Licence Appeal Tribunal File Number: 23-002855/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:
Victoria Maria Tenuta
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Victoria Maria Tenuta, Applicant
Sherilyn Pickering, Counsel
For the Respondent:
Miguel Viegas, Technical Consultant
Darrell March, Counsel
HEARD: by Teleconference:
June 4, 2024
OVERVIEW
1Victoria Maria Tenuta, the applicant, was involved in an automobile accident on December 9, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent BelairDirect Insurance Company, Insurer, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
Late Document
2The respondent objected to the applicant’s Brain Injury Symptom Vision Survey and associated documents being entered into evidence. These documents were served on the respondent two days before the hearing. The respondent submitted that it was unable to consult its own experts to address and respond to these late documents.
3The applicant submitted that she believed, in error, that these documents had already been disclosed to the respondent. The applicant also submitted that the late disclosure is the raw test data of medical findings in her brief and that the respondent has sufficient time to have these late documents reviewed by its expert witness before those witnesses testify.
4The lateness was caused by an inadvertent error on the part of the applicant. However, the respondent satisfied me that it is unfairly prejudiced by these documents. Additionally, the medical findings the applicant relies on are already in evidence and this mitigates the impact of excluding the raw test data on the applicant. As such, I did not enter the late documents into evidence.
Objection to a Witness
5The respondent objected to the applicant’s witness Dr. Patrick Quaid, optometrist. According to the respondent, Dr. Quaid is not qualified to provide an opinion related to the applicant’s head injury and brain function.
6The applicant submitted that Dr. Quaid has the expertise to comment on the intertwine between the brain and vision system.
7I did not issue an order excluding this applicant’s witness. In my view, I needed to hear Dr. Quaid’s testimony and review the other evidence in this proceeding before determining the weight to be given to his evidence.
Withdrawal of Criterion 4
8At the start of the hearing, the applicant withdrew the issue of whether she is catastrophically impaired under Criterion 4. The respondent asked for an order confirming that this issue is withdrawn with prejudice. It submitted that a considerable amount of time was spent preparing to address Criterion 4 only to have it withdrawn at the last minute. According to the respondent, these circumstances justify the issuance of an order that prevents the applicant from raising the issue of Criterion 4 again in the future.
9The applicant submitted that they can withdraw issues without prejudice, even in the middle of hearings.
10Section 280 of the Insurance Act, R.S.O. 1990 (the Act) gives the Tribunal the jurisdiction to resolve accident benefit disputes. In my view, the applicant’s withdrawal ends the dispute in regard to whether the applicant is catastrophically impaired under Criterion 4, and the Tribunal no longer has jurisdiction to consider the matter. As such, I find that I do not have jurisdiction to make the order requested by the respondent.
ISSES
11The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to $448.83 ($2,992.95 less $2,544.12 approved) for psychological services, proposed by Fox Psychological Services in a treatment plan/OCF-18 (“plan”) dated April 5, 2021, partially denied on April 14, 2021?
iii. Is the applicant entitled to $14,690.00 ($30,910.00 less $16,310.00 approved) for Catastrophic Impairment Assessments, proposed by East York Physiotherapy and Orthopaedic Rehab Clinic in a plan submitted April 4, 2021, and partially denied on April 23, 2021?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the respondent entitled to costs?
RESULT
12The applicant is not catastrophically impaired.
13The applicant is not entitled to $448.83 for psychological services.
14The applicant is not entitled to $14,690.00 for Catastrophic Impairment Assessments.
15The respondent is not liable to pay an award.
16The applicant is not entitled to interest.
17The respondent is not entitled to costs.
ANALYSIS
Catastrophic Impairment
18The applicant is seeking a determination that she catastrophically impaired under Criterions 7 and 8.
Criterion 7
19A catastrophic impairment under Criterion 7 results when an insured person sustains a mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008 (“Guides, 6th edition”), where the impairment score is combined with a physical impairment rating from Criterion 6 and results in a 55 % or more WPI.
20The applicant relies on the ratings found in the undated Catastrophic Impairment Calculation/Determination Addendum Report of Dr. Jihad Abouali, orthopaedic surgeon. In this report, Dr. Abouali calculates a 52% WPI rating for Criterion 6 impairments. He then adds a mental and behavioural rating of 20% WPI which results in a 66% WPI rating for Criterion 7.
21The respondent submits that the 34% WPI rating for visual impairment under Criterion 6 should be given no weight because Dr. Quaid, the person who made this rating, is not qualified to diagnose impairments related to brain injury.
22Dr. Abouali’s 52% WPI rating for Criterion 6 impairments includes a 34% WPI rating for the visual system by Dr. Quaid. The undated report of Dr. Quaid rates the applicant’s diplopia at 24% WPI. The remaining 10% WPI rating is for other visual impairments.
23Dr. Quaid’s report notes that he conducted an in-person assessment of the applicant on October 15, 2023. There is a video in evidence which shows Dr. Quaid testing the near point of convergence of the applicant’s vision using an instrument that he refers to as being an “R.A.F. rule.” The instrument is a ruler that extends from the applicant’s face. A target with a dot in the centre is attached to the opposite end of the ruler. Dr. Quaid slides the ruler towards the applicant’s face and asks her to say when the dot becomes double. The report of Dr. Quaid states that this occurs at 27-26cm, which is the point where the applicant experiences diplopia, more commonly referred to as double vision.
24The applicant submits that Dr. Quaid used the appropriate measurement tool to assess the applicant’s diplopia. I disagree. The method for measuring diplopia is set out in section 8.3 of the Guides. It states:
“The extent of diplopia in the various directions of gaze is determined on an arc perimeter at 33 cm or with a bowl perimeter. A tangent screen also is acceptable for evaluating the central 30%. Examination is made in each of the eight major meridians by using a small test light of the projected light of approximately Goldman III-4e without adding coloured lenses or correcting prisms.
To determine the impairment of ocular motility, the patient is seated with both eyes open, and the chin resting in the chin rest and centered so that the eyes are equidistant from the sides of the central fixation target.
The presence of diplopia is then plotted along eight meridians of a suitable visual field chart (fig1, p.213). The impairment percentage for loss of ocular motility due to diplopia in the meridian of maximum impairment, according to Fig.3 (below), is combined with any other visual impairment.”
25Dr. Quaid did not measure the extent of the applicant’s diplopia with an arc perimeter, bowl perimeter, or a tangent screen. He did not test her vision on eight major meridians. He also provides no percentage of the applicant’s diplopia within the centre of her vision, which is also required in s. 8.3 of the Guides. As such, he neither followed the testing methods in the Guides, nor did he gather the data needed to calculate the impairment percentage for loss of ocular motility due to diplopia which is required to determine the impairment rating.
26I also note that testing with the arc perimeter is at a distance of 33 cm. According to Dr. Quaid, the applicant has no diplopia at 33 cm. As such, using the correct method of testing would result in no diplopia being detected and a 0% WPI rating.
27I further note that the applicant’s diplopia is intermittent. She has no functional impairment when looking at objects further than 27 cm away from her. Additionally, the medical evidence shows the applicant has the ability to re-focus on closer items as shown by her ability to read. The letter of Dr. Kim Lalonde, optometrist, dated August 13, 2020, confirms that the applicant uses her reading glasses as needed when reading for longer periods. In a letter dated May 26, 2023, Dr. Lalonde states that the applicant finds that she can read for longer periods and holds her focus with more endurance. The applicant testified that she can only focus on close objects for a few seconds. I give little weight to this testimony because it is inconsistent with the evidence of Dr. Lalonde which, over a three-year period, documented a greater ability to sustain near focus and read.
28Dr. Quaid’s report opines that any reported diplopia in the line of sight, even intermittently reported diplopia, results in a 24% WPI rating. Again, I disagree. As noted in s. 8.3 of the Guides, a 24% WPI rating is equivalent to the total loss of vision of one eye, which is a constant and continuous impairment. The applicant has no diplopia when looking at things which are more than 27 cm away and has some functional ability at near distances as demonstrated by her ability to read for “longer” periods of time. As such, diplopia only effects the applicant under specific circumstances. In my view, this is less severe and does not equate to the constant and continuous impairment of losing an eye. This also undermines Dr. Quaid’s 24% WPI rating.
29Dr. Quaid’s testing for diplopia is inconsistent with instructions in the Guides. If he had followed the instructions for testing with an arc perimeter, the results would have been that the applicant has no diplopia. Additionally, the applicant’s diplopia is not a continuous impairment, and effects her on an intermittent basis. For all these reasons, I do not accept Dr. Quaid’s 24% WPI rating for diplopia.
30If the remaining Criterion 6 ratings are accepted at face value, the following calculation result from applying the combined values chart on p. 322 of the Guides:
Impairment
WPI Rating
Post-Concussive Syndrome
9%
Vestibular Impairment
5%
Visual Impairment
15%
Neck
5%
Thoracic
5%
Low Back
5%
Left Knee
2%
Right Knee
2%
Total WPI Rating for Criterion 6:
39%
31For the mental or behavioural impairment rating, the applicant relies on the 20% WPI from the undated Catastrophic Psychiatric Assessment Report by Dr. Shahzad Shahmalak, psychiatrist.
32Dr. Shahmalak rated the applicant as having 15% impairment in the Global Assessment of Functioning (GAF), a 40% impairment in the Psychiatric Impairment Rating Scale (PIRS), and a 20% impairment in the Brief Psychiatric Rating Scale (BPRS). Using the method in the Guides, 6th edition, the middle score becomes the psychological impairment rating for Criterion 7. In this case, the rating is 20% WPI as derived from the BPRS rating.
33The respondent submits that Dr. Shahmalak’s PIRS ratings are inconsistent with the evidence of the applicant’s functional abilities.
34I agree with the respondent. Dr. Shamalak rated the applicant as having a moderate impairment in Self-Care, Personal Hygiene, and Activities of Daily Living. This level of impairment is described as follows:
Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family members or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.
35In testimony, Dr. Shahmalak agreed that there is no evidence which shows that the applicant cannot live independently. He further explained that his moderate impairment rating is based on her being a high functioning person before the accident who could no longer do things post-accident like maintain a job, talking to clients, socializing, and putting on make-up.
36Section 14.6c of the Guides, 6th edition states that scoring for the PIRS is based on Tables 14-11 to 14-16. Table 14-11 provides descriptions of five levels of impairment for Self-Care, Personal Hygiene, and Activities of Daily Living. Dr. Shahmalak did not reference these descriptions of impairment levels. Instead, he arrived at a moderate impairment rating by contrasting various aspects of the applicant’s pre- and post-accident functioning, some of which are unrelated to self-care, hygiene, and the activities of daily living. Consequently, I give little weight to his rating as his method is inconsistent with the instructions in the Guides, 6th edition.
37According to Dr. Shahamalak’s report, the applicant regularly performs tasks such as bathing, self-grooming, dressing, and undressing, feeding, and toileting. Additionally, he notes that the applicant does not groom herself and shower as frequently as she did before the accident. In my view, this is consistent with the following description of a mild impairment:
Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-out food.
38Consequently, I find that she has a mild impairment in Self-Care, Personal Hygiene, and Activities of Daily Living.
39Dr. Shahmalak rated the applicant as having a severe impairment in Role Functioning, Social and Recreational Activities. Table 14-12 describes this impairment level as:
Never leaves place of residence. Tolerates the company of family member or close friend but will go to a different room or place when others come to visit family or flat mate/roommate.
40In testimony, Dr. Shahmalak agreed that there is no evidence which shows that the applicant never leaves her place of residence. He also testified that he gave a severe impairment rating based on the quality of the applicant’s social interactions which are impacted by her edginess, irritability, crying, and anxiousness. I agree that consideration of the quality of social interaction results in a more contextual and nuanced understanding of the applicant’s impairment. However, such factors must be tied to the description of impairment levels in Table 14-12. “Never leaves place of residence” describes an extreme type of social isolation that does not apply to the applicant. The applicant testified that since the accident she has visited friends in Barrie and goes out with them to different restaurants, although these interactions are less frequent since the accident. She also visits the nail salon with her mother and takes her daughter to the park where she says “Hi” to the other parents.
41The applicant testified that her social and recreational interactions decreased since the accident. Her testimony also shows that she is more reserved and not fully engaged in the few social outings that she does attend and leaves early. This behaviour is consistent with a mild impairment, which is described as follows:
Occasionally goes out to such events without needing a support person but does not become actively involved (e.g., dancing, cheering favorite team).
42As such, I find that she has a mild impairment in Role Functioning, Social and Recreational Activities.
43Dr. Shahmalak rated the applicant as having a severe impairment in Interpersonal Relationships. This impairment level is described as follows:
Unable to form or sustain long term relationships. Pre-existing relationships ended (e.g., lost partner, close friends). Unable to care for dependents (e.g., own children, elderly parent).
44None of these factors apply to the applicant. Since the accident the applicant has gotten married and remained in that relationship. She is also the caregiver of her infant daughter who was born in 2021.
45The applicant testified that her relationship with her husband is strained because of their arguments. She described their relationship as being more like “roommates” than husband and wife. These circumstances cannot be rated as a moderate impairment because that impairment level requires evidence of periods of separation, domestic violence, or periods where community services looks after dependant children. Again, none of these factors apply. The applicant’s circumstances are more consistent with a mild impairment which is described as, “Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.” Consequently, I find that she has a mild impairment in interpersonal relationships.
46Dr. Shahmalak rated the applicant as having a severe impairment in Travel which is described as “Finds it extremely uncomfortable to leave own residence even with trusted person.” This does not apply to the applicant. She attends her and her daughter’s appointments on her own. She has also travelled to assessments to Toronto, which requires a 45 minute to one hour drive to reach her destination. In my view, she has a mild impairment which is described as, “Can travel without support person but only in a familiar area such as local shops or a neighbor.”
47Once these four new scores are considered, the applicant’s PIRS ratings become 2, 2, 2, 2, 4, 4. The middle two scores add up to four and this results in a PIRS score of 10%.
48If the remainder of Dr. Shahmalak’s ratings are accepted at face value, the applicant cannot be found to be catastrophically impaired under Criterion 7. Her psychological impairment rating becomes 15% WPI. When added to the 39% impairment rating from Criterion 6, her WPI rating under the combined values chart for Criterion 7 is 48%. For this reason, I find that she is not catastrophically impaired under Criterion 7.
Criterion 8
49A catastrophic impairment under Criterion 8 results when an insured person sustains three of more class 4 impairments (marked impairments) or one or more class 5 impairments (extreme impairments) in an accident pursuant to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (the “Guides”) due to a mental or behavioural disorder. The four areas of function in Criterion 8 are activities of daily living (“ADL”), social functioning, concentration, persistence and pace (“CPP”), and adaptation.
50I note that an assessment under Criterion 8 involves a different framework and different descriptions of impairment levels than what is found in Criterion 7.
Level of Impairment
51Page 301 of the Guides sets out the five levels of impairment, ranging from a Class 1 No Impairment to a Class 5 Extreme Impairment, as noted in the chart below:
Area or Aspect of Functioning
Class 1: NO Impairment
Class 2: MILD Impairment
Class 3: MODERATE Impairment
Class 4: MARKED Impairment
Class 5: EXTREME Impairment
Activities of Daily Living
No impairment is noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some, but not all useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning
Social Functioning
Concentration, Persistence and Pace
Adaption
Activities of Daily Living (ADL)
52This area of functioning evaluates a person’s ability to engage in activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities.
53The applicant relies on Dr. Shahmalak’s undated Catastrophic Psychiatric Assessment Report and his Psychiatric Addendum, dated December 19, 2023. He diagnosed the applicant with a major depressive disorder, somatic symptom disorder, port-traumatic stress disorder, generalized anxiety disorder – severe, and vehicular anxiety which he attributes to the accident.
54The respondent relies on the Psychology Examination for the Determination of Catastrophic Impairment report, dated May 25, 2023, by Dr. Natasha Williams, psychologist. She diagnosed the applicant with major depressive disorder, somatic symptom disorder, and specific phobia – situational in-vehicle as driver or passenger. She also states that it is reasonable to find that the accident had a material contribution to these psychological symptoms.
55Dr. Shahmalak and Dr. Williams agree that the applicant sustained mental and behavioural disorders as a result of the accident. They agree that the accident caused the applicant’s major depressive disorder and somatic symptom disorder.
56In Dr. Shahmalak’s report, the applicant described her typical day as taking care of her newborn daughter, going to appointments, and cooking. She also reported to him that she has difficulty engaging in continuous physical activity and prefers to complete tasks when she has a burst of energy. Her depression effects her ability to complete the ADL in a timely fashion. According to Dr. Shahmalak, the applicant’s ability to complete tasks is also affected by her somatic pain experience and anxiety. He notes the following:
The applicant regularly bathes, grooms herself, dresses and undresses, feeds and toilets herself. However, she grooms and showers less frequently than before the accident.
Independently uses phone and computer.
Administers medications independently.
She no longer manages finances, this is now done by her husband.
She prepares her own meals and also cooks with her husband.
Cleans her house with her husband, however her home is messier than before the accident.
Drives independently.
Has difficulty and feels “overwhelmed” by taking care of her baby, which is why her mother helps her out.
Libido is decreased.
Difficulties sleeping, getting to sleep, and awaking during sleep.
No longer engages in leisure activities.
57Dr. Shahmalak determined that the applicant’s post-accident decrease in function results in a Class 3, Moderate impairment in the ADL.
58Dr. Williams also rated the applicant as having a Class 3, Moderate impairment in the activities of daily living. She notes that the applicant shares the caregiving duties for her infant daughter with her mother and spouse. The applicant requires more time and pacing to complete personal care tasks. Sleep disturbances resulted in lethargy and fatigue. As well, the applicant drives but experiences in-vehicle anxiety.
59At the hearing, the applicant testified that she occasionally goes out with friends to restaurants, and as such, appears to have resumed some leisure activity. Even so, the ongoing limitations in other aspects of the ADL are enough, in my view, to show that she has a Class 3, Moderate impairment in the ADL.
Social Functioning
60Social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with others. This includes the ability to get along with family members, friends, neighbours, grocery clerks, landlords, and other members of the public.
61Dr. Shahmalak notes that the applicant is less socially active than before the accident, and that she feels that socializing with others is a chore. If her husband’s friends and family visit, she goes into her room. Her relationship with her husband is strained. She also expressed to Dr. Shamalak that she has difficulty relating with others. Dr. Shahmalak also noted that the applicant communicated effectively and was polite with him and his assistant but did notice an impairment in affect regulation. Based on this information, he rated the applicant as having a Class 4, Marked impairment in social functioning.
62Dr. Williams states that the applicant has lost some friendships since the accident but continues to maintain a few friendships with infrequent contact. She also noted that the applicant’s familial relationships are strained, but that the applicant was cooperative and appropriately mannered during the assessment. She rated the applicant as having a Class 3, Moderate impairment in social functioning.
63I note that the applicant appears to have communicated effectively and acted appropriately with all the assessors, including Ms. Kitty Shum, occupational therapist, as noted in her insurer examination (IE), dated May 25, 2023. I also note that the applicant exhibited a flat effect when she testified. However, her ability to communicate remained intact during her lengthy testimony. She also described occasionally calling back friends to talk, occasionally going out to restaurants, going to have her nails done on her own or with her mother, and also saying “hello” to the parents of other children at the park where she takes her daughter. As such, her ability to socialize decreased significantly after the accident, and her psychological impairments added strain to her marriage. However, her ability to communicate and behave appropriately with people outside the home appears to have been minimally impacted by her psychological symptoms. For these reasons, I find that her impairment levels are compatible with some, but not all useful functioning. Consequently, I also find that she has a Class 3, Moderate impairment in social function.
Concentration, Persistence and Pace (CPP) and Adaptation
64CPP refers to the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings. In activities of daily living, concentration may be reflected in the ability to complete everyday household tasks.
65Adaptation is the functional ability to adapt to stressful situations. When faced with such circumstances, an individual may withdraw or experience an exacerbation of signs and symptoms of a mental disorder.
66The applicant does not submit that she has a Class 5 Extreme impairment in any areas of function. Consequently, she has provided me with no basis to find that she has an extreme impairment in CPP or adaptation.
67Having found that the applicant has two moderate impairments and no extreme impairments, I further find that she is not catastrophically impaired under Criterion 8.
68To 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.
Psychological services
69The applicant submitted a treatment plan, dated April 5, 2021, to the respondent for psychological services in the amount of $2,992.95. The applicant submits that she is entitled to denied portion of $448.83 for a progress report which, in her view, is reasonable because it would provide information missing in other reports.
70The respondent submits that the denied amount of $448.83 relates to the hourly rate of the service being provided. It argues that the higher hourly rate has not been properly justified by the applicant.
71I note that the respondent’s denial letter, dated April 20, 2021, clearly states that the denied amount of $448.83 is for a progress report. An additional $50.39 for a documentation fee was also denied, but the applicant is not disputing this amount.
72The applicant has not explained the goals of the progress report, nor how these goals would be met. Part 9 of the Treatment Plan lists the goals of symptom reduction and improvement with day-to-day tasks. However, the plan provides no insight on how the progress report is linked to these goals. As well, the applicant made no submissions on whether the cost of the progress report is reasonable. As such, I find that the applicant is not entitled to the denied amount of $448.83 for a progress report because she has not established, on a balance of probabilities, that this amount is reasonable and necessary.
Catastrophic impairment assessment
73The respondent’s denial letter dated April 23, 2021, states that the treatment plan dated April 7, 2021, in the amount of $30,910.00 was partially approved. The denied amount of $14,690.00 was for various catastrophic assessments and report writing.
74The applicant notes that one of the denied assessments was for a psychiatric catastrophic assessment. This assessment was denied because the insurer decided that a psychology assessment was more appropriate. The applicant submits that it is inappropriate for the respondent to chose assessors for the applicant.
75The respondent submits that assessments were denied in accordance with 25(5)(a) of the Schedule that limits the payment of each assessment to no more than $2,000.00 plus taxes.
76I agree with the applicant that the respondent cannot choose assessors for her. Even so, she made no submissions on why any of the disputed assessments are reasonable and necessary. Consequently, I find that she has not established, on a balance of probabilities, that she is entitled to the denied assessments.
Interest
77Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, I find that the applicant is not entitled to interest.
Award
78The applicant seeks an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
79The applicant made no submissions on whether the respondent unreasonably withheld or delayed the payment of benefits. Consequently, there is no basis to find that the respondent is liable to pay an award.
Costs
80Under Rule 19 of the Licence Appeal Tribunal Rules (the “Rules”), the respondent may request costs if it believes that the applicant acted unreasonably, frivolously, vexatiously, or in bad faith.
81Under 19.5 of the Rules, I must consider all relevant factors including:
i. the seriousness of the misconduct;
ii. whether the conduct was in breach of a direction or order issued by the Tribunal;
iii. whether or not a party's behaviour interfered with the Tribunal's ability to carry out a fair, efficient, and effective process;
iv. prejudice to other parties;
v. the potential impact an order for costs would have on individuals accessing the Tribunal system.
82The applicant withdrew the issue of impairment under Criterion 4 at the start of the hearing without prior warning. The respondent submits that it made significant efforts to address Criterion 4 and seeks costs to be compensated for all of their preparation. The respondent also submits that it was prejudiced by the late withdrawal.
83The applicant submits that litigating Criterion 4 was untenable because it would create an unwieldy proceeding. Therefore, she decided to withdraw this issue, which is her right to do.
84The applicant has stated why she chose to not litigate Criterion 4 but provided no reasons for the late withdrawal of this issue. As such, the late withdrawal is unreasonable as there is no explanation for the timing of this decision. Even so, the withdrawal of Criterion 4 did not impact negatively on the Tribunal’s ability to adjudicate this case. The respondent says it was prejudiced by the late withdrawal of this issue but did not explain how it was prejudiced. The respondent did explain that it spent time preparing to litigate Criterion 4. However, it is not unusual for entire matters to be withdrawn on the day of the hearing, despite the enormous amount of preparation made by the parties and the Tribunal for the hearing. This is a normal part of the litigation process. The respondent has not explained why this case is somehow different and merits an award of costs. As such, I am not satisfied that cost should be awarded to the respondent.
ORDER
85The applicant is not catastrophically impaired.
86The applicant is not entitled to $448.83 for psychological services.
87The applicant is not entitled to $14,690.00 for Catastrophic Impairment Assessments.
88The respondent is not liable to pay an award.
89The applicant is not entitled to interest.
90The respondent is not entitled to costs.
Released: December 10, 2024
Harry Adamidis
Adjudicator