February 27, 2023?
ix. Is the applicant entitled to $3,681.10 for chiropractic services, proposed by Complete Balance Health Centre (Concussion Ax) in a treatment plan dated April 21, 2023?
x. Is the applicant entitled to $1,297.13 for occupational therapy services, proposed by Mind Connections Inc. in a treatment plan dated July 25, 2023?
xi. Is the applicant entitled to $300.50 ($4,337.50 less $4,037.00 approved) for ergonomic equipment, proposed by Mind Connections Inc. in a treatment plan dated September 5, 2023?
xii. Is the applicant entitled to $3,963.35 for therapeutic mattress, pillows, etc., proposed by Mind Connections Inc. in a treatment plan dated May 26, 2023?
xiii. Is the applicant entitled to $2,583.56 for occupational therapy services, proposed by Mind Connections Inc. in a treatment plan dated October 11, 2023?
xiv. Is the applicant entitled to $1,297.13 for occupational therapy services, proposed by Mind Connections Inc. in a treatment plan dated November 16, 2023?
xv. Is the applicant entitled to interest on any overdue payment of benefits?
3Withdrawn Issues: At the outset of the hearing the applicant withdrew attendant care and a special award as issues in dispute.
RESULT
4The applicant is catastrophically impaired under criterion 8 of the Schedule as a result of the accident.
5The applicant is entitled to all the proposed treatment plans and assessments except the August 12, 2022, treatment plan for pharmacotherapy and the September 5, 2023, remaining balance for ergonomic equipment. Since the treatment plans and assessments are payable, interest is also payable.
PROCEDURAL ISSUE
6At the outset of the hearing, the respondent advised that Dr. Jwely, it’s s. 44 psychiatric catastrophic impairment (CAT) assessor and witness for the respondent, was in Libya. The respondent submitted that it had difficulties trying to reach Dr. Jwely and that Dr. Jwely may have difficulties trying to login as it argues that the Tribunal’s Zoom capabilities do not extend to Libya. The respondent further argues that if Dr. Jwely is not able to testify because of technical difficulties then his report ought to be assigned full weight in my decision. This request was also sent to the Tribunal and the applicant’s counsel on August 26th, 2024, the first day of the hearing. I advised the respondent to keep trying to get a hold of Dr. Jwely and that he could testify by telephone at the hearing on Thursday August 29th, 2024, in accordance with our mutually agreed upon hearing schedule.
7On Thursday August the 29, 2024 Dr. Jwely did not join the videoconference hearing either by video or by way of telephone. The respondent advised me that neither she nor her office were able to reach Dr. Jwely after repeated attempts through the week by telephone. She argued that I ought to extend the hearing past its assigned date and allow Dr. Jwely to testify once he returns from Libya sometime in early September or that I should assign full weight to Dr. Jwely’s report if I do not extend the hearing past it’s scheduled time limit.
8The applicant submitted that I should allow little to no weight to Dr. Jwely’s report as the respondent has been aware of the hearing for an awfully long time and ought to have known that their witness would be out of the country during the scheduled hearing. He further submits that both counsel’s schedules and Dr. Jwely’s schedule would have to be canvassed for mutually agreeable dates and this delay would be prejudicial to his client.
9I agreed with the applicant and denied the respondent’s request to extend the hearing past its originally scheduled time limit in accordance with the Licence Appeal Tribunal’s Rule 3.1 (b) which ensures the efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal. A notice of hearing was sent to the parties on April 1, 2024, almost four months in advance of the hearing date. On July 26, 2024, one month before the scheduled hearing, the respondent submitted their witness list and Dr. Jwely was on this list. Even if Zoom service does not extend to Jr. Jwely’s location, the respondent provided me with no reason to conclude that telephone would not be available in Libya. Furthermore, when I canvassed the respondent for an available date after the scheduled hearing to hear Dr. Jwely’s testimony, the respondent was unable to provide me with an alternative date but stated that they would have to speak to the doctor upon his return. I advised the parties that the hearing would continue until its scheduled end date and not beyond. I will give reasons for the weight I assigned to Dr. Jwely’s report in my decision.
ANALYSIS
The applicant sustained a catastrophic impairment under criterion 8
10I find that the applicant has proven on a balance of probabilities that he is catastrophically impaired under Criterion 8 as a result of the accident.
11In this matter, the applicant seeks a determination of catastrophic impairment under Criteria 7 and 8.
12To determine whether an insured person is catastrophically impaired under Criterion 8, the Tribunal considers whether the accident caused a mental or behavioral disorder, the impact of the disorder to the person’s life, and the level of impairment as described in section 3.1(1)8 of the Schedule. The applicant bears the onus to prove on a balance of probabilities that he is catastrophically impaired. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical test: Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571.
13Criterion 8 requires evidence of the insured person’s impairment levels due to a mental or behavioural disorder. Impairment levels are to be assessed in relation to four functional domains: (1) Activities of Daily Living (ADL); (2) Social Functioning (SF); (3) Concentration, Persistence and Pace (CPP); and (4) Adaptation (deterioration or decomposition in work or work like settings) (AD). To meet the Schedule’s threshold for a catastrophic impairment designation under Criterion 8, an individual must have 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 the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (Guides). Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The spheres of functioning and the levels of impairment are outlined in the chart below:
[14]
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)
15The applicant submits that he has a marked impairment in the domains of social function, concentration persistence, pace, and adaptation, caused by mental disorders that he sustained in the motor vehicle accident.
16In contrast, the respondent submits that the applicant does not have a marked impairment in any of the four areas of function directly attributed to the accident and therefore does not meet the test under Criterion 8.
17As both parties agree that the applicant has not sustained a marked impairment in the ADL domain, my review of the evidence will focus on whether the applicant suffers from a marked impairment in the SF, CPP, and AD domains.
Mental or Behavioral Disorder
18Dr. Yaroshevsky, psychiatrist, completed a catastrophic impairment determination report dated February 23, 2023, for the applicant. He diagnosed the applicant with major depressive episode disorder, single episode, severe, without psychotic features.
19In contrast Dr. Jwely diagnosed the applicant with DSM-5-TR adjustment disorder as a result from the traumatic accident on March 30, 2020. The respondent relies on Dr. Jwely’s catastrophic impairment report dated October 18, 2023.
20The reports prepared by Dr. Yaroshevsky, Dr. Jwely and Dr. Yaroshevsky’s testimony and ability to cross-examine were sufficient for me to accept that the applicant sustained a mental disorder attributable to the subject accident.
Social Functioning
21I find that the applicant has a class 4 marked impairment in the domain of social function.
22The Guides specify that social 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, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Strengths in social functioning may be documented by an individual’s ability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities. Cooperative behaviour, consideration for others, awareness of others’ sensitivities, and social maturity also need to be considered.
23The applicant’s position is that he has a class 4 marked impairment whereas the respondent submits that the applicant has a class 2 or mild impairment in this domain.
24To support his position, the applicant testified that his social life has deteriorated since the accident and that he avoids family and friends and new relationships because he now has nothing to offer. He becomes agitated and snaps at them over minor things because of his frustration on how his life has severely changed since the accident. His depression of not being able to work in his physically demanding job has caused him to be angry at everything.
25The applicant testified that pre-accident, he used to engage in several sports, leisure and social activities including hockey, golf, baseball, fishing, and playing darts with friends and going to church regularly. He testified that he can no longer participate in these activities because of his concussive symptomology and because he lives with chronic pain because of the subject accident which have caused him to have herniated disks in his neck, and in his mid and lower back. The applicant testified that he lives with restricted movement, burning sensations sharp stabbing pains, headaches, and is often bedridden. He stated that he often has flashbacks of the accident and that his social life now revolves around watching YouTube videos and occasionally chatting on social media or by telephone with friends.
26In his report Dr. Yaroshevsky opines that from a psychiatric perspective, the applicant’s coping mechanisms are quite impaired. He opines that the applicant has been continuously impaired in all areas of his emotional, cognitive, and social functioning since the accident. He further stated that the applicant avoids many activities he previously enjoyed because of a declining interest in other people and things. He elaborated that the applicant’s emotional response to these losses is that he does not feel useful, competent or that his life has much meaning now and that he tends to avoid close interpersonal relationships and social interaction. Dr. Yaroshevsky concluded that the applicant remains severely symptomatic and disturbed. He opines that with chronic illness, unfortunately the regression often becomes permanent.
27The respondent argues that the applicant lives with a roommate and has a good network of friends as he traveled to Montreal to see his godchild and stayed with a friend. The respondent submitted that the applicant had a romantic relationship that ended in 2022 and that he continues to maintain friendships within his church group. It again argues that I should assign full weight to the insurer’s catastrophic impairment report prepared by Dr. Jwely.
28Dr. Jwely’s reasons for the rating he assigned regarding social function primarily rely upon the occupational therapy report dated October 18, 2023, by Ali Habash, occupational therapist, and a test Dr. Jwely administered called the World Health Disability Assessment Schedule, Version 2.0 (“WHODAS 2.0”). This test does focus on the considerations for the SF domain; however, it appears to be a combination of the activities of daily living domain and the social function domain. The WHODAS 2.0 test covers six areas, Cognition, Mobility, Self-care, Getting Along, Life Activities, and Participation.
29The applicants reported score rating by Dr. Jwely regarding the WHODAS 2.0 test is as follows:
Cognition - understanding and communicating: Mr. Ouderkirk has a score of 23 in this domain, which is a moderate score. This suggests that he may have some difficulties with understanding and communicating, which could impact his ability to participate in daily activities and communicate effectively with others.
Mobility - moving and getting around: Mr. Ouderkirk has a score of 22 in this domain, which is also a moderate score. This suggests that he may have some difficulties with moving around, which could impact his ability to perform daily activities such as walking, standing, or climbing stairs.
Self-care - hygiene, dressing, eating, and staying alone: Mr. Ouderkirk has a score of 13 in this domain, which is relatively low. This suggests that he may need some assistance with tasks related to hygiene, dressing, and eating. He may also have difficulty staying alone, which could impact his ability to live independently.
Getting along - interacting with other people: Mr. Ouderkirk has a score of 13 in this domain, which is also relatively low. This suggests that he may have difficulty interacting with others, which could impact his ability to build and maintain relationships.
Life activities - domestic responsibilities, leisure, work, and school: Mr. Ouderkirk has a score of 37 in this domain, which is the highest score among all six domains. This suggests that he has good functioning in areas such as domestic responsibilities, leisure, work, and school.
Participation - joining in community activities: Mr. Ouderkirk has a score of 31 in this domain, which is a moderate score. This suggests that he has some ability to participate in community activities, such as leisure activities or social event.
30Dr. Jwely in his test score ranking for each of the six parameters above does not have an explanation on the weight given to each section and there is no explanation of the questions administered or how he has considered each test to produce an impairment rating for the domain of social function. Dr. Jwely was not available to be cross-examined on how he reached the conclusions in his report. I therefore placed little weight to the report of Dr. Jwely.
31I assigned more weight to the testimony and report of Dr. Yaroshevsky as the respondent had the opportunity for cross-examination and because I considered the applicants inability to cross examine Dr. Jwely.
32The applicant testified that he has moved on several occasions since the accident. At the time of the accident, he was living in a basement apartment of a friend’s house, after the accident he had to move in with his mother but later moved out because he became frustrated and was snapping at his mother. The applicant testified that he also constantly questions his own self worth. He testified that he currently lives in an apartment that is shared and that he spends much of his time in his bedroom to avoid conflict with his roommate.
33In his testimony, the applicant agreed that he traveled to Montreal, however he was accompanied by a chaperone who drove the entire way making frequent stops due to his anxiety and pain. When in Montreal, the applicant did not go outside of the home where he was staying and spent most of the weekend visit on the couch and slept. This further supports a finding of a class 4 impairment in the domain of social function.
34Furthermore, the fact that the applicant’s long term romantic relationship ended in 2022 is indicative that he cannot maintain a romantic relationship. Although he does maintain some friendships through telephone or social media and with his church group, he has been unable to attend church in four years due to fear of strangers and others as interacting and actively participating in group activities is a non-starter for him.
35I therefore accept Dr. Yaroshevsky’s conclusion that the applicant’s functional impairments in affect regulation and loss of motivation significantly restrict his relationships with family, friends, and community members. He has become reclusive, isolative, and avoidant of social and familial interactions.
36I find that the applicant has suffered a marked impairment in the domain of social functioning.
Concentration, Persistence and Pace
37I find that the applicant has a class 4 marked impairment in the domain of concentration persistence and pace.
38The Guides specify that the factors to be considered under this domain are concentration, persistence, and pace needed to perform many activities of daily living, including task completion. Task completion refers to the ability to sustain focused attention long enough to complete tasks commonly found in activities of daily living to sustain focused attention long enough to complete tasks commonly found in activities of daily living or at work. To consider strength and weaknesses in mental concentration, there is a consideration of frequency of errors, the time it takes to complete the task, and the extent to which assistance is required to complete the tasks.
39The applicant’s position is that he has a marked impairment in the CPP domain. To support his position, the applicant testified that he has difficulty with memory loss, he is distracted, preoccupied, upset, has difficulty sleeping, and has chronic somatic pain because of the accident.
40He testified that he has followed his doctors and specialists’ recommendations for his treatment since the accident however he has not improved. He testified that he tried to go back to work as a forklift driver, a delivery driver, and even tried to complete his real estate courses that he had almost fully completed prior to the accident but because his memory is not what it used to be, he was unable to complete his tests successfully. He testified that he wants to continue to work however his family doctor had advised him to quit his job as a forklift driver due to his physical and psychological impairments.
41The respondent argued that the applicant has no impairment in the domain of concentration persistence and pace. They argue that the applicant participated in conversation, followed instructions, and provided relevant and coherent details in his testimony and at the time of Dr. Jwely’s assessment. They argue that after the accident the applicant has learned coding on his own in his spare time and that his ability to play chess online speaks to his level of cognitive function.
42Dr. Jwely in his report opted that the applicant was able to attend to the assessment process without noted difficulty. He effectively participated in conversation, followed instructions, and provided relevant and coherent details. It went on to say that he currently continues to participate in various aspects of his daily activities, while primarily attributing his residual functional limitations with respect to the heavier and more strenuous activities to ongoing pain, and reduced physical tolerances associated with the injuries he sustained in the subject accident.
43I agree with the applicant and find that the applicant has a class 4 marked impairment in the domain of concentration persistence and pace. While I agree that the applicant communicated effectively and coherently throughout the hearing, this was done with plenty of breaks due to pain. I also disagree with Dr. Jwely’s finding of no impairment in this domain because no disturbances were found in the applicant’s concentration or memory, and it was noted in his report that the applicant had a good understanding and sophisticated knowledge of his medical condition and political issues.
44It appears that Dr. Jwely did not give much credence to the occupational therapists notes from Ali Habash that appear in Dr. Jwely’s own report and state that the applicant is only able to pace and persist up until the point where his symptoms and impairments prevent him from further engaging in whatever he is doing. At that point, the applicant’s typical response is to elicit help from others, take breaks, or avoid a given task altogether.
45Furthermore, while it is admirable that the applicant has continued to try to work or try new things that could lead to work, the applicant has continually failed in this regard. The applicant tried on numerous occasions to work, whether it be as a part time delivery driver, a forklift operator, or computer coder (noting this was not a paid position but rather an attempt by a family friend to engage the applicant in something that was not a physically demanding job or activity). Another example of the applicant’s limited ability to sustain focus to complete tasks in commonly activities of daily living or work settings is the fact that he was unable to complete his final real estate course after numerous attempts due to concentration and memory issues.
46Additionally, Dr. Yarchevsky’s clinical impressions and diagnosis are more aligned with the applicant’s testimony and from the testimony of the applicant’s long term family doctor, Dr. Khansky, that post accident the applicant is stressed to be around people, his attention has broken down, he has difficulty in basic paperwork, completing tasks, his memory concentration and attention have all broken down.
47I find that Dr. Yarchevsky’s conclusion in both his report and testimony that the applicant experiences significant difficulty in concentration and attention due to his prominent anxiety and severe depression are consistent with a class 4 impairment in the domain of concentration, persistence, and pace.
48I find that the applicant has sustained a class 4 marked impairment in the domain of concentration, persistence, and pace.
Adaptation
49I find that the applicant has a class 4 marked impairment in the domain of adaptation.
50The Guides specify that adaptation (deterioration or decompensation in work or work like settings) refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances, the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder, that is, decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers.
51The applicant’s position is that he has a marked impairment in the AD domain. The applicant testified that he is no longer able to participate in most of his leisure and recreational activities, as well as his employment because of the accident. He submits that he has difficulty in concentrating and has difficulty with his memory at times. He submits that he has difficulty sleeping, suffers from headaches and pain all over his body, and has difficulty concentrating and sitting in the same position. The applicant testified that this has made him feel not useful, competent, and that his life does not have much meaning any longer and he is miserable as a result. He gets angry easily and tends to snap at people, so he avoids social gatherings and socializing in general. He stresses about what his life has turned into since the accident and continually tries to find answers for his somatic pain.
52In his report Dr. Yaroshevsky opines that the applicant has been continuously impaired in all areas of his emotional, cognitive, and social functioning since the accident. He is socially withdrawn. His mood is depressed and anxious. He has become avoidant of the world and over-reacts to sensory stimulation. He is irritable and impatient. He further opines that the applicant is not a candidate for job retraining given his poor level of functioning and that any failure in his work-related activities would likely increase his depression and may lead to impulsive self-destructive action.
53Dr. Yaroshevsky concludes his opinion that the applicant is of a sufficient incapacitating degree, and therefore from a psychological perspective, the applicant does suffer a complete inability to carry on a normal life.
54The respondent submits that the applicant has a class 1 or no impairment in the domain of adaptation. It argues that the applicant has adapted to his functional impairments and would be able to maintain a sedentary job. They argue that the applicant has taught himself coding and plays chess online. They further argue that the applicant continues to drive and grocery shop independently, and that he has a social life as he maintains contact with his church friends. The respondent also submits that although the applicant may not be able to do the same things as he once did, he is still active as he is able to walk for an hour a day. They further argue that the applicants regular use of marijuana contributes to his brain fog and lack of energy. They argue that the applicant has not taken medication for his headaches and that he did not undergo the chronic pain management program that his family doctor referred him to.
55Dr. Jwely in his report opined that the applicant could respond appropriately to changes in his environment, be aware of normal hazards, and take appropriate precautions. He demonstrated good insight and judgment into his current physical limitations. He indicated that he continues to drive a motor vehicle with no concerns, which is considered a highly cognitive demanding task. He goes on to state that it appears that he continues to be challenged by his residual physical limitations, including symptoms related to pain and reduced activity tolerances, which negatively challenges his efforts to participate in the more physically demanding and formal activities, although he reported going back to work.
56Dr. Kahansky testified that the applicant was prescribed various medications for his physical and psychological impairments. Dr. Kahansky testified that all these medications either did not work or had adverse effects that caused the applicant to be even more ill and as such were discontinued by the doctor. Dr. Kahansky also noted that antidepressants do not work well with people with concussions, and that he was not surprised that an antidepressant did not work for the applicant as he sustained a concussion from the accident.
57With respect to the applicant’s marijuana use, Dr. Kahansky did not provide any clinical insights however he testified that a lot of people in the applicant’s situation tend to self medicate.
58Dr. Kahansky referred the applicant to a chronic pain management program and as noted above, the applicant did not attend. The applicant testified that he did not go to the chronic pain program because his own research showed that many of these clinics will medicate with injections which he did not want to do. The applicant’s research is corroborated with the chronic pain report from Dr. Razvi, which states that many people are hesitant to undergo a chronic pain management program because they do not want to have injections put into their body. The applicant’s adverse effects from other medications have contributed to his increased hesitation and anxiety to receive injections.
59I agreed with the applicant and find that the applicant has a class 4 marked impairment in adaptation. Dr. Jwely’s report of the applicant is clearly in contrast to the report of Dr. Yaroshevsky. I placed little weight to Dr. Jwely’s report as my own observations through the hearing are more in line with the findings in Dr. Yaroshevsky’s report and testimony and are further consistent with the testimony of the applicant’s long time family doctor, Dr. Kahansky. Furthermore, Dr. Jwely did not even mention the applicant’s referral and assessment to the Canadian Mental Health Society in his document review as part of the formation of his catastrophic impairment report. As Dr. Jewly was not present to testify to any of the apparent deficiencies in his report, I am unable to place much weight on his conclusions.
60Furthermore, in his rebuttal report Dr. Yaroshevsky outlines the score of 41-50 on a Global Assessment of Functioning test (GAF) administered by Dr. Jwely, which according to Dr. Yaroshevsky means, any serious impairment in social, occupational, or school functioning. Dr. Jwely’s rating in this regard are conflicting with his rating of no impairment in three of the four domains under Criterion 8. For this reason, even if I set aside my concerns with Dr. Jewly’s failure to attend the hearing and undergo cross-examination, I find that the internal inconsistency between his test results and his ratings makes his report less reliable than other expert evidence before me.
61The applicant has continually followed his doctors’ recommendations, seeks answers to his physical and psychological impairments, has tried to return to work, tried coding, and tried to finish his real estate courses. However, as Dr. Kahansky and Dr. Yaroshevsky testified, trying, and completing are two different things. I accept Dr. Yaroshevsky’s analysis of the applicant that he will decompensate or have difficulty maintaining activities of daily living, continuing in person social relationships, and completing tasks.
62On all the evidence before me, I find that on a balance of probabilities the applicant has a class 4 marked impairment in the domain of Adaptation.
63Having found that the applicant has three class 4 marked impairments in the domains of social function, concentration persistence and pace, and adaptation, I find that the applicant is catastrophically impaired in accordance with Criterion 8 of the Schedule. As a result, it is not necessary for me to consider whether the applicant is catastrophically impaired under criterion 7.
Is the applicant entitled to the treatment plans In dispute?
Occupation Therapy Treatment Plans
64I find that the applicant is entitled to all the disputed treatment plans for occupational therapy.
65To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
66The applicant submits that the treatment plans for occupational therapy are reasonable and necessary because the goals of the treatment plans are to improve his cognitive abilities as it relates to memory, attention and concentration, community integration, and with pain management.
67The respondent submits that the treatment plans are not reasonable or necessary and takes exception with the fact that a medical professional was not the person that recommended the treatment plans.
68I agreed with the applicant and Dr. Khansky that the treatment plans are reasonable and necessary. Further, the respondent’s own occupation therapist Ali Habash opines that the applicant will benefit from ongoing physiotherapy, message therapy, and occupational therapy at a frequency of once a week, with sessions lasting between one to two hours depending on the clinical goals set for a given session.
69The applicant is entitled to all the treatment plans for occupational therapy. Since the benefits are payable, interest is also payable in accordance with s. 51 of the Schedule.
Chiropractic and Physiotherapy Treatment Plans
70I find that the applicant is entitled to all the chiropractic and physiotherapy treatment plans.
71The applicant submits that all the treatment plans are reasonable and necessary as part of a multi-disciplinary approach to his chronic pain condition.
72The applicant relies on the chronic pain report of Dr. Razvi, chronic pain assessor and chronic pain management physician. Dr. Razvi opines that the applicant would benefit from ongoing physiotherapy, massage therapy and chiropractic therapy. He opines that range of motion and strengthening are an extremely important part of a multi-disciplinary approach to the applicant’s chronic pain condition. In chronic pain syndromes, there is a cycle of pain leading to disuse of muscles which in turn leads to atrophy and weakening of muscles. As pain starts to decrease in a multi disciplinary setting, it is important to ensure range of motion and strength are recovered.
73The respondent submits that the treatment plans are not reasonable and necessary as the applicant has not improved from receiving these treatments in the past.
74I find that the treatment plans for chiropractic and physiotherapy treatments are reasonable and necessary as part of a multi-disciplinary approach as outlined in Dr. Razvi’s chronic pain report and from the testimony of Dr. Khansky. Since the benefits are payable interest is also payable.
Catastrophic Impairment Assessments
75I find that the applicant is entitled to the balance owing for the catastrophic impairment assessments.
76The applicant submits that the assessments are reasonable and necessary to fulfil the onus of proving that the applicant is catastrophically impaired. They submit that the treatment and assessment plans are multidisciplinary catastrophic assessments required by the applicant to help prove the applicant’s onus on both Criterion 7 and 8. He submits that $9,040.00 has been paid by the insurer, however there is a shortfall of $12,430.00, outstanding from Downsview Healthcare Inc.
77The respondent is of the opinion that the applicant is not catastrophically impaired and as such the assessments are not reasonable or necessary.
78I find that the applicant is entitled to the balance owing of $12,430.00 for the catastrophic impairment assessments. The respondent did not provide any evidence regarding the catastrophic impairment invoices, nor was I pointed to a denial letter by the insurer in this regard. Since the assessments are payable interest is also payable.
Ergonomic Equipment, Therapeutic Mattress, and Pillow
79I find that the applicant is entitled to, the therapeutic mattress, and pillow and that the applicant is not entitled to $300.50 from the treatment plan dated September 5, 2023.
80The applicant submits that the above items are reasonable and necessary and will help manage his chronic pain and poor sleep.
81The respondent argues that the items are not reasonable and necessary and relies on the occupational therapy report prepared by Ali Habash.
82In her report many of the items were deemed by the respondent to be reasonable and necessary are in relation to home office equipment such as ergonomic desk and chair and various cables and accessories. The remaining items that were not deemed reasonable and necessary are a power dock and wireless charging dock.
83I agree with the applicant that the ergonomic equipment, therapeutic mattress, and pillow are reasonable and necessary and accepted Dr. Khansky’s testimony that these are relatively inexpensive items that can help improve the applicant’s state. I disagree with the applicant that a power dock and wireless charging dock are reasonable and necessary.
Pharmacotherapy Treatment Plan
84I find that the applicant is not entitled to the treatment plan for three grams of medical cannabis per day.
85The applicant submits that this plan is reasonable and necessary as he has explored the conventional route of medicine and it has not worked and finds that cannabis does help him cope daily and that one gram per day is what he currently is taking.
86The respondent submits that the treatment plan is not reasonable or necessary.
87I find that the applicant is not entitled to the treatment plan because the plan is for three grams per day of cannabis and the applicant by his own testimony stated that he only requires one gram of cannabis per day.
Interest
88Pursuant to s. 51 of the Schedule, interest is payable on the ordered treatment plans.
ORDER
89I order the following:
i. The applicant is catastrophically impaired in accordance with Criterion 8.
ii. The applicant is entitled to all the occupational therapy treatment plans plus interest.
iii. The applicant is entitled to $3,963.35 for a therapeutic mattress, pillows, etc.
iv. The applicant is not entitled to $300.50 for ergonomic equipment.
v. The applicant is entitled to $12,430.00 for a catastrophic examination.
vi. The applicant is entitled to the two treatment plans for chiropractic services and one physiotherapy treatment plan.
vii. Since the benefits are payable interest on the above items is also payable in accordance with s. 51 of the Schedule.
viii. The applicant is not entitled to the treatment plan for pharmacotherapy. Since this benefit is not payable interest is not payable.
Released: November 7, 2024
__________________________
John Mazzilli
Adjudicator