Citation: Sukhu v. Aviva General Insurance, 2024 ONLAT 22-009618/AABS

Licence Appeal Tribunal File Number: 22-009618/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:

Tyler Sukhu

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Sherilyn Pickering, Counsel

For the Respondent:

Aimee Draper, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Tyler Sukhu, the applicant, was involved in an automobile accident on June 27, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Aviva General Insurance, 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. Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $3,000.00 per month from March 15, 2021 to June 27, 2023?

ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from September 11, 2020 to present?

iii. Is the applicant entitled to a SPECT scan in the amount of $3,200.00, proposed by East York Physiotherapy in a Treatment Plan (“OCF-18”), dated June 27, 2020?

iv. Is the applicant entitled to the following OCF-18s recommended by Rehab First in the amount of:

a. $2,195.00 for review of the records for the Glasgow Outcome Scale-Extended (“GOS-E”) Assessment Report, dated June 29, 2020;

b. $2,115.35 for the GOS-E Assessment Report, dated June 29, 2020;

c. $3,153.61 for Occupational Therapy (“OT”) Treatment dated October 7, 2022;

d. $3,987.55 for physiotherapy treatment dated February 7, 2023; and

e. $2,163.85 for speech-language treatment dated October 7, 2022?

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

3The Case Conference Report and Order (“CCRO”), released April 26, 2023, indicated that for issue (i), the monthly amount of ACBs being claimed was $3,466.00 and from March 15, 2021 to date and ongoing. However, the applicant in his submissions acknowledges that the maximum monthly quantum available for ACBs under the Schedule is $3,000.00 per month, and this is the amount he is claiming. Further, the applicant submits that he accepts that he is entitled to ACBs up until the five-year mark under s. 20(1). Thus, the applicant is claiming $3,000.00 per month in ACBs, until June 27, 2023, which has been reflected at paragraph 2(i) above.

RESULT

4i find that:

i. the applicant is not entitled to ACBs, nor interest.

ii. The applicant is not entitled to post-104 IRB, nor interest.

iii. The applicant is entitled to an OCF-18 in the amount of $3,200.00, for a SPECT scan, plus interest in accordance with s. 51 of the Schedule.

iv. The applicant is entitled to an OCF-18 in the amount of $3,153.61 for OT treatment, dated October 7, 2022, plus interest in accordance with s. 51 of the Schedule.

v. The applicant is not entitled to the following OCF-18s, plus interest:

a. $2,195.00 for review of the records for the GOS-E Assessment Report, dated June 29, 2020;

b. $2,115.35 for the GOS-E Assessment Report, dated June 29, 2020;

c. $3,987.55 for physiotherapy treatment dated February 7, 2023; and

d. $2,163.85 for speech-language treatment dated October 7, 2022.

vi. The respondent is not liable to pay an award.

ANALYSIS

The applicant is not entitled to ACBs

5I find that the applicant has not established entitlement to ACBs. He has not met his burden and demonstrated attendant care services to be reasonable and necessary, nor has he provided evidence that such services were incurred. I also decline to deem incurred the expenses under s. 3(8).

6Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident, for ACB services provided by an aide or attendant.

7Section 3(7)(e) of the Schedule defines when an expense is incurred: (i) the insured person has received the goods or services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (iii) the person who provided the goods or services, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured person. The applicant bears the burden of proving entitlement to ACBs on a balance of probabilities.

8Pursuant to section 3(8) of the Schedule, the Tribunal may deem an expense to be incurred if it finds that the insurer unreasonably withheld or delayed payment of the benefit, and as a result the expense was not incurred.

9The applicant claims ACBs from March 15, 2021 to June 27, 2023, but has not provided submissions or evidence as to whether these benefits were incurred under any of the prongs of s. 3(7)(e). Rather, the applicant’s submissions on the issue relate solely as to whether the ACBs are reasonable and necessary and that the expenses should be deemed incurred under s. 3(8).

10The respondent argues that the applicant has not established entitlement to ACBs. First, it argues that the applicant has not adduced any evidence to support that the services have been incurred. Second, the applicant has advised numerous assessors that he is independent with his personal care tasks and does not require the assistance of an aide or an attendant. To this end, it relies upon the s. 44 report of Mr. Andrew Phillips, occupational therapist (“OT”) dated May 10, 2021.

11The applicant largely relies on a Assessment of Attendant Care Needs Report, completed by Ms. Maria Elma, OT, dated March 15, 2021, and the Attendant Care Needs (“Form 1”), dated March 15, 2021. This report made a number of specific recommendations regarding attendant care assistance, including:

i. 56 minutes per week for dressing/undressing both his upper and lower body;

ii. 140 minutes per week for shaving, hair washing/drying, hair styling, fingernail care, and toenail care;

iii. 420 minutes per week for meal preparation;

iv. 2,695 minutes per week for personal hygiene, including supervision;

v. 30 minutes per week for coordination; and

vi. 49 minutes for bathing.

12The Form 1 recommended $3,466.00 in ACBs per month.

13I find that the applicant has not demonstrated the proposed ACBs are reasonable and necessary because he has consistently reported he is independent with his personal care tasks, there are numerous inconsistencies in Ms. Elma’s report and I prefer the evidence of Mr. Phillips.

14On the balance, the applicant has consistently reported that he is independent with his personal care tasks to numerous assessors and OTs from 2019 to February 16, 2023. These include:

i. Dr. Michael Malatesta, chiropractor;

ii. Dr. Allan Walton, psychotherapist;

iii. Dr. Phillip Miller, psychologist;

iv. Dr. Mark Friedlander, chronic pain specialist;

v. Dr. Cheryl Bradbury, psychologist; and

vi. OTs, Ms. Laura Burnett, Ms. Azrah Lavji, and Mr. Phillips.

15I acknowledge the applicant’s position that he reported to Ms. Anghela Sivananthan, OT, and Dr. Vincenzo Santo Basile, neurologist on December 5, 2019 and April 3, 2023, that he required assistance with feeding, hygiene, shopping, cooking, housework, and laundry. However, the applicant has consistently reported to eight assessors as outlined above, that he was independent with his personal care tasks. I place more weight on his self-reporting over a period of nearly four years, than two occasions. Thus, I accept his consistent self-reporting that he is independent with his personal care tasks which is inconsistent with his request for attendant care services.

16Next, I place significant weight on a previous Occupational Therapy Assessment conducted by Ms. Burnett and Ms. Lavji on May 15, 2019, because both assessors concluded that the applicant demonstrated the functional tolerances, mobility, range of motion, and strength to participate in all self-care activities safely and independently. The assessors also personally observed that the applicant was independent with all self-care activities. I place significant weight on this report because it shows that the applicant not only had the ability to complete his personal care tasks, but he was able to do so, which is consistent with his self-reporting as noted above.

17Meanwhile, the report prepared by Ms. Elma, nearly two years later does not address why the applicant now requires attendant care assistance, or why he no longer has the functional ability to complete these tasks. Significantly, Ms. Elma treated the applicant previously on February 6, 2020, and in her progress report did not note any restrictions or inability of the applicant to complete his personal care tasks.

18Six months before recommending ACBs, Ms. Elma noted in the GOS-E Report, that the applicant believed his difficulties to be greater than what was reported by his sister with respect to his dressing ability. As such, Ms. Elma, opined that this could be due to a heightened perception of his limitations/difficulties, or a strong ability to mask his symptoms when completing these tasks. However, in her report of March 15, 2021, she did not address this issue, nor did she speak to the applicant’s sister to determine if there were any changes, such as the sister observing the applicant having increased difficulty to complete his dressing tasks.

19Likewise, Ms. Elma’s observation in the GOS-E assessment that the applicant required daily assistance from members of his family for his daily activities at home, is inconsistent with the applicant’s self-reporting to other assessors during the same time period. Indeed, the applicant reported the following to Drs. Walton, Miller, and Ornstein:

i. Nearly two months before Ms. Elma’s assessment, the applicant told Dr. Ornstein on July 9, 2020, that he took care of his personal hygiene, and there was no indication that he required daily assistance.

ii. Two months after Ms. Elma’s report (November 30, 2020), the applicant reported to Drs. Walton and Miller that he was able to manage his self-care activities independently but slowly. There is no reference to the applicant requiring daily assistance from his family.

20I also prefer the Occupational Therapy Assessment completed by Mr. Phillips, dated May 10, 2021. First, this report on the whole is in accord with the applicant’s self-reporting. Second, the applicant largely reported independence with the tasks that were recommended by Ms. Elma, which were: dressing/undressing, grooming, and feeding.

21Third, Mr. Phillip objectively noted that the applicant was functionally able to complete his dressing, undressing, grooming, feeding, mobility, hygiene, basic supervisory care, exercise, skin care, medication, and bathing, which is also consistent with the applicant’s own s. 25 report by Ms. Burnett and Ms. Lavji.

22As a result of the above, Mr. Phillips concluded that the applicant did not require any attendant care assistance.

23The applicant has not provided any submissions or evidence as to whether these benefits were incurred under any of the prongs of s. 3(7)(e). He provides a general statement that he was forced to rely upon his parents and sister to provide assistance. However, he has led no evidence that ACBs were incurred, whether by way of invoices, promissory notes, affidavits speaking to services provided, level of care or the rate of care. Moreover, if the person who provided ACBs is a family member, as opposed to a professional service provider, any ACBs payable are limited to the economic loss incurred by the family member. An “economic loss” is a factual determination. No submissions, evidence, or details of any such loss were provided by the applicant.

24Lastly, I do not concur with the applicant’s argument that ACBs should be deemed incurred in accordance with s. 3(8) of the Schedule as he claims that the benefit was unreasonably withheld or delayed. He argues that the respondent wrongfully denied ACBs, despite there being evidence of him being forced to rely upon his parents and his sister for assistance.

25I disagree, as noted above, on the balance, the applicant has consistently reported that he is independent with his personal care tasks and did not require assistance from family members, therefore it is not unreasonable to rely on this information and its IEs in denying the benefit.

26I further acknowledge the applicant’s position that he relies upon the deemed incurred provision as he was unable to receive attendant care due to the denial by the respondent. However, this is not the test under s. 3(8), the test is that the respondent has to unreasonably withhold or delay the benefit, which has not been established here.

27In conclusion, I find that the applicant has not established attendant care services to be reasonable and necessary. Further, he has not demonstrated that attendant care services were incurred and I decline to deem incurred the expenses under s. 3(8). Accordingly, he is not entitled to ACBs, nor interest.

Post-104 IRB

28I find the applicant is not entitled to post-104-IRB for the following reasons.

29To receive payment for post-104 IRBs under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

30The issue of whether the applicant is eligible to IRB under s. 5(1) is irrelevant because that pertains to pre-104 IRB, which is not in dispute and the respondent in its submissions has acknowledged that it paid IRB from July 4, 2018 to September 11, 2020. Therefore, the respondent’s argument that the applicant’s last day of employment was on July 4, 2018 is immaterial.

31The applicant argues that as a result of his physical, psychological, and cognitive impairments, he is completely unable to complete menial labour positions. The applicant primarily relies on the following evidence:

i. S. 25 report of Ms. Burnett/Lavji, dated May 15, 2019;

ii. S. 25 report of Dr. Basile, dated December 5, 2019;

iii. S. 25 report of Dr. Friedlander, dated December 11, 2019;

iv. S. 25 report of Ms. Elma, dated September 2, 2020;

v. S. 25 report of Drs. Miller/Walton, dated November 30, 2020;

vi. S. 25 report of Dr. Abouali, dated February 18, 2021; and

vii. S. 25 report of Dr. Sharma dated May 12, 2021.

32The respondent argues that the applicant has failed to prove that he meets the post-104 IRB test. It further argues that, at most, the applicant sustained soft tissue injuries that healed shortly after the accident, and certainly within the 104 week period. It relies upon the s. 44 reports of Drs. Walters, Ornstein, Kaufmann, and Ms. Sibani/Peacock.

The applicant is not statute-barred

33The respondent has raised the issue that the applicant is statute barred, as he did not dispute his IRB denial within the two year limitation period.

34I find the applicant is not statute barred. While the respondent argues that a denial letter for IRB was sent on August 25, 2020, and since the application with the Tribunal was not filed until August 31, 2022, the applicant missed the two year limitation period, I find this is not the case. As argued by the applicant, this denial took place during the COVID-19 pandemic, and as per Regulations 73/20 and 457/20 under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17., the limitation period was suspended from March 16 to September 14, 2020.

35Therefore, the limitation period was suspended from March 16 to September 14, 2020, due to the COVID-19 pandemic, and any denials that took place during this time period, had a two year limitation period commencing from September 14, 2020. Accordingly, the applicant had until September 14, 2022, to file his application with the Tribunal. He did so on August 31, 2022, thus he is not statute barred.

The applicant has not established entitlement to post-104 IRB

36I find that the applicant has not demonstrated on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

37The highest educational level the applicant has reached is a high school education. The applicant provided a brief background of his education, and experience in his submissions. The applicant’s pre-accident education history includes previously attending Mohawk College to study urban planning, and then switching to an industrial design program at Seneca College. This course at Seneca was interrupted due to a prolonged strike by the college staff. The applicant has also reported that he made unsuccessful attempts at completing a real estate course through Humber College, and an interaction design program at George Brown College, following the accident.

38His pre-accident work experience includes working as a general labourer at a manufacturer of garage doors while in Grade 11. At the time of the accident, the applicant was employed as a parking lot attendant. It is undisputed that his job duties included: maintaining the lot, moving cars, washing cars, cleaning the show room and sales floor, going to the bank, driving to Service Ontario, walking the lot, greeting customers, and answering customer questions. It is also agreed that the applicant was enrolled at Humber College in the Business Administration course at the time of the accident, and subsequently dropped out following the accident. This is also supported by the applicant’s self-reporting to all the s. 25 and s. 44 assessors.

39Both parties also agree that the applicant attempted to return to work in 2021, however there is a disagreement of whether the applicant is still working.

40The respondent argues that the applicant is working since 2021, in a property management business, therefore he is not entitled to post-104 IRB. The applicant argues that he has made three unsuccessful attempts to either run his business or work with others following the accident. These attempts are as follows:

i. In 2021, the applicant argues that he attempted to start a property maintenance business with his family but it was unprofitable.

ii. In 2022, he worked with his family in their property maintenance business, and he was fired because he was unable to perform physically and lost clients for the business. To this end, he relies upon several text messages and a calendar invitation.

iii. In April of 2023, he attempted to work as a landscaper and was forced to resign and relies upon an undated resignation letter to support this.

41Ultimately, the applicant argues that he is not qualified to do anything beyond menial labour, based on his previous education, and experience. While I acknowledge that the applicant has no college education, despite his several attempts as noted above, the applicant has not referred me to evidence to show that his previous experience makes him best suited for menial labour. Instead, the applicant has a history of working in manual labour occupations, however there is no indication that he was badly paid, had a low status or bored in these roles.

42I find that given the applicant’s education, and experience, he is best suited for employment involving manual labour.

The applicant has not demonstrated that he suffers a complete inability to engage in manual labour

43I find that the applicant has not demonstrated that he suffers a complete inability to engage in any employment or self-employment for which he is suited, in accordance with the post-104 criteria in the Schedule. The applicant is not entitled to IRB, nor interest because on the balance the evidence is not contemporaneous to the post-104 period, does not support that the applicant has a complete inability to engage in manual labour, the applicant’s self-reporting was vague, and the physical examinations were largely unremarkable.

44Though it is not part of the post-104 IRB test, I find it remarkable that the applicant’s post-104 IRB is not supported by his family physician. The applicant has only tendered four CNRs from Dr. Sequeira’s office, dated June 28, 2018, July 30, 2018, July 9, 2018, and September 14, 2018. While on June 28, 2018, Dr. Sequeira recommended that the applicant remain off work for three weeks, this is not contemporaneous to the post-104 IRB period, and therefore does not establish that the applicant suffers a complete inability to return to any employment for which he is reasonably suited.

45Next, I place limited weight on the s. 25 report of Dr. Basile. The applicant relies on his self-reporting and the medical opinion of Dr. Basile to establish that his C8 cervical radiculopathy, have resulted in a complete inability to complete menial labour. However, this report is not contemporaneous to the post-104 IRB period, as it was completed on December 5, 2019.

46In any event, the applicant also vaguely reported to Dr. Basile that he was unable to continue his job following the accident, however he did not advise why so or provide particulars of what impairments were preventing him from working. Dr. Basile also provided a limited rationale on how the applicant’s left sided C8 cervical radiculopathy and post-concussive syndrome prevented him from working in any occupation for which he is reasonably suited. Instead, Dr. Basile vaguely opined that the applicant’s C8 cervical radiculopathy and post-concussive syndrome prevented him from working as a maintenance lot driver or in any occupation for which he was reasonably suited. I also place less weight on this opinion as it is not supported by the objective physical examination which was normal and unremarkable.

47Similarly, I place negligible weight on the s. 25 report of Dr. Friedlander. Once again, I acknowledge that the applicant relies on this report to establish that he has a substantial disability with respect to any vocational activity, consistent with his education, training, and experience. However, again, this report was completed on December 11, 2019, which is not contemporaneous to the post-104 IRB period. Second, the applicant vaguely reported that he was unable to return to work because of physical pain but did not provide any particulars of where the pain was located or what tasks he was unable to complete.

48Dr. Friedlander concluded that the applicant has a substantial disability with respect to any vocational activity consistent with his education, training and experience. However, the test for post-104 IRB, is not a substantial disability, rather the applicant has to demonstrate a complete inability, which I find this report does not establish. Particularly, where the objective physical examination was largely normal and Dr. Friedlander provided no particulars on how the applicant was completely unable to perform any employment for which he is reasonably suited.

49In a similar vein, I am not persuaded by the s. 25 report of Dr. Abouali. I am alive to the applicant’s position that this report helps to establish that he is entitled to post-104 IRB, however I disagree. First, the applicant vaguely reported to Dr. Abouali that he was unable to resume his occupation, however he did not provide any particulars on why. Second, the physical examination was largely unremarkable. Third, while Dr. Abouali opined that the accident was impacting the applicant’s ability to return back to work, he did not advise which employment he was referring to i.e., the applicant’s pre-accident work or any occupation. This is significant, as the test for post-104 IRB is not whether the applicant can return to his pre-accident work, but rather he has to demonstrate that he is unable to return to any occupation for which he is reasonably suited.

50As well, Dr. Abouali concluded that the applicant’s ability to work was maybe impacted by his neurological conditions, chronic neck pain, and back pain. It is unclear to me how Dr. Abouali arrived at this conclusion when the applicant did not provide particulars of why he was unable to return to work, and the physical examination was largely unremarkable.

51I also find the s. 25 report of Drs. Miller and Walton to have limited evidentiary value. First, the applicant provided no particulars on why he was unable to work for any occupation for which he is reasonably suited. While I acknowledge that he reported difficulties with his studies as a result of physical, psychological, and cognitive impairments, the test under s. 6 is that he has to establish an complete inability to complete any occupation for which he is reasonably suited. Again, while Drs. Miller and Walton concluded that the applicant was unable to perform any vocational activity consistent with his education, training, and experience, they provided limited reasoning on why so. Instead, they noted that the applicant’s injuries made it more difficult for him to compete in the labour market and he has lost competitive advantage.

52However, the test for post-104 IRB is not whether the applicant is able to compete in the labour market, but rather he has to demonstrate that he suffers a complete inability to complete any occupation for which he is reasonably suited. Moreover, neither assessor advised what injuries were preventing the applicant from returning to any occupation for which he is reasonably suited. Without this information, I disagree that the applicant has established that he suffers a complete inability to complete any occupation for which he is reasonably suited.

53I am also not persuaded by the s. 25 report of Dr. Sharma. I acknowledge that the applicant heavily relies upon this report because Dr. Sharma concluded that he has a complete inability due to his low stress tolerance, emotional dysregulation, poor ability to adopt to work/life stress, cognitive difficulties, inability to multi-task and lack of stamina. I place significant weight on the fact that the applicant advised Dr. Sharma that he was having a difficult time finding work due to his physical injuries, and not his psychological nor cognitive issues. Thus, it is unclear to me, how Dr. Sharma arrived at the conclusion that the applicant’s psychological impairments were resulting in a complete inability to complete any occupation for which he is reasonably suited, when the applicant himself stated otherwise.

54As well, in my view, the s. 25 reports conducted by the OTs, Ms. Elma, Ms. Burnett, and Ms. Lavji are unpersuasive. While I am alive to the applicant’s position that these assessors determined that he is unable to work in any occupation, I place limited weight on these reports for the following reasons.

55First, the report prepared by Ms. Burnett and Ms. Lavji was conducted on May 15, 2019, and is not contemporaneous to the post-104 IRB period, and the applicant advised that he believed he was capable of returning to part time employment during the pre-104 IRB period.

56Second, Ms. Burnett/Lavji did not conclude that the applicant is unable to work in any occupation, instead they concluded that he suffered a substantial or complete inability to perform the essential tasks of his employment.

57Third, while Ms. Elma concluded that the applicant was unable to return to his pre-accident work, due to his TBI-related impairments (e.g., cognitive difficulties, low activity tolerance, headaches, and dizziness), that is not the test under s. 6. The test for post-104 IRB is not whether the applicant is able to return to his pre-accident employment, but rather if he is able to return to any occupation for which he is reasonably suited, which I find lacking here.

58The parties are in disagreement over whether the applicant is working as of 2021 or not. As noted above, the applicant argued that he has made three unsuccessful attempts from 2021 to 2023 but was unable to do so because of the accident.

59I am not persuaded by the applicant’s position because he largely relied upon several text messages from his family members, a calendar invitation, and an undated resignation letter, which I place little weight on for the following reasons.

60With respect, the text messages do not support the applicant’s position that he was unable to work in his family business due to his impairments. Rather, the text messages show that his family members attempted to contact him about his work performance and these messages went unanswered.

61In the same way, the calendar invitation does not prove that the applicant was fired by his family, because of his poor performance due to his impairments from this accident. Instead, it shows that a meeting was scheduled, but I have not been provided with any details about what transpired during the meeting.

62Likewise, in the resignation letter, the applicant indicated that he was quitting due to personal reasons, and there is no reference to his accident-related impairments. I have also not been provided with an employment file, which in my opinion, would have been helpful, especially here where the applicant is arguing that he was unable to do his employment because of his accident-related impairments.

63Accordingly for all these reasons, the applicant is not entitled to post-104 IRB, nor interest.

64To receive payment for a treatment and assessment plan pursuant to sections 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.

The applicant is entitled to the SPECT scan in the amount of $3,200.00

65I find that the applicant has established on a balance of probabilities that the OCF-18 proposing a SPECT scan is reasonable and necessary.

66The applicant argues that Dr. Basile has diagnosed him with a Traumatic Brain Injury (“TBI”) and recommended the proposed SPECT scan to look for interior frontal lobe and anterior frontal lobe perfusion deficits. The applicant argues that the goals of the SPECT scan have been met, as it has already been conducted. He further argues that there is no other alternative option to achieve these goals, as a neuropsychological assessment can explain cognitive difficulties, but not the function of the brain and loss of consciousness. Finally, the applicant cites the authorities of Wabie v. Wilson, 2022 ONSC 4296 (“Wabie”), and Kolapully v. Myles et al., (“Kolapully”) 2022 ONSC 6674, where the Court declined to exclude the SPECT scan as evidence for the trial, as it was being used as a secondary tool, rather than a primary tool for diagnosis.

67The respondent argues that the applicant has not demonstrated that the three part test as outlined above as been met. It relies upon the s. 44 reports of Drs. Walters, Kucher, and Orstein, who determined that the applicant had no evidence of accident-related cognitive or neurological deficits. Finally, it argues that neither the applicant nor the health practitioners signed the submitted OCF-18.

68I disagree with the respondent that the OCF-18 is unsigned because the applicant produced a copy of the completed OCF-18 as evidence. Upon review of same, I note that the applicant and the health practitioner (Dr. Melanio Catre, physician), signed it. As such, I find that there is no merit to the respondent’s claim.

69The respondent also argued that the applicant was statute-barred because he failed to dispute the denial within two years. I disagree. This OCF-18 was denied on July 15, 2020. As noted above, Regulations 73/20 and 457/20 suspended the limitation period in Ontario from March 16 to September 14, 2020. Therefore, the applicant had until September 14, 2022 to file his application, he did so on August 31, 2022. I find that he is not statute barred.

70I find that the proposed OCF-18 is reasonable and necessary for the following reasons.

71First, I agree with the applicant, that the SPECT scan is reasonable and necessary, because it is being used as a secondary tool to review the functionality of the brain, and not as a stand-alone diagnostic tool. Indeed, on December 5, 2019 (several months before the OCF-18 for a SPECT scan was submitted) Dr. Basile, diagnosed the applicant with a post-concussive syndrome, which was consistent with a TBI. Dr. Basile recommended a SPECT brain scan to look for inferior frontal lobe and anterior temporal lobe focal perfusion deficits that are typically seen in posttraumatic brain injuries.

72Second, the authorities cited by the applicant are factually similar to the matter before me. In contrast, the authority cited by the respondent is distinguishable and therefore I follow the Court’s reasoning in Wabie and Kolapully.

73The respondent relies upon the authority of Meade v. Hussein, 2021 ONSC 7850 (“Meade”), where SPECT evidence has been found inadmissible by the Ontario Superior Court because it failed to satisfy the reliable foundation test for novel scientific evidence.

74However, in Meade, Justice Bale at para 17, determined that even though the SPECT was not a novel science, what is novel was the use of SPECT to prove that a patient has suffered TBI, particularly where it is necessary to differentiate TBI from anxiety disorders and depression. Justice Bale concluded that the SPECT evidence was not reliable in that matter because he was not presented with any evidence that SPECT can be used to distinguish TBI from depression or anxiety.

75Here, in the matter before me, the applicant is not using the SPECT scan as either a primary diagnostic tool or as a means to distinguish depression and anxiety that is caused by the accident. Rather, the applicant was diagnosed with a TBI by Dr. Basile, and the SPECT scan is being recommended to further investigate his TBI, not to diagnose him with one. Dr. Kucher has also concluded that at most, the applicant has a concussion/mTBI. Therefore, I have two doctors before me that have diagnosed the applicant with a TBI without the SPECT.

76The factual matrix before me is similar to the authorities of Wabie and Kolapully, where the Courts distinguished these matters from Meade, as the Plaintiffs were not using the SPECT scan as either a primary diagnostic tool or as a means to distinguish depression and anxiety.

77Finally, I place little weight on the respondent’s evidence for the following reasons. First, Dr. Walters did not provide an opinion with respect to the proposed SPECT scan. Nor did he provide an opinion with respect to whether the applicant has either a cognitive or neurological deficit. Instead, Dr. Walters, concluded that the applicant has no objective reproducible musculoskeletal impairment.

78Second, Dr. Kucher diagnosed the applicant with a concussion/mTBI yet concluded there were no objective neurological impairments. Significantly, Dr. Kucher provides no rationale or an explanation on what objective evidence is required, when both he and Dr. Basile have diagnosed the applicant with a TBI. Nor, does Dr. Kucher provide any rationale on why the proposed SPECT scan would not constitute as objective evidence, or why it is not reasonable and necessary here, when the applicant reported ongoing headaches and overusing medication for this. Instead, Dr. Kucher vaguely opined that the proposed OCF-18 is not reasonable and necessary, and there was no current objective neurological impairments.

79Finally, I agree with the applicant that Dr. Ornstein is not a physician, and therefore cannot comment on imaging or nuclear medicine.

80Accordingly, I find that the applicant has met his evidentiary onus to establish the proposed SPECT scan is reasonable and necessary, and the applicant is entitled to interest under s. 51.

The applicant is not entitled to the OCF-18 for a GOS-E Assessment

The applicant is not entitled to an OCF-18 in the amount of $2,195.00 for review of the records for the GOS-E Assessment Report.

81I find that the applicant has not established on a balance of probabilities that the GOS-E Assessment and file review is reasonable and necessary

82The applicant argues that one OCF-18 was submitted for the review of the records for the assessment, and the second was for the actual assessment. The applicant submits that this assessment was used in conjunction with a neurology assessment to determine if the applicant had suffered a catastrophic (“CAT”) impairment. The applicant argues that the fees are reasonable under s. 21(1)(5) as extensive work goes into a GOS-E assessment. Critically, the applicant provided no submissions on why the proposed GOS-E assessment is reasonable and necessary.

83In response, the respondent argues that the maximum payable for a s. 25 assessment is $2,000.00, which includes report planning and writing. Further, the respondent argues that these OCF-18s are statute barred, and they were not signed by the applicant or health practitioner.

84In his reply submissions, the applicant submits that as a result of the COVID-19 pandemic, all limitation periods were suspended from March 16, 2020 to September 14, 2020, in accordance with Ontario Regulations 73/20 and 457/20.

85I agree with the applicant’s arguments relating to the suspension of the limitation periods provided by Ontario Regulations 73/20 and 457/20. As the OCF-18s were denied on July 14, 2020, and the applicant filed his application by August 31, 2022, he is not statute barred, and therefore may proceed with this issue.

86Against the respondent’s arguments, the applicant has produced complete copies of these OCF-18s, which were signed by him and the relevant health care practitioners.

87It is well-settled that CAT assessments are governed by s. 15 of the Schedule. The correct legal test is not whether the fees are reasonable as argued by the applicant, rather, he has to demonstrate that it is reasonable and necessary.

88As noted above, the applicant made no submissions on why or how the proposed assessment is reasonable and necessary. The applicant must direct the Tribunal to the relevant evidence in support of his case and explain why it establishes that the proposed assessments are reasonable and necessary. The applicant cannot submit evidence and leave it up to the Tribunal to connect the dots and make his case. Doing so inappropriately places the Tribunal in the role of his advocate.

89Likewise, the applicant provided no submissions on why the proposed file review is reasonable and necessary, or why the fees are reasonable under s. 21(1)(5). In my view, the applicant’s position that the fees are reasonable because extensive work goes into an GOS-E assessment falls well short of meeting his onus.

90Lastly, contrary to the applicant’s position, the disputed OCF-18 in the amount of $2,195.00 does not only pertain to a file review. Rather, the OCF-18 also pertained to: collaboration with clinical practices/activities, completion, review and certification of the OCF-18, travel costs, and OT treatment sessions, research, planning, and documentation for each session. The applicant provided no submissions on why each of these components of the OCF-18 are reasonable and necessary. As the onus is on the applicant, and he has not provided any submissions, he has not demonstrated that the OCF-18 is reasonable and necessary.

91For all these reasons, I find that the applicant is not entitled to either the OCF-18 for the GOS-E Assessment and file review.

The applicant is entitled to the OCF-18 in the amount of $3,153.61 for OT Treatment

92I find that the applicant has met his onus to establish that the proposed OT Treatment is reasonable and necessary.

93The applicant submits that the disputed OCF-18 pertains to six OT sessions, review of the medical/rehabilitation documents, planning, preparation, standardized assessment consultation with other treatment providers, documentation and report writing. He argues that the goals of the OCF-18 is to address his ongoing occupational performance issues, increased independence, and safety, enhance performance, participation, and engagement in activities of daily or normal living. Finally, the applicant argues that he has impairments with housekeeping, personal care, and activities of daily living, and therefore the proposed OT sessions are reasonable and necessary.

94The respondent relies on its s. 44 Occupational Therapy Assessment by Ms. Sivananthan, OT, who determined that the applicant had resumed his daily activities without modification or restriction and did not require OT services.

95There is no dispute that the applicant sustained a TBI, physical impairments, and psychological impairments from the accident. Instead, the disagreement between the parties arises over the severity of these impairments, whether it is still ongoing, and whether it affects the applicant’s ability to complete his housekeeping, personal care, and daily activities. As noted above, both Drs. Basile and Kucher have opined that the applicant sustained a TBI. Likewise, Drs. Ornstein and Walters have concluded that the applicant sustained an Adjustment Disorder, with mixed anxiety and depressed mood, persistent, mild, WAD-II strain, left elbow contusion, left knee contusion, and lumbar strain.

96I accept the applicant’s evidence that he has ongoing physical, and cognitive impairments that are affecting his daily activities. Both Drs. Basile and Kucher have diagnosed the applicant with a TBI. Moreover, the applicant reported to Dr. Kucher that he continued to have headaches, and there was concern that he was overusing over the counter medication. While Dr. Kucher concluded that the applicant had no objective neurological impairment, he provided no rationale on why the applicant’s diagnosis of a TBI, and continued reporting of headaches, did not equate to having an ongoing neurological impairment. Nor, did Dr. Kucher address why an objective neurological impairment was required, especially when the applicant has already been diagnosed with a TBI.

97Similarly, the applicant has consistently self-reported that he has physical impairments from this accident to all s. 25 and 44 assessors from 2019 to 2023. Dr. Friedlander diagnosed the applicant with chronic pain in December of 2019. Despite the chronic pain diagnosis and the applicant’s continuous self-reporting, Dr. Walter opined that the applicant has no objective reproducible musculoskeletal impairment. However, Dr. Walter did not address Dr. Friedlander’s diagnosis of chronic pain, or why the applicant continued to have limitations with his housekeeping tasks despite the passage of time since the accident.

98For a period of nearly four years, the applicant has consistently reported to various assessors that he has difficulties with his housekeeping tasks, because of his cognitive, and physical impairments. These assessors include: Drs. Miller, Tanwar (July 8, 2019), Basile (December 5, 2019), Friedlander (December 11, 2019), Ornstein (July 9, 2020), Miller/Walton (November 30, 2020), Kucher (March 2, 2021) and Ms. Peacock (August 20, 2020), Mr. Phillip (May 10, 2021), and Ms. Sivananthan (April 3, 2023). Thus, I accept that the applicant’s physical and cognitive impairments are affecting his ability to complete his housekeeping tasks.

99Finally, Ms. Sivananthan did not conclude that the applicant resumed his daily activities without modification or restriction, as argued by the respondent. Instead, Ms. Sivananthan noted in her report that the applicant endorsed experiencing ongoing symptoms, which impeded his engagement with his daily activities, including work, housekeeping and components of his personal care. Significantly, Ms. Sivananthan did not directly address whether the proposed services are reasonable and necessary, instead she summarized the conclusions of Drs. Kucher and Walters (as noted above), and therefore concluded that the OCF-18 was not payable.

100As a result, I find that the applicant has demonstrated the proposed OCF-18 for OT Treatment is reasonable and necessary. The applicant is also entitled to interest under s. 51.

The applicant is not entitled to an OCF-18 in the amount of $3,987.55 for physiotherapy treatment dated February 7, 2023

101Based on the totality of the medical evidence, I find that the applicant has not proven on a balance of probabilities that the proposed OCF-18 is reasonable and necessary.

102The applicant argues that the goals of physiotherapy treatment are to address his pain, increase range of motion, and strength. He further argues that Drs. Friedlander, Basile, Abouali, and Ms. Marla Tennen, registered nurse, Ms. Ingles and Ms. Gill have recommended the proposed services. The applicant also relies upon the progress reports completed by Dr. Michael Malatesa, treating chiropractor, dated July 15, 2019 and September 16, 2019.

103The respondent relies upon the s. 44 reports of Dr. Walters dated August 20, 2020, March 1, 2021, and March 2, 2021, where he concluded that there was no objective evidence of a musculoskeletal impairment, and that the applicant had reached maximum medical recovery.

104First, the applicant has not provided contemporaneous medical records from his family physician Dr. Sequeira, recommending physiotherapy services. Indeed, the last entry that the applicant tendered from Dr. Sequeira was dated September 14, 2018, nearly from five years ago.

105I acknowledge that a large part of the applicant’s case rests on the recommendations made by the various s. 25 assessors as noted above, at paragraph 102. However, the s. 25 reports completed by Drs. Friedlander, Basile, Abouali and Ms. Ingles/Gill/Tennen are not contemporaneous to the proposed OCF-18, as these were done from 2019 to 2021, and this OCF-18 was submitted in 2023. Thus, the applicant has not produced a contemporaneous medical opinion from either a treating practitioner or an assessor who recommends the proposed services.

106At last, I find the progress reports of Dr. Malatesa to be of limited evidentiary value, as there is limited evidence of improvement with respect to the stated treatment goals.

107For example, in his July 15, 2019 progress report, Dr. Malatesa noted that the applicant had 10% range of motion in his flexion and extension of his lower back. In the September 16, 2019 progress report, Dr. Malatesa noted that the applicant had the same restrictions to his lower back, despite receiving the previous 18 sessions, and his prognosis remained the same.

108In summary, I find that the applicant has not met his onus to establish that the proposed OCF-18 is reasonable and necessary.

The applicant is not entitled to the OCF-18 in the amount of $2,163.85 for speech-language treatment dated October 7, 2022

109I find that the applicant has not established on a balance of probabilities that the proposed speech-language treatment is reasonable and necessary.

110The applicant submits that the disputed OCF-18 pertains to six sessions of speech-language therapy sessions, the goals of which include: to address his cognitive and communication difficulties, and to improve his function in his daily activities. The applicant argues that these goals are reasonable, and has been recommended by Ms. Faria Kazmi, speech language pathologist, Ms. Burnett, Ms. Lavji, and Ms. Elma, all of whom are OTs.

111In response, the respondent argues that Drs. Bradbury and Peacock have determined that there is no accident-related cognitive or neurocognitive impairment that would require these services.

112The applicant largely relies upon the s. 25 speech-language pathology assessment, conducted by Ms. Kazmi, on May 5, 2020, to support that the proposed services are reasonable and necessary. In this s. 25 report, Ms. Kazmi concluded that the applicant had mild impairments in auditory comprehension secondary to challenges with attention/concentration following the accident. Further, Ms. Kazmi concluded that the applicant experienced moderate challenges with expressive language and social communication, following the accident. As well, Ms. Kazmi noted that the applicant reported changes to the fluency of his speech; that the applicant reported challenges with reading fluency and comprehension, written expression, and he had moderate executive function impairments. As a result, Ms. Kazmi recommended the proposed speech-language pathology treatment.

113In comparison, Dr. Bradbury in her s. 44 Neuropsychological Assessment, dated February 16, 2023, noted that the applicant had low average range for auditory and visual spatial proceeding speed, and in areas of executive processes, including reasoning, cognitive flexibility, planning, and organization strategy, and verbal fluency. However, Dr. Bradbury opined that the applicant was generally a cognitively capable individual and was not demonstrating any substantive neurological impairment that would meet the threshold for a neurocognitive disorder. Dr. Bradbury further noted that it had been four years since the accident, and therefore the applicant’s concussion should have resolved by now, and that physical pain, sleep disruption and emotional variability can complicate a clinical presentation and prolong recovery course.

114On April 6, 2023, Ms. Peacock, completed an s. 44 Speech-Language Pathology Assessment Report. In her report, Ms. Peacock reviewed and summarized a pre-accident Psychiatric Assessment Report by Dr. A. Das, dated March 16, 2018 (only a few months before this accident). In Dr. Das’s report, it was indicated that the applicant experienced issues with attention and concentration prior to the accident, and a possible diagnosis of attention deficit hyperactivity disorder (ADHD). Dr. Das also noted that the applicant developed problems with focus and concentration at his employment, and struggled at school due to distractibility, poor concentration, and daydreaming. Further, Dr. Das noted that the applicant had issues with assignments, organization, remembering appointments, and obligations, and difficulties with initiation, as well as difficulty sustaining attention during boring or repetitive tasks and difficulty concentrating on what people say to him.

115Returning back to Ms. Peacock’s portion of the report, she further noted that the applicant performed in the below average range for:

i. Verbal memory (immediate and delayed recall);

ii. Attention for language-based stimuli;

iii. Auditory processing and comprehension;

iv. Processing and comprehension of written information; and

v. Complex verbal reasoning.

116Ms. Peacock also reviewed Dr. Ornstein’s report, of July 9, 2020, where he determined that the applicant had no neurocognitive impairment, and that “testing did indicate some areas of cognitive weakness, which more suitably support the possibility of pre-accident academic limitations, as opposed to, as a direct result of his subject motor vehicle accident.” Dr. Peacock further noted that Dr. Ornstein did acknowledge the perceptions of pain, fatigue and psychological dysfunction may be impacting upon the applicant’s neurocognitive functioning, however there was a lack of evidence supporting an ongoing physical or psychological impairment.

117Ultimately, Ms. Peacock determined that there was evidence of mild-moderate deficits in aspects of cognitive communication, however based on the above-noted evidence, there was insufficient evidence to conclude that these deficits are attributable to the effects of this accident.

118I prefer the evidence of Dr. Bradbury and Ms. Peacock over Ms. Kazmi, Ms. Burnett, Ms. Lavji, and Ms. Elma for the following three reasons. First, Ms. Kazmi recommended the speech-language services based solely on the applicant’s cognitive impairments, and not because of his physical and psychological impairments. Indeed, while Ms. Kazmi noted that the applicant reported low mood, decreased motivation, personality changes, and heightened anxiety, she did not address whether this played a factor in his cognitive abilities. As noted by Drs. Bradbury and Ornstein, physical pain, sleep disruption, and emotional variability could be impacting the applicant’s neurocognitive function, which was not addressed by Ms. Kazmi.

119While I acknowledge the applicant’s position that the respondent has not conducted a recent s. 44 psychological assessment to determine whether impairments could be affecting him in a neurocognitive fashion, and that a negative inference should be drawn, I disagree. The onus is on the applicant to prove, and not on the respondent to disprove. He did not proffer records from a treating psychologist, or his family physician that support his position.

120Second, Ms. Kazmi did not review the pre-accident report of Dr. Das, unlike Ms. Peacock. Instead, Ms. Kazmi relied solely on the applicant’s self-reporting of his pre-accident health history who advised that he had no pre-existing cognitive concerns or issues. Meanwhile, as noted by Ms. Peacock in her report, Dr. Das met with the applicant a few months before this accident and noted a number of cognitive concerns as highlighted above. Therefore, I place less weight on Ms. Kazmi’s report, as in my view, she was not aware of the applicant’s pre-existing cognitive issues.

121Finally, I place little weight on the recommendations of Ms. Burnett, Ms. Lavji, and Ms. Elma. I acknowledge the applicant’s reliance on these recommendations to support that the treatment is reasonable. However, Ms. Burnett/Lavji’s report was conducted in May of 2019, and therefore it is not contemporaneous to the proposed OCF-18. As noted by Drs. Ornstein, Bradbury, and Ms. Peacock, the applicant’s concussion should have been resolved by now, and that while his physical impairments, sleep and psychological impairments may be impacting his current neurocognitive function, there was no evidence of an ongoing impairment. Likewise, I place little weight on Ms. Elma’s recommendation for speech therapy, as she provided a limited rationale on why this was required, other than just stating that it was recommended by Ms. Kazmi.

122The applicant for the first time in his reply submissions submitted that the respondent was non-compliant with s. 38(8) of the Schedule, and therefore this OCF-18 was payable under s. 38(11), and that all of the respondent’s s. 44 reports should be excluded, as it did not provide an Acknowledgement of Expert’s Duty.

123I also find that the applicant’s reply was improper with respect to raising new s. 38(8) non-compliance arguments and the exclusion of all s. 44 reports. It is well settled that the purpose of reply submissions is for the party who bears the onus in the dispute to respond to any issues that were raised in the opposing party’s submissions, which could not have been reasonably raised in initial submissions. Reply submissions do not present an opportunity to raise new issues that should have been addressed in initial submissions, or, as it relates to the subject proceeding, to restate submissions, evidence and arguments. As a result, I decline to consider these arguments.

124All-in-all, I find that the applicant has not met his onus to establish entitlement to the proposed speech-language treatment.

The respondent is not liable to pay an award

125I find that the applicant has not met his evidentiary onus to establish that he is entitled to an award or interest.

126Pursuant to section 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. The test for a s. 10 award is whether the insurer’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this criteria.

127It is well-settled that insurers are not held to a standard of perfection in their adjusting decisions and that a s. 10 award is meant to act as a deterrent against bad faith conduct by an insurer and not as a punishment for arriving at a wrong conclusion.

128The applicant argues that the respondent had an array of medical documentation to support entitlement to the proposed OCF-18s, ACBs, and Post-104 IRBs, and despite having this information it maintained its denial, which was a rigid and inflexible position.

129The respondent submits that it is not liable to pay an award.

130Critically, the applicant, did not provide particulars or advise which medical documents, that he claims, the respondent took a rigid and inflexible position on. As such, the applicant has not provided evidence, to demonstrate that the respondent disregarded compelling medical evidence which resulted in the respondent unreasonably withholding or delaying payment for the disputed OCF-18s. Thus, I find that the applicant has not established that the respondent’s conduct rises to the threshold to warrant an award, and as such, no award is payable.

ORDER

131For the reasons outlined above, I find that:

I. the applicant is not entitled to ACBs, nor interest.

II. The applicant is not entitled to post-104 IRB, nor interest.

III. The applicant is entitled to an OCF-18 in the amount of $3,200.00, for a SPECT scan, plus interest in accordance with s. 51 of the Schedule.

IV. The applicant is entitled to an OCF-18 in the amount of $3,153.61 for OT treatment, dated October 7, 2022, plus interest in accordance with s. 51 of the Schedule.

V. The applicant is not entitled to the following OCF-18s, plus interest:

a. $2,195.00 for review of the records for the GOS-E Assessment Report, dated June 29, 2020;

b. $2,115.35 for the GOS-E Assessment Report, dated June 29, 2020;

c. $3,987.55 for physiotherapy treatment dated February 7, 2023; and

d. $2,163.85 for speech-language treatment dated October 7, 2022.

VI. The respondent is not liable to pay an award.