Mirzaie v. Intact Insurance, 2024 CanLII 123332

Citation: Mirzaie v. Intact Insurance, 2024 ONLAT 23-003877/AABS

Licence Appeal Tribunal File Number: 23-003877/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:

Asghar Mirzaie Applicant

and

Intact Insurance Company Respondent

DECISION

ADJUDICATORS: Lisa Yong Amar Mohammed

APPEARANCES:

For the Applicant: James Srebrolow, Counsel Alexander Chekina, Counsel

For the Respondent: Darrell March, Counsel

Court Reporter: Joyce Espino

Heard by videoconference: July 2 to 9, 2024

OVERVIEW

1Asghar Mirzaie (“the applicant”) was involved in an automobile accident on August 16, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The was denied benefits by Wawanesa Insurance (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2Has the applicant sustained a catastrophic impairment as defined by the Schedule?

[3] Is the applicant entitled to services proposed by York Medical Centre in the treatment plans/OCF-18s (“plan”) as follows: (i) $3,200.00 for physical rehabilitation services, in a plan dated March 18, 2019; (ii) $3,200.00 for physical rehabilitation services, in a plan dated July 2, 2019; (iii) $3,200.00 for physical rehabilitation services, in a plan dated July 29, 2020; (iv) $8,600.00 for physical rehabilitation services, in a plan dated August 17, 2020; (v) $2,200.00 for social rehabilitation counselling, in a plan dated September 21, 2020; (vi) $3,200.00 for physical rehabilitation services, in a plan dated December 15, 2020; and (vii) $2,000.48 for other goods and services in a plan dated August 13, 2021?

[4] Is the applicant entitled to the assessments proposed by Total Health Care Solutions, as follows: (i) $2,665.50 for a chronic pain assessment, in a plan dated January 9, 2023; (ii) $2,486.00 for an attendant care assessment, in a plan dated January 9, 2023; and (iii) $9,440.00 ($21,192.00 less $11,752.00 approved) for a catastrophic impairment assessment, in a plan dated January 9, 2023?

5Is the applicant entitled to $200.48 for other goods and services, submitted on a claim form (OCF-6) dated June 24, 2021?

6Is the applicant entitled to attendant care benefits in the amount of $6,000.00 per month from August 16, 2016 to date and ongoing?

7Is the respondent liable to pay an award under s.10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

8Is the applicant entitled to interest on any overdue payment of benefits?

9Are the parties entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules, 2023 (“Rules”)?

10The applicant withdrew issue 5 and did not argue issues 3(vii) and 4(iii) as listed above at the hearing.

RESULT

11The applicant has not sustained a catastrophic impairment as defined by the Schedule.

12The applicant is entitled to payment in the amount of $2,665.50 in the plan for a chronic pain assessment, plus interest pursuant to s. 51 of the Schedule.

13The applicant is not entitled to other treatment and assessment plans in dispute.

14The applicant is not entitled to an award.

15The parties are not entitled to costs.

PROCEDURAL MOTIONS

16On June 7, 2024, the applicant filed a motion in which he made a number of requests for relief (“Motion”). The Tribunal issued a Notice of Motion on June 11, 2024, ordering that the Motion would be heard at the videoconference hearing commencing on July 2, 2024.

17We heard the parties’ submissions and address each of the applicant’s requests for relief sought as follows.

Applicant’s request to file written submissions is denied

18We denied the applicant’s request for leave to file written submissions.

19The applicant requested leave to file extensive written submissions due to the applicant's view that the complexity and number of issues in dispute required lengthy written submissions. The motion was scheduled to be heard at this video-conference hearing. We were of the opinion that the relief requested in the motion could be adequately addressed with oral submissions made within the video-conference hearing. For the reasons above, we find that the parties are to make oral submissions on all issues before us at this hearing. The applicant’s request is denied.

Applicant’s request for issuance of a summons is denied

20We denied the applicant’s request for issuance of a summons. We note that Rule 8.2 of the Rules sets out the requirements for filing a request for a summons which includes filing the form in a timely manner so that the Tribunal can adjudicate and issue a summons in advance of the 10-day deadline for service. We find it unnecessary to engage with this fresh request because it does not comply with the requirements of Rule 8.2. This request is denied.

Applicant’s request to order the respondent to produce Srima Samuel as an adverse witness is denied

21We allowed the respondent an opportunity to examine Ms. Srima Samuel, the adjuster, if it so chose, and the applicant to cross-examine the adjuster thereafter.

22The applicant submitted that Ms. Samuel was served with a previously issued summons obtained by the applicant. The applicant argued he should be permitted to cross-examine the witness. The respondent submitted that it had no intention to call the adjuster to testify. The respondent argued that since the adjuster was not being called by the respondent and would only be attending to testify as a result of the applicant’s summons, the respondent argued the adjuster should be treated as the applicant’s witness. The respondent argued the applicant should not be allowed to cross-examine his own witness.

23We disagree with the respondent that the witness should be seen as property of either party. We permitted the applicant to cross-examine the adjuster when she was called to testify. However, if the respondent wished to examine the witness, it could do so prior to the applicant’s cross-examination.

Applicant’s request for the respondent to provide unredacted log notes for inspection by the Tribunal is denied

24The applicant’s request to provide unredacted log notes for inspection by the Tribunal is denied.

25The applicant submitted that he required the unredacted log notes from the respondent and for the same to be reviewed by the Tribunal because the redacted portions may contain information pertinent to the respondent’s denials on the issues in dispute. The respondent objected and submitted that the adjuster’s log notes are subject to privilege and reserves and have been appropriately redacted in accordance with the Case Conference Report and Order.

26We denied the applicant’s request because the applicant did not provide persuasive evidence that the redacted log notes contained pertinent information relevant to the issues in dispute in support of his allegations. Also, we find that it would cause unnecessary delay in this proceeding. If there were issues with productions it should have been raised in a timely manner, sufficient for the Tribunal to deal with the issues in advance of the hearing. We find that it is inappropriate, on the first day of a video-conference hearing, to make an order that is essentially a request for further productions.

A request for costs to be added as an issue in dispute is granted

27Pursuant to Rule 19.1 of the Rules the parties are permitted to make a request to the Tribunal for costs. As both parties have submitted that they intend to seek costs, we allowed costs to be added as an issue in dispute.

Applicant’s request for a transcript of evidence from the examination for discovery in his tort claim to be admitted into evidence is denied

28The applicant’s request to enter his transcript from his tort claim as evidence is denied.

29We denied the applicant’s request to enter his transcript of evidence from his tort claim as evidence in this hearing. Since the applicant will be testifying, he will have an opportunity to give his testimony relevant to the issues in dispute which will be sufficient for the purposes of this hearing. We do not see the value and necessity of the transcript because it is likely to be unduly repetitious and irrelevant to this application: see s. 15 of the Statutory Powers Procedure Act, RSO 1990, c S.22.

ANALYSIS

The applicant has not sustained a catastrophic impairment

30We find that the applicant is not catastrophically impaired (“CAT”) as defined in the Schedule.

31The applicant seeks this determination under two sections of the Schedule, section 3.1(1)7 (“Criteria 7”) and section 3.1(1)8 (“Criteria 8”). Under Criteria 7, the applicant must prove that, as a result of the accident, he has a combination of physical and psychological impairment ratings that result in a whole person impairment (“WPI”) of 55% or more when rated in accordance with the American Medical Association’s Guide to the Evaluation of Permanent Impairment (the “Guides”). Otherwise, under Criteria 8 the applicant must prove that he suffers from marked impairment (“Class 4”) in at least three of the four domains, or at least one extreme impairment (“Class 5”), due to a mental or behavioural disorder, as outlined in the Guides.

32The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one, as established in Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30. We find that the applicant does not meet the test as set out in the Schedule based on the cumulative evidence referred to at this hearing,

Criteria 7

33We are not persuaded that the applicant sustained a CAT impairment under Criteria 7.

34The applicant relies on CAT assessment reports dated March 6, 2023, by Total Healthcare Solutions. The assessments were completed by Ajodele Zapparoli, occupational therapist, Dr. Stephanie Wiesenthal, psychiatrist, Dr. Vincenzo Basile, neurologist, and Dr. Tajedin Getahun, orthopedic surgeon, who also prepared the executive summary. These assessors determined that the applicant had a 62% WPI under Criteria 7.

35The respondent relies on the CAT Insurer Examination (“IE”) assessment reports dated August 15, 2023, commissioned by Seiden Health. The IE assessments were completed by Anghela Sivananthan, occupational therapist, Dr. Gilbert Yee, orthopedic surgeon, Dr. Ladowsky-Brooks, neuropsychologist, Dr. Joel Nathan Eisen, psychiatrist, Dr. Garry Moddel, neurologist, and Dr. David Mula, general practitioner, who prepared the executive summary. The IE assessors determined that the applicant had a 37% WPI under Criteria 7, which does not meet the threshold of 55% WPI required by the Schedule.

36The following chart summarizes the total WPI ratings relied upon by the parties:

Impairment	Applicant	Respondent
	Dr. Getahun	Dr. Yee
Upper Extremity Right shoulder Left shoulder	7 5	7
Lower Extremity Right knee patellafemoral crepitus	2	0
Lumbosacral Spine	19	5
Cervicothoracic Spine Neck Mid back	5 5
Medication	3
Sub-total	32%	21%
	Dr. Basile	Dr. Moddel
Mental status and integrative functional ability	14
Sleep Impairment	3
Headaches Cervicogenic headaches Migrainous headaches Tension headaches	10 2 1
Hearing	2
Sub-total	29%	0%
	Dr. Wiesenthal	Dr. Eisen
Mental & Behavioural	BPRS 30% GAF 15% PIRS 20% MEAN 20%	BPRS 40% GAF 20% PIRS 20% MEAN 20%
COMBINED TOTALS	62%	37%

Upper extremity 7% and 5%

37We accept, on a balance of probabilities, the applicant’s upper extremity ratings of 7% and 5%. The applicant’s assessors and the IE assessors agree the applicant suffered from bilateral shoulder injury as a result of the accident. The applicant continued to complain of pain in his shoulders, including to Dr. Belfon on September 15, 2021, with a pain rating of 7-9 out of 10.

Lower extremity 2%

38We accept, on a balance of probabilities, the applicant’s lower extremity rating of 2%. As per the hospital records dated August 16, 2016, he was complaining of pain in the groin, right buttock, right hip, midline back, and from right knee up to the thigh. Further assessments are consistent about the applicant’s continued complaints of right knee pain. In February of 2023, Dr. Karmy diagnosed the applicant with chronic mechanical right knee pain and in August of 2023, Dr. Yee notes the applicant’s report of a pain rating of 8-9 out of 10.

Spine 19%

39We accept, on a balance of probabilities, the applicant’s spine rating of 19%. As abovementioned, the hospital records dated August 16, 2016, noted that the applicant was complaining of pain in the groin, right buttock, right hip, midline back, and from right knee up to the thigh. Further assessments are also consistent about findings and the applicant’s continued complaints of back pain. In February of 2023, Dr. Karmy notes a lower back pain rating of 7-9 out of 10 that is constantly present and noted cervical, thoracic and lumbosacral tenderness. Dr. Karmy diagnosed the applicant with sacroiliac joint dysfunction and chronic mechanical neck and lower back pain. Dr. Karmy also diagnosed lower back radiculopathy caused by the accident. Dr. Yee notes his view that there is a question of radiculopathy that requires further comment by a neurologist. Dr. Basile, neurologist, in his report dated March 1, 2023, diagnosed the applicant with an accident-related cervical and lumbosacral radiculopathy. Dr. Getahun notes the applicant’s history and findings compatible with a specific injury to his lower back including multiple assessors identifying radiculopathy in the right side.

Medication 3%

40We accept, on a balance of probabilities, the applicant’s medication rating of 3%. Dr. Getahun provided a 3% rating for medication and testified that this is a discretionary rating between 1-3%. The Guides provide this increased impairment percentage to account for a patient not regaining their previous status of normal good health. In this case, Dr. Getahun testified that it is provided to account for the applicant’s issues not resolving and becoming chronic despite the applicant being prescribed medications and undergoing treatment. The applicant testified that he stopped taking pain medication as it did not provide much relief to his pain symptoms. The Guides consider situations where medication is declined and provide the view that this decision should neither decrease nor increase the estimated percentage of the patient’s impairment.

Mental status and integrative functional ability 14%

41We do not accept, on a balance of probabilities, the applicant’s mental status ratings. Dr. Basile rates the applicant in this category on the basis of diagnosing him in March of 2023, over six years post-accident, with post-concussive syndrome consistent with a traumatic brain injury. He reports that the applicant did not suffer from either retrograde or anterograde amnesia, no loss of consciousness but that there is confusion whether the applicant hit his head. Applicant’s counsel agreed with our opinion that the applicant, on a balance of probabilities, did not hit his head and that his GCS score was recorded as 15.

42In contrast to Dr. Basile’s opinion, Dr. Ladowsky-Brooks, IE assessor and neuropsychologist, in April of 2023 concludes any attention and mental flexibility difficulties are unrelated to the accident. We agree, because the ambulance call report states that there was no injury to the head or any loss of consciousness. Dr. Ladowsky-Brooks points to the significant time that has passed since the accident and to the applicant having several medical conditions that are risk factors for cognitive impairment which are unrelated to the accident to provide a 0% rating. We agree with his report which concludes that there is insufficient evidence to attribute the possible mild difficulties to the accident from 2016.

Sleep Impairment 3%

43We accept, on a balance of probabilities, the applicant’s sleep rating of 3%. The applicant’s family doctor notes a week after the accident that the applicant was complaining of sleep issues and the medical record shows the applicant continued to have these issues. This is corroborated by his reports to Amber Williams, social worker, where he continued to have headaches and trouble sleeping in August of 2019. In February of 2023, Dr. Karmy diagnosed the applicant with a sleep disorder caused by the subject accident.

Headaches 10%, 2% and 1%

We do not accept, on a balance of probabilities, the applicant’s headache ratings. Dr. Wiesenthal notes the applicant’s reports of pain behind his eyes when coughing and the applicant’s medical records show consistent complaints of headaches since shortly after the accident. However, we agree with the respondent that pre-accident medical records establish that this was a pre-existing issue. In October of 2015 the applicant attended an emergency room because of a headache. Similar to the complaints following the accident, such as to Dr. Wiesenthal, the applicant’s chief complaint was a headache, and he complained that he was having difficulty speaking as a result and had irritation in his eyes. The respondent also argues, and Dr. Moddel’s report states, that there should be no rating for headaches because they are not rateable under the Guides. Given that we find the applicant’s headaches were pre-existing, a non-accident related condition, we do not accept the applicant’s headache ratings.

Whole Person Impairment 47%

44Without the benefit of the ratings for mental status, headaches and hearing, the applicant’s total WPI is 47%, which is less than the 55% threshold required under the Schedule. This means that the applicant does not meet the definition of catastrophic impairment under Criteria 7.

45For the reasons above, we find that the applicant is not catastrophically impaired under Criteria 7.

Criteria 8

46We find that the applicant has not sustained a catastrophic impairment under Criteria 8.

47Both parties’ CAT psychiatry assessment reports found the applicant to have a Class 4 or marked impairment in the domain of adaptation, and Class 3 or moderate impairment in the domain of activities of daily living. Since the parties agree on the rating in these two domains, our analysis will be focused on the remaining two domains, namely, social functioning and concentration, persistence and pace.

Social Functioning

48Based on the Guides, the factors to consider under this domain are:

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, neighbors, 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. Strength 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 behavior, consideration for others, awareness of others’ sensitivities, and social maturity also need to be considered.

49In Dr. Wiesenthal’s s. 25 CAT psychiatry assessment report dated February 27, 2023, she finds the applicant has a Class 4 or marked impairment under this domain. According to Dr. Weisenthal, the applicant reported that his ex-girlfriend left him due to his post-accident injuries and none of his friends call him anymore. Dr. Weisenthal also refers to the concurrent occupational therapy assessment report dated January 27, 2023, by Mr. Zapparoli who reported that the applicant has lost contact with his friends as they are either very busy or do not answer calls.

50We disagree with Dr. Wiesenthal’s conclusion as she did not provide her reasons to justify a Class 4 or marked impairment under this domain. Based on the applicant’s testimony and Mr. Zapparoli’s report, the evidence does not support the applicant being withdrawn or isolated due to mental or behavioural concerns. The evidence does not support that he is unable to appropriately interact or get along with others. We do not find a history of altercations, evictions, firings or a fear of strangers, or evidence to suggest the applicant avoids interpersonal relationships. The applicant’s testimony is that his ex-girlfriend left him because of the physical state she saw him in post-accident. The applicant’s testimony is that when his friends became aware of the accident, they found excuses to not visit him. The applicant’s ex-wife visits every 7-10 days to provide assistance with housekeeping and meal preparation. The applicant goes out for coffee, sometimes alone or sometimes with friends. The applicant attends social events post accident if there is somewhere he can sit. The applicant goes to his local mall once or twice a week, does grocery shopping and fills up gas in his vehicle. Although his landlord and ex-wife may help him with groceries, the applicant’s evidence does not support social withdrawal or avoidance of social interactions.

51We find that the evidence shows that the applicant is cooperative, considerate of others, aware of others’ sensitivities and has social maturity. Mr. Zapparoli’s report noted that the applicant reported “I’m alone…my voice goes because I don’t talk too much…I want to talk to people…I like to have conversations…because a human being is made to be social”. Mr. Zapparoli testified that the applicant was afraid to ask his ex-wife to participate in a collateral source interview for fear that it may anger her and that he was reliant on her to provide assistance and was worried about losing her support. We find this is evidence of his consideration of his ex-wife and her sensitivities. We find that this is evidence that the applicant is able to maintain relationships with his landlord, ex-wife and the community.

52For the above reasons, we are not persuaded that he has impairment levels that significantly impede useful functioning as a Class 4 impairment, due to a mental or behavioural disorder. Having found that the applicant does not have a Class 4 impairment in at least three of the four domains, this is sufficient to find him not to be catastrophically impaired under Criteria 8.

The applicant is not entitled to the following plans for physical rehabilitation as they are not reasonable and necessary:

• Issue 3(i) – $3,200.00 in a plan dated March 18, 2019;
• Issue 3(ii) - $3,200.00 in a plan dated July 2, 2019;
• Issue 3(iii) - $3,200.00 in a plan dated July 29, 2020;
• Issue 3(iv) - $8,600.00 in a plan dated August 17, 2020; and
• Issue 3(vi) - $3,200.00 in a plan dated December 15, 2020.

53We find that the applicant is not entitled to the subject plans for physical rehabilitation because they are not reasonable and necessary.

54To 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.

55The applicant submits that he suffered injuries to his neck, shoulder and back as a result of the accident, including headaches and difficulty in sleeping. He relies on the clinical notes and records of his family doctor, Dr. Majid Boozary, testimony of Dr. Sam Bui, chiropractor, the OCF-3 disability certificate completed by Mr. Mohit Rastogi, physiotherapist, diagnostic imaging results and Dr. Grigory Karmy’s Chronic Pain Assessment Report dated February 24, 2023. The respondent relies on its IE report dated October 2, 2020, by Dr. Maria Nesterenko, general practitioner.

56We find Dr. Boozary’s evidence deserving of more weight as he has been the applicant’s family doctor for a long period of time. Dr. Boozary did not recommend physical rehabilitation or physiotherapy beyond June 4, 2018 and subsequently recommended the applicant focus on diet and exercise programs. The applicant argues Dr. Boozary was not his primary treatment provider in relation to the accident and that the Tribunal must consider and give weight to other provider opinions.

57The applicant also referred to a discharge report by Saint Elizabeth Rehabilitation Health dated September 21, 2022 addressed to Dr. Boozary, which stated that the diagnosis or treating condition was “lumbar pain due to inactivity”. This health provider provided treatment including active exercise program, gait training, injury specific education and home exercise program. It further stated that the “Treatment goals met; no further treatment required for treating condition in physio clinic (sic)”; the applicant was provided a self-management program; and noted that “the applicant must continue with an active exercise program. He is limited by present and anticipated pain. He is [discharged] on [Home Exercise Program].”

58We did not find Dr. Bui’s testimony to be helpful in the determination of the subject plans as he provided limited evidence with regards to the applicant’s physical function condition during his time of treatment.

59The OCF-3 completed by Mr. Rastogi, documented the applicant’s accident-related injuries which appear to be soft tissue injuries. The post-diagnostic imaging results were largely unremarkable with mild to moderate degenerative disc disease in the lumbar spine and cervical spine.

60We acknowledge that Dr. Karmy reviewed an extensive list of medical documentation, provided details of the applicant’s complaints and conducted a physical examination of the applicant during his assessment. However, Dr. Karmy reported complaints about the applicant’s hips, knee and ankle pain which were not previously raised by the applicant. We are mindful that the applicant testified that his accident-related injuries were to his neck, shoulders, back and right-side of his body as a result from falling off his bicycle after a car hit his rear tyre.

61Dr. Karmy diagnosed the applicant with a chronic pain syndrome and opined that the prognosis was poor and that the applicant would require multidisciplinary intervention for a prolonged period of time to prevent deterioration of his post-accident condition. Dr. Karmy provided a blanket statement that he agreed that the proposed treatment plans were reasonable and necessary without providing details for which treatment he was referring to. We gave less weight on Dr. Karmy’s report due to the assessment being completed approximately seven years post-accident and because it referred to sites of injury which were not previously raised as accident-related. The report did not provide justification or explanation for which proposed treatment plans were reasonable and necessary.

62The applicant pointed to limited medical evidence that the physical rehabilitation treatment was providing any kind of relief of symptoms or improvement from his accident-related injuries.

63For the above reasons, we are not persuaded that the proposed treatment plans for physical rehabilitation are reasonable and necessary.

Issue 3(v): The applicant is not entitled to the amount of $2,200.00 for social rehabilitation assessment in the plan dated September 21, 2020

64The applicant is not entitled to social rehabilitation assessment as it is not reasonable and necessary.

65This treatment and assessment plan was completed by Ms. Angela Resko, social worker, who proposed a social rehabilitation assessment for $2,200.00. She stated that this included working with the applicant, rehabilitation team and community to provide an assessment and intervention in the areas of psycho-social functioning and discharge planning.

66The applicant did not provide direct submissions with regard to this treatment plan, however we considered the applicant’s submissions regarding a marked impairment in the domain of social functioning under Criteria 8.

67We find that the social rehabilitation assessment is not reasonable and necessary because we disagree with Ms. Resko’s list of the applicant’s injury or sequelae resulting from the accident in her OCF-18 form which she stated as including problems related to social environment, certain psychosocial circumstances, relationship with spouse or partner, employment or unemployment and housing and economic circumstances.

68We acknowledge that the applicant has separated with his ex-girlfriend and reports his friends as being too busy or unwilling to answer his calls. The applicant testified that his ex-girlfriend left him because of the physical state she saw him in post-accident. We find that the applicant is considerate of others, maintains a good relationship with his landlord and ex-wife, and is able to attend the mall once or twice a week without psychological difficulty warranting a social rehabilitation counselling assessment.

69Given the above reasons, we find that the proposed treatment plan is not reasonable and necessary.

Issue 4(i): The applicant is entitled to the amount of $2,665.50 for a chronic pain assessment in a plan dated January 9, 2023 as it is reasonable and necessary

70We find that the applicant is entitled to a chronic pain assessment as it is reasonable and necessary.

71The applicant submits that he suffers from chronic pain as a result of the accident and warrants a chronic pain assessment. He relies on Dr. Karmy’s chronic pain assessment report dated February 24, 2023, as well as the IE report dated September 30, 2021, by Dr. Ahmad Belfon, IE assessor and medical doctor.

72We note that assessments are generally proposed by treating practitioners who may be speculating a particular medical condition that requires further investigation, in this case to determine whether the applicant suffers from chronic pain. Further, assessments may also assist the treating practitioner to determine the types of suitable treatment in relieving the applicant’s complaints.

73We acknowledge that the applicant has suffered physical injuries resulting from the accident which has caused changes to his pre- and post-accident lifestyle. Based on Dr. Karmy’s and Dr. Belfon’s reports, it appears that the applicant’s physical function may have plateaued.

74The applicant testified that he experiences ongoing pain over all of his body since the accident and has difficulties with sitting and walking. There is evidence that he continued to see Dr. Boozary, family doctor, to seek medical advice and was prescribed only Advil and Tylenol in the management of his pain symptoms. Dr. Belfon reported that the applicant has stopped taking the pain medication as it did not help.

75We find that the applicant’s quality of life is diminished due to pain. It is reasonable and necessary for the applicant to assess his physical complaints. This assessment could provide the applicant with alternative methods to deal with his pain, other than medication.

76For the above reasons, we find that applicant is entitled to a chronic pain assessment as it is reasonable and necessary.

Issue 4(ii): The applicant is not entitled to $2,486.00 in a plan dated January 9, 2023, for an attendant care assessment

77We find that the applicant is not entitled to the plan for an attendant care assessment.

78At the outset of the hearing, we provided clear instructions to both parties that any medical records, reports, documents, and any supporting materials that the parties intend to rely on, must be entered into evidence to be considered.

79As abovementioned, to 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.

80During the hearing, the applicant did not make any direct submissions with respect to the subject plan for an attendant care assessment and neither the OCF-18 nor the denial letter specific to the subject plan were entered into evidence.

81As the OCF-18 was not submitted into evidence, it is not possible to review the OCF-18 to assess and conclude on the reasonableness and necessity of the proposed goods and services set out in the OCF-18 for an attendant care assessment.

82Given the above, we find that the applicant does not meet his onus to prove that the subject plan is reasonable and necessary and is not entitled to payment and interest.

Issue 6: The applicant is not entitled to $6,000.00 per month for an attendant care benefit

83We find that the applicant is not entitled to an attendant care benefit.

84Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (“ACBs”) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).

85The applicant submits that he is entitled to an attendant care benefit but also confirms that he has not incurred any attendant care benefit to date. The applicant relies on a Form 1 dated January 4, 2023, completed by Mr. Zapparoli, occupational therapist and his testimony.

86As a result of finding that the applicant does not have a catastrophic impairment, he is not entitled to $6,000.00 per month in attendant care benefit and there is no need to consider if the applicant’s Form 1 dated January 4, 2023, is reasonable and necessary.

87For completeness in our analysis on this issue, we also considered whether the applicant would be entitled to the amount of $3,000.00 per month for attendant care benefit for an insured person who did not sustain a catastrophic impairment as a result of the accident, under s. 19(3)1i of the Schedule. To order payment of $3,000.00 per month of attendant care benefit, the applicant is required to prove that he submitted a Form 1 in accordance with s. 42(1) and incurred the expenses within the period from the accident until 5 years post-accident, pursuant to s. 20 of the Schedule.

88We find that the applicant is not entitled to $3,000.00 per month in attendant care benefit for the period from the accident until August 16, 2021 (i.e. 5 years post-accident) because as he has not pointed to evidence of a Form 1 submitted during the said period and he confirmed that no attendant care expenses have been incurred to date. Therefore, he is not entitled to an attendant care benefit.

Award

89We find that the applicant is not entitled to an award for the following reasons.

90The onus is on the applicant to prove on a balance of probabilities that the respondent unreasonably withheld or delayed the payment of benefits so as to be entitled to an award in accordance with s. 10 of Regulation 664. The Tribunal assesses an award based on whether the insurer’s behaviour is “excessive, imprudent, stubborn, inflexible, unyielding or immoderate,” and may award up to 50% of the total benefits in dispute if it determines that the insurer unreasonably withheld or delayed benefit payments.

91The applicant sought an award under s. 10 of Reg 664, arguing that the adjuster unreasonably denied, withheld and delayed payments. He further submits that the adjuster was biased against the applicant’s accident benefit claim file due to the chiropractor, Dr. San Bui’s prior disciplinary matter and his position of good standing with the medical board. Further, the applicant submits that despite acknowledging his decline in health, the adjuster continued to ignore the applicant’s medical records and continued to deny medical benefits throughout adjusting the file.

92The respondent did not make direct submissions with regards to the issue of an award.

93We find that the threshold for an award is high. On our review of the adjuster’s log notes, we did not find any conduct that can be considered unreasonable on the part of the respondent. We did not find any evidence that the adjuster went against any recommendations of its assessors that were in favour of the respondent or such similar conduct.

94During the hearing, we had already provided directions to the parties’ that Dr. Bui’s past disciplinary actions were irrelevant to the applicant’s accident benefits claim.

95As a result of the above, we are not persuaded on the balance of probabilities that the respondent unreasonably withheld or delayed payment of benefits and we find that the applicant is not entitled to an award.

Interest

96Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest related to the plan for a chronic pain assessment pursuant to s. 51 of the Schedule.

Costs: Neither party is entitled to costs under Rule 19

97We find that neither party is entitled to costs.

98Pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules, costs may be awarded in the event that a party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.

99The applicant did not provide any closing submissions on the matter of costs that he was seeking or the request for costs made by the respondent. The respondent submitted that it was seeking costs because the applicant withdrew CAT Criteria 2 and 6 on the first day of the hearing and submitted that it should be awarded costs for such a last-minute change of the circumstances of the matter. It submits that the applicant failed to provide prior notice before the commencement of the hearing.

100We find that the applicant’s withdrawal of CAT Criteria 2 and 6 on the first day of the hearing does not meet the high standards of conduct that is unreasonable, frivolous, vexatious, or bad faith. Withdrawing the two criteria to an issue in dispute that lack evidence in support of it, even if done shortly before or at the commencement of a hearing, is more reasonable than proceeding with the issues. I find the applicant’s behaviour did not impact the Tribunal’s ability to carry out a fair, efficient and effective process.

101Both the applicant and the respondent’s requests for costs are denied.

ORDER

102The applicant has not sustained a catastrophic impairment as defined by the Schedule.

103The applicant is entitled to payment in the amount of $2,665.50 in the plan for a chronic pain assessment, plus interest pursuant to s. 51 of the Schedule.

104The applicant is not entitled to other treatment and assessment plans in dispute.

105The applicant is not entitled to an award.

106The parties are not entitled to costs.