Licence Appeal Tribunal File Number: 23-007218/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:
Pamela Fazio- Bastien
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
John Mazzilli
APPEARANCES:
For the Applicant:
Victoria Yang, Counsel
For the Respondent:
Darrell March, Counsel
Court Reporters:
Bruce Porter Diana Persaud
HEARD: by Videoconference:
July 29,30,31, August 1 & 6, 2024
OVERVIEW
1Pamela Fazio-Bastien, the (“applicant”), was involved in an automobile accident on October 3, 2019, 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.
ISSUES
2The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule? Note: Criteria 4, 6, 7, and 8.
ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from December 15, 2021, to date and ongoing?
iii. Is the applicant entitled to $4,898.51 for central vacuum system, proposed by Total Healthcare Solutions, in a treatment plan/OCF-18 (“plan”) submitted on April 21, 2020?
iv. Is the applicant entitled to $2,895.50 for occupational therapy services, proposed by Total Healthcare Solutions, in a plan submitted on November 9, 2021?
v. Is the applicant entitled to $986.00 for physiotherapy services, proposed by Total Healthcare Solutions, in a plan submitted on January 25, 2023?
vi. Is the applicant entitled to $6,683.88 for occupational therapy services, proposed by Total Healthcare Solutions, in a plan submitted on June 4, 2021?
vii. Is the applicant entitled to $2,100.25 ($7,006.00 less $4,905.75 approved) for a catastrophic determination assessment, proposed by Total Page 3 of 7 Healthcare Solutions, in a treatment plan submitted on September 14, 2021?
viii. Is the applicant entitled to attendant care benefits in the amount of $2,490.29 per month from April 1, 2020, to date and ongoing?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
3Withdrawn Issues: At the hearing, the applicant withdrew her claims for catastrophic impairment under Criteria 6, 7, and 8, and her claim for attendant care benefits.
RESULT
4The applicant is not catastrophically impaired in accordance with the Schedule under Criterion 4.
5The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from December 15, 2021, to date and ongoing. Since this benefit is not payable interest does not apply.
6The applicant is not entitled to an income replacement benefit in the amount of $18.40 per week from September 12, 2022, to December 31, 2022. Since this benefit is not payable interest does not apply.
7The applicant is not entitled to $4,898.51 for a central vacuum system. Since this benefit is not payable interest does not apply.
8The applicant is not entitled to $2,100.25 for the cost of a catastrophic determination assessment. Since this benefit is not payable interest does not apply.
9The applicant is entitled to $2,895.50 for occupational therapy services.
10The applicant is entitled to $6,683.88 for occupational therapy services.
11The applicant is entitled to $986.00 for physiotherapy services.
12Interest applies to all overdue payments of benefits in accordance with s.51 of the Schedule.
Procedural ISSUES
The respondent’s first motion
13On June 24, 2024, the respondent filed a Notice of Motion with the Tribunal because various documents requested from the applicant and ordered to be produced in the Case Conference Report and Order dated December 13, 2023, had not been produced by the applicant in accordance with the document disclosure deadlines, and in some cases not disclosed at all. The documents requested were various clinical notes and records from treating physicians and facilities, medical reports, documentation in relation to pre-accident and post-accident income, and documentation in relation to ongoing disability benefits. As these documents had already been ordered producible by the applicant, the adjudicator in his motion order dated July 2, 2024, found it to be redundant to order these documents producible for a second time.
14The respondent submits that it cannot proceed without the requested productions as it would be inequitable and prejudicial for the respondent to proceed to a hearing without the ability to first receive and then review the applicant’s medical documentation. They further submit that the only remedy is to exclude this evidence that has not been properly disclosed.
15The applicant submits that all available documents requested by the respondent had been produced either throughout the claim or in accordance with the Case Conference Report and Order. She further submits that she attempted to contact the respondent’s counsel on numerous occasions to discuss the alleged missing records however the respondent’s counsel did not reply to her.
16Rule 9 of the Licence Appeal Tribunal Rules states that the parties are required to exchange all documents, witness lists and anything else they intend to rely on as evidence at the hearing. The requirement for document exchange begins as soon as the application is filed.
17I have considered the respondent’s position and I am not satisfied that the applicant has failed to produce all the records sought to be excluded by the respondent. If it is found that the respondent did not receive some of the items ordered producible by the applicant, then I will address the documents in question in accordance with LAT Rule 9 and I will speak to the weight of this evidence in my decision so that the respondent is not prejudiced by their inability to respond to this evidence.
The respondent’s second motion
18On July 25, 2024, four days before the start of the hearing, the respondent filed a Notice of Motion and the Tribunal ordered this motion to be heard at the hearing which included a list of the documents already discussed above and added a request that I exclude the reports and testimony of Dr. Chantal Vaidyanath, physiatrist, and Dr. Stephanie Wiesenthal, psychiatrist.
19The respondent submits that the applicant was treated by Dr. Vaidyanath, and that she is not qualified as an expert to make a diagnosis for Criterion 4 catastrophic impairment as she is not a neurosurgeon or a neurologist.
20The applicant argues that although Dr. Vaidyanath was a treating practitioner of the applicant, Dr. Vaidyanath had discharged the applicant from her care prior to the completion of her catastrophic impairment report. She further agues that the respondent did not act in accordance with LAT Rule 10.4 which requires the challenging of an expert witness with reasons at least 21 days prior to the commencement of the hearing.
21I accepted Dr. Vaidyanath to be an expert witness in physiatry, however I reserved my decision as to her qualifications as a catastrophic impairment assessor for Criterion 4. I had a discussion with counsel and asked that when the applicant’s counsel qualified Dr. Vaidyanath’s credentials that she include her qualifications as a Criterion 4 assessor given that Criteria 6,7 and 8 had been withdrawn by the applicant as an issue in dispute at the outset of the hearing.
22The applicant’s counsel did not qualify Dr. Vaidyanath as an expert in Criterion 4 when given the opportunity leaving me to draw an adverse inference in her qualifications to satisfy the two-prong test that is required to be deemed catastrophically impaired under criterion 4. I will discuss the two-prong test in my decision. I accepted Dr. Vaidyanath’s report and testimony as an expert in physiatry and I will give reasons to the weight I assigned to Dr. Vaidyanath testimony and report further in my decision.
23With respect to Dr. Wiesenthal, the respondent’s counsel tendered her psychiatric report as evidence during the hearing, and therefore I accepted that the respondent did receive her report in accordance with the document exchange deadlines, however I did not have to make a ruling on her testimony as Dr. Wiesenthal was not brought forward as a witness for the applicant at the hearing.
Hearing length
24This matter was scheduled for nine hearing days, however when I considered the witness list and the issues in dispute, the parties agreed that five hearing days would be the most efficient, proportional, and timely resolution on the merits of this matter in accordance with LAT Rule 3.1.
ANALYSIS
The applicant has not sustained a catastrophic impairment under Criterion 4
25The applicant seeks a CAT determination under section 3.1(1) 4 of the Schedule (Criterion 4), which sets out the following two-prong test, where both of the following need to be satisfied in order to qualify:
i. The applicant sustained an impairment which resulted in a traumatic brain injury which shows positive findings on a computerized axial tomography scan, a magnetic resonance imaging or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly; and
ii. When assessed in accordance with Wilson, J., Pettigrew, L. and Teasdale, G., Structured Interviews for the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale: Guidelines for Their Use, Journal of Neurotrauma, Volume 15, Number 8, 1998, the injury results in a rating of Upper Severe Disability (Upper SD or Upper SD*) or Lower Severe Disability (Lower SD or Lower SD*), six months or more after the accident.
26In this case the parties do not agree on the diagnostic imaging evidence to satisfy the requirements under the first prong of the test to be found catastrophically impaired in accordance with Criterion 4. I will therefore have to rule on the first prong before proceeding to the second prong if necessary.
27The applicant was crossing the street when she was struck by a vehicle. She sustained a broken shoulder, bruising to her hip, and a six-centimetre opening to her head which required sutures. She submits that the imagining from an MRI taken on June 10, 2021, clearly shows that she sustained a hemorrhage in her brain because of the subject accident. She relies on the testimony and catastrophic impairment report from Dr. Vaidyanath, physiatrist.
28The respondent argues that they were never provided a copy of the MRI of June 10, 2021, however they rely on a CT scan taken the day of the subject accident and the catastrophic impairment report and testimony of Dr. Mustafa, neurologist and the reports from Dr. West, neuropsychologist They argue that the applicant does not meet the first prong of the test for a determination of catastrophic impairment under Criterion 4 as there is no diagnostic evidence and further submit that Dr. Vaidyanath as a physiatrist does not have the medical expertise to diagnose imaging as it relates to brain trauma.
29The respondent further argues that the imaging the applicant is relying upon could have been attributable to a previous motor vehicle accident that the applicant was involved in 2010. As a result of this accident the applicant sustained whiplash and a broken ankle and in 2018, prior to the subject accident, she hit her head on the ceiling at her home and required medical attention.
30At this time, the applicant was taken to St. Michaels Hospital and a CT scan of the head was taken and the interpretation from St. Michaels hospital was that there was no acute fracture involving the calvarium or skull base. There was no sign of acute traumatic brain injury. The report went on to say that there is a tiny vertically oriented bone fragment adjacent to the tip of the anterior nasal spine with no associated soft tissue swelling (the diagnostician could not rule out an old fracture) or Possible old nasal bone fractures.
31On the day of the subject accident, October 3, 2019, the applicant was taken by ambulance to St. Micheals Hospital and at that time another CT scan was performed. The findings of this CT scan were that there was no acute intracranial abnormality, and the findings were normal.
32On June 10, 2021, while the applicant was pregnant with her second child, an MRI was performed at St. Michaels Hospital as the applicant indicated ongoing cognitive issues and vertigo since the subject accident. The purpose of the MRI was to rule out microhemorrhages or Diffuse axonal injury (DAI). The applicant relies on this MRI in seeking a catastrophic designation to meet the first prong of Criterion 4.
33The June 2021 MRI shows a tiny area of blooming in the left cerebellum and the report goes on to say that this could represent an old microhemorrhage and that the significance in relation to trauma is unclear. Otherwise, the report noted, there was no evidence of diffuse axonal injury (DAI). Dr. Vaidyanath testified that the microhemorrhage found in the MRI is to then be taken for interpretation and she concludes that the probable cause of the microhemorrhage found in the MRI is from the applicant hitting her head on the day of the subject accident.
34Both respondent’s assessors, Dr. West and Dr. Mustafa, conclude in their reports that the applicant does not meet the first prong of Criterion 4 in that the diagnostic imaging does not produce evidence of brain trauma. Dr. Mustafa in his testimony advised me that an MRI had never been produced to him for review, however he testified that the CT scan is the most telling diagnostic imaging as it was performed the day of the accident. He opined that the diagnostic imagining from the CT scan was that there was no acute intercranial abnormality which means that there is no fresh blood present which would have been visible from the CT scan.
35Although the respondent asserts that they have not received the MRI of June 10, 2021, it is apparent to me that it was disclosed by the applicant as part of the St. Michaels Hospital files as the respondent has on numerous occasions through the hearing pointed to the hospital records of the 2018 incident and the applicant’s new pregnancy months after the accident sometime in 2021 all of which are contained in the hospital files. Furthermore the respondent in cross examination of Dr.Vaidyanath correctly pointed to the MRI of June 10, 2021 as not being signed by any medical professional or neurologist, but rather it simply stated that it was from St. Michaels hospital.
36In contrast to Dr. Vaidyanath’s opinion of the MRI taken in June 2021 where she concluded that a microhemorrhage was the result of the subject accident, Dr. Mustafa could not conclude that the microhemorrhage was as a direct result of the accident. He advised that a microhemorrhage is like a scar on your body. He testified that diagnosing a scar on one’s body would be the same in the sense that you would not be able to clinically diagnose the exact period as to when the scar occurred. He submits that an MRI will refer to all trauma but cannot date the bleed. Dr. Mustafa gave examples that there are many possible explanations for the MRI results such as a small stroke, disruption of blood vessels, vascular malformation, inflammation, arthritis, lupus and even a viral infection. Dr. Mustafa also stated that whiplash from the applicant’s previous motor vehicle accident in 2010 which she complained about headaches for approximately 9 months after that accident could have been the cause. In addition, Dr.Mustafa was not advised by the applicant at the time of his assessment about her 2018 incident in which she hit her head on the ceiling and received medical assistance.
37Although it may be possible that the microhemorrhage found in the MRI could be because of the subject accident, it is not possible for me accept Dr. Vaidyanath’s conclusion that it was because of the accident on a balance of probabilities. I found Dr. Mustafa’s testimony to be more compelling as a neurologist trained to diagnose brain abnormalities based on medical imaging, than the findings of Dr. Vaidyanathan who is a physiatrist that is trained in rehabilitation. Furthermore, the MRI in question and the report that accompanied the MRI states that a tiny area of blooming is evident in the left cerebellum, which could be an old microhemorrhage, however its relation to trauma is unclear and not signed by any medical profession. In the absence of compelling medical evidence that the blooming found in the MRI can be attributed to the accident, I accept Dr. Mustafa’s report and testimony based on the findings of the CT scan performed at the time of the accident as the most reliable medical evidence.
38The applicant has failed to demonstrate that she has diagnostic evidence of brain trauma as a direct result of the accident. Having found that the applicant has not established the first prong of the test for catastrophic impairment under Criterion 4, I will not address the second part of the test.
39I find that the applicant has not sustained a catastrophic impairment under Criterion 4.
The applicant is not entitled to a post-104 Income replacement benefit (IRB)
37At the outset of the hearing, the applicant was seeking an IRB in the amount of $400.00 per week from December 15, 2021, and ongoing. It was clarified and agreed upon that the applicant was seeking a post-104 IRB only. The applicant testified that she was receiving a disability pension of approximately $4,000.00 per month from her employer. Upon my repeated attempts to clarify the applicant’s position and income from her long-term disability pension provided from her employer, I was advised by her counsel on the final day of the hearing that the applicant is currently receiving approximately $5,300.00 monthly from this pension.
38During the hearing, the applicant revised her position on the IRB several times and relied on a report from Brad Borkwood, CPA, CA, CBV dated November 30, 2021, with the calculation of the quantum of the IRB to be $41.68 per month from December 15, 2021, and ongoing.
39The applicant’s counsel at a later point in the hearing advised me that she had recalculated the post 104 IRB entitlement to be $18.40 per week from September 12, 2022, to December 31, 2022, or $294.40 in total. She further requested that the IRB remain an issue in dispute from January 1, 2023, and ongoing with the quantum of the IRB being zero as the applicant’s long term disability pension exceeds the $400.00 per month quantum allowable by the Schedule.
40The respondent’s position is that the applicant is not entitled to a post 104-IRB and that the long-term disability file had not been produced to them by the applicant despite their repeated requests for the disclosure of these documents.
41My continual efforts for clarification on the quantum of the IRB sought and the changing quantum and dates sought by the applicant lead me to conclude that the applicant has failed in her onus to provide entitlement to a post-104 IRB. The applicant has failed to provide me any credible evidence in support of her claim as it relates to quantum. The lack of documentation produced from the applicant in relation to the long-term disability file, the lack of up-to-date accounting and the absence of an OCF-13 (declaration of post-accident income) lead me to conclude that the applicant is not entitled to a post-104 IRB because the income from her long-term disability is equal to or more than $400.00 per month allowable by the Schedule under s. 7.
42I find on a balance of probabilities that the quantum of the post-104 IRB is zero. I therefore find that s. 6 of the Schedule does not need to be addressed having found that the applicant does not meet the statutory requirements under s. 7.
The applicant is not entitled to a central vacuum system.
43To 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.
44The applicant was seeking a central vacuum system because her accident-related injuries also involved a broken shoulder and a bruised hip. At the time of the accident the applicant was living in Toronto and did not have a central vacuum system. In her testimony the applicant advised that she had moved to a different home outside of Toronto that has a central vacuum system. She further explained that she was gifted a lightweight vacuum that was making vacuuming the home much easier.
45She testified that a lightweight hose would be beneficial to her as her hose is a bit heavy as it is older. Unfortunately, a light hose is not what is before the Tribunal. What is before the Tribunal is an entire central vacuum system in the amount of $4,898.51.
46Having found that the applicant has a lightweight option for vacuuming the home, which is sufficient, a central vacuum system is not reasonable or necessary.
The applicant is entitled to the disputed treatment plan for physiotherapy
47I find that the applicant is entitled to $986.00 for physiotherapy.
48In her evidence the applicant referenced her need for physiotherapy and massage. She testified that she continues to receive these treatments as they help reduce the severity of her headaches and help in the reduction of her physical pain in her neck back and shoulder.
49The respondent submits that the treatment plan for physiotherapy is not reasonable or necessary given the length of time that has past since the accident and that physiotherapy would likely not improve the applicant’s impairments.
50I accepted the applicant’s need for continued physiotherapy as a multidisciplinary approach as recommended by Dr. Vaidyanath in her testimony and that of the applicant, that physiotherapy does provide relief and can help improve the applicants’ chronic pain.
51I find that the disputed treatment plan for physiotherapy is reasonable and necessary, therefore the applicant is entitled to the disputed treatment plan for physiotherapy.
The applicant is entitled to the disputed treatment plans for occupational therapy in the amounts of $2,895.00 and $6,683.88.
52I find that the applicant is entitled to $2,895.00 and $6,683.88 for occupational therapy as the goals of the treatment plans are reasonable and necessary.
53Although many of the occupational therapy assessments and reports are in part based on the applicant’s return to work strategies, it is also clear in the reports that the applicant struggles with concentration, pace and adapting to her activities of daily living. I accepted Dr. Vaidyanath’s testimony that occupational therapy would be beneficial for the applicant’s impairments by providing pacing strategies or technologies, mindfulness, yoga, and relaxation strategies.
54I find that the applicant is entitled to the two disputed treatment plans for occupational therapy in the amounts of $2,895.00 and $6,683.88.
Is the applicant entitled to $2,100.25 for a catastrophic impairment assessment.
55The applicant did not provide any submissions during the hearing regarding the catastrophic impairment assessment reports therefore the applicant has failed in her onus to provide details of their entitlement. The applicant is not entitled to $2,100.25 for the cost of the catastrophic impairment assessment.
The respondent seeks cost from the applicant
56The respondent is seeking costs from the applicant because the applicant withdrew catastrophic impairment under Criteria 6,7 and 8 at the outset of the hearing. The respondent’s counsel submits that they prepared for the hearing on all criteria identified in the case conference summary report and order. They further submit that the applicant should not be able to bring this application forward at another time on Criteria 6,7 and 8 as the respondent has incurred unnecessary expenses because of the reports and assessments completed on all criteria in question at an enormous expense due to the litigation brought forward by the applicant.
57The applicant submits that the respondent ought to have known that this application was going to proceed only on Criterion 4. The applicant further submits that their catastrophic impairment report based on Criterion 6 failed to establish that the applicant was catastrophically impaired and the respondent ought to have been aware of this.
58LAT Rule 19.5 states that in considering whether to award costs, I must consider all relevant factors including the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to other parties and the potential impact an order for costs would have on individuals accessing the Tribunal system.
59Costs at the Tribunal are not intended to reimburse or indemnify parties for expenses incurred in litigation. The intent of Rule 19 would not be upheld if I were to award costs to the respondent and as such, the respondent’s request for costs is denied and the applicant is not restricted in her ability to bring forward a different application for catastrophic impairment under a different criterion in future. Furthermore, the applicant did not interfere in the process and a fair and efficient hearing was held.
60I find that the applicant is not liable to pay costs to the respondent.
The applicant seeks costs from the respondent.
61The applicant seeks cost from the respondent because the respondent attempted to distract the applicant’s counsel from preparing for the hearing by filing baseless motions for the disclosure of documents that they deemed to be already produced by the applicant. She further submits that she attempted to contact the respondent on numerous occasions to discuss the perceived withholding of documents ordered to be produced, as the only documents that she did not disclose were documents she was not able to obtain from the source that was asked to produce these documents.
62The respondent argues that not all documents had been disclosed by the applicant which is why they had to bring forward motions for the disclosure of these documents.
63As already outlined above LAT Rule 9.5 is where I must find my guidance in awarding costs. I find that although the applicant could have been more forthcoming with information specifically in relation to her long-term disability pension file from her employer, she did not interfere with the Tribunal’s ability to carry out a fair, efficient, and effective process and as such the applicant is not entitled to costs from the respondent.
64I find that the applicant is not entitled to costs from the respondent.
Interest
65Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As some benefits are payable interest is to be calculated on the following: physiotherapy $986.00 and occupational therapy in the amount of $2,895.50 and $6,683.88.
ORDER
66It is ordered that:
i. The applicant has not sustained a catastrophic impairment as defined by the Schedule under criterion 4.
ii. The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from December 15, 2021, to date and ongoing.
iii. The applicant is not entitled to an income replacement benefit in the amount of $18.40 per week from September 12, 2022, to December 31, 2022.
iv. The applicant is not entitled to $4,898.51 for a central vacuum system.
v. The applicant is not entitled to $2,100.25 for the cost of a catastrophic determination assessment.
vi. The applicant is entitled to $2,895.50 for occupational therapy services.
vii. The applicant is entitled to $6,683.88 for occupational therapy services.
viii. The applicant is entitled to $986.00 for physiotherapy services.
ix. Interest is payable on all overdue payments of benefits in accordance with s. 51 of the Schedule.
Released: November 12, 2024
__________________________
John Mazzilli
Adjudicator