Citation: Abdul-Hussein v. Economical Mutual Insurance Company, 2024 ONLAT 23-002669/AABS

Licence Appeal Tribunal File Number: 23-002669/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:

Jawad Abdul-Hussein

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Amar Mohammed

APPEARANCES:

For the Applicant:

Frank McNally, Counsel

Rebecca Duplantie, Counsel

For the Respondent:

Hermina Nuric, Counsel

Court Reporter:

Conner McTague

Heard by Videoconference:

June 10-14, 17-18, 2024

OVERVIEW

1Jawad Abdul-Hussein, the applicant, was involved in an automobile accident on January 14, 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 the respondent, Economical Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Has the applicant sustained a catastrophic impairment as defined by the Schedule under section 3.1(1)8?

ii. Is the applicant entitled to an income replacement benefit in the amount of $185.00 per week from December 4, 2022 to date and ongoing?

iii. Is the applicant entitled to $5,748.32 for occupational therapy services, proposed by Ferland and Associates Rehabilitation Inc. in a treatment plan dated January 26, 2023?

iv. Is the applicant entitled to attendant care benefits in the amount of $1,291.29 per month from November 15, 2021 to date and ongoing?

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?

3At the hearing, the applicant withdrew issues 3 through 5 as listed in the Case Conference Report and Order. The applicant amended the attendant care benefit amount sought to $1,291.29 per month.

RESULT

4The applicant has not sustained a catastrophic impairment as defined by the Schedule under section 3.1(1)8.

5The applicant is entitled to an income replacement benefit in the amount of $185.00 per week from December 4, 2022 to date.

6The applicant is not entitled to $5,748.32 for occupational therapy services, proposed by Ferland and Associates Rehabilitation Inc. in a treatment plan dated January 26, 2023.

7The applicant is not entitled to attendant care benefits in the amount of $1,291.29 per month from November 15, 2021 to date.

8The respondent is not liable to pay an award under s. 10 of Reg. 664.

9The applicant is entitled to interest on any overdue payment of benefits.

ANALYSIS

Catastrophic impairment as defined by the Schedule in section 3.1(1)8

10I find that the applicant is not catastrophically impaired (“CAT”) as defined in the Schedule under section 3.1(1)8 (“Criterion 8”).

11Criterion 8 relies on the American Medical Associations’ Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”). The Guides set out four functional domains and the levels of impairment as illustrated 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

Adaptation (Deterioration in a work-like setting)

12Under Criterion 8, the applicant must prove, on a balance of probabilities, that as a result of the accident he suffers from a 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. The 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.

13The applicant’s position is that he has Class 4 impairments in all four domains. He argues that his impairment levels significantly impede useful functioning in all four domains.

14The respondent argues that the applicant’s impairment levels are not Class 4 impairments. Rather, they are compatible with some, but not all, useful functioning defined as Class 3 or a moderate impairment in all four domains. The Guides note that a marked or Class 4 limitation in two or more domains would be likely to preclude performing complex tasks without special support or assistance, such as that provided in a sheltered environment.

Activities of daily living

15On a balance of probabilities, the applicant does not meet the definition of a Class 4 impairment in the domain of activities of daily living, as a result of the accident.

16For activities of daily living, the Guides specify what needs to be considered:

Activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitations in these activities should be related to the mental disorder rather than to such factors as lack of money or lack of transportation. In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction.

What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

17Dr. Bobbie Ross’ March 31, 2022 psychiatric report recognizes that the ratings provided under Criterion 8 are established by rating an individual’s impairments. However, because the report goes on to rate the applicant’s diagnoses rather than the applicant’s impairments, I give the ratings in the report little weight. For example, the introductory paragraphs of the Criterion 8 section states that Dr. Ross is rating the applicant’s condition, namely a chronic post-concussion syndrome diagnosis. While this is noted in the introductory paragraphs of the Criterion 8 portion of the report, it is confirmed that Dr. Ross is rating the applicant’s diagnoses in the subsequent analysis of the applicant’s activities of daily living.

18Dr. Ross states the applicant would not be capable of living independently without direct supervision as a result of the combination of the applicant’s diagnoses and lists them to include the following: post-concussion syndrome, major neuro-cognitive disorder, chronic pain, depressive disorder, anxiety disorder, and posttraumatic stress disorder. Dr. Ross concludes with a focus on the applicant’s diagnoses by stating: “When there is a diagnosis of major neurocognitive disorder, it is not expected that an affected individual could live independently without support.”

19Dr. Ross’ ratings are further weakened because the report makes a general conclusion regarding the applicant’s activities of daily living without engaging in a Criterion 8 analysis of the applicant’s impairments that would assist me. For example, it would assist me to know Dr. Ross’ opinion, from a Criterion 8 perspective, which activities are limited, how they are limited, or to what degree, as it relates to the rating being provided. Since the report instead establishes ratings on the basis of diagnoses rather than impairment I must look to other evidence for my analysis, with little weight given to Dr. Ross’ ratings.

20It is necessary to compare the applicant’s pre-accident and post-accident life to determine to what extent any accident-related impairments affect his ability to function in the applicant’s activities of daily living. The psychiatric report of Dr. Anil Joseph dated October 31, 2022 is given more weight because it analyses the applicant’s specific activities of daily living when providing a Criterion 8 rating. Dr. Joseph’s report concludes that the applicant is best rated as having a Class 3 or moderate impairment that is compatible with some but not all useful functioning in the applicant’s activities of daily living. I agree for the reasons that follow.

21The applicant was 19 when involved in the subject accident, in January of 2018, and has lived at home with family pre and post-accident. The applicant’s evidence regarding his life prior to the accident shows he was active and worked while in high school. He worked at a grocery store produce section when he turned 16, then for a few months he worked at a pizzeria and at his father’s barber shop. Dr. Bobbie Ross, in his psychiatric report dated March 31, 2022, described this time at the pizzeria and the barbershop to include learning about business practices and getting business mentorship. However, the applicant’s testimony focused on his time at the barbershop taking phone calls, sweeping or cleaning, and inviting friends over so he could practice cutting their hair. His testimony about his time at the pizzeria was that he was a pizza delivery driver, and he enjoyed it because it was very social. While working at this pizzeria, the applicant also learned how to take calls, learned about cashier responsibilities, and learned to make pizza.

22The applicant testified that he played AAA hockey for the Senators until he was 17. After graduating from high school, he did not continue his studies, had stopped playing AAA hockey, and had ended his relationship with his high school girlfriend. In February 2017, the applicant, together with his father, started a pizza and Greek food restaurant. Dr. Bobbie Ross’s report states that the business was reported to be going well and that the applicant had leased a vehicle with the money earned from this restaurant. However, for clarity, testimony at the hearing and the income replacement benefit report dated April 11, 2022 by ADS Forensics Inc. confirms that the business was losing money since it opened until it ceased operating shortly after the accident.

23At the time of the accident, the applicant’s typical workdays would be Monday through Saturday from 11:00 AM to between midnight and 1:00 AM. He states he enjoyed it and describes this as part of his day-to-day social life because he would make food for his friends when they would visit, and he enjoyed when people from the neighborhood would visit to greet him. The applicant’s inclination to enjoy working in social settings was apparent through his testimony about his time at his father’s barbershop, both before and after the accident, his time as a delivery driver at a pizzeria, and his time self-employed at the restaurant owned together with his father.

24The evidence largely agrees with Dr. Joseph’s analysis of the applicant’s activities of daily living. Prior to the accident, while the applicant was working at his restaurant, the applicant’s evidence is that he used to shower every day but now only showers every other day due to low motivation and depressive symptoms. Similarly, Dr. Ross notes the applicant stating: “he has a lot of problems getting out of bed each day if he does not have an appointment to attend”. Based on the evidence, the applicant’s motivation to complete self hygiene tasks like showering is in part correlated to his day-to-day schedule and whether or not he is required to attend appointments.

25Although the applicant’s activities of daily living pre-accident revolved around his 13-to-14-hour long workdays, six days a week, this is not a factor in the applicant’s post-accident activities of daily living. He has not returned to studying or to work since the accident. The applicant had a single unsuccessful attempt to return to work at his restaurant in 2018 for approximately 30 minutes, within the first week after the accident.

26He was not responsible for any housekeeping or home maintenance prior to the accident but would assist in taking out the garbage and recycling and assisted in some outdoor maintenance tasks. He no longer assists in these activities due to depressive symptoms and pain. For example, while the applicant used to help his father with shovelling snow prior to the accident, he no longer assists in this activity and his brother helps instead.

27His mother was and remains responsible for family meals. While the applicant used to prepare simple meals and snacks for himself, he no longer engages in this because he may leave a stove or toaster on which he has done in the past. His father testified that the applicant’s mother told the applicant not to touch anything in the kitchen, so he no longer tries to engage with meal preparation, beyond making a bagel. Dr. Ross notes the applicant “often lacks the motivation to make breakfast for himself.” Dr. Joseph notes from Mr. Dan Gauthier’s situational assessment report dated October 31, 2022 that the applicant was observed to prepare eggs with peppers, mushrooms, and tomatoes appropriately, choosing the correct temperature, monitoring it, and turning the burner off when finished. The situational assessment report and testimony suggests that while the applicant originally set out to make an omelet, it turned into scrambled eggs, so the tasks should not be viewed as successfully completed. I do not find this position persuasive because there is no medical opinion confirming the applicant’s attempt at making an omelet which resulted instead in scrambled eggs was caused by an impairment due to a mental or behavioural disorder.

28The applicant’s evidence is that he does not manage his own finances and requires help using his smartphone. In cross-examination, the applicant provided context on this point in response to being questioned about his mother helping him using his phone and it was clarified that this was as a result of sometimes forgetting to call or text people back. The respondent argues the applicant was not managing his finances prior to the accident so it is a moot point that he does not manage his finances now. It is my view that the evidence supports that the applicant’s father and an accountant were managing the business financials and not the applicant. While the applicant’s parents remain responsible for making payments for his car insurance and cell phone bill, surveillance shows the applicant both accepting and making payments successfully in-person. For example, the applicant was observed accepting payment from a customer at his father’s barbershop. The applicant was also observed independently visiting a fast-food restaurant, ordering food and paying for his order and then collecting his take-out meal. According to testimony from the applicant and corroborated by his father, the applicant is able to independently take cash from home, deposit the cash in order to have it available for use online and then he is able to log into accounts online and move those funds around and use them. This contradicts the applicant’s statements to occupational therapist Mr. Gauthier that he is too confused to be able to independently deposit the income replacement benefit cheques sent to him by the respondent. The applicant’s testimony at the hearing regarding impairments related to depositing funds focuses on his struggle to make deposits on time. However, the applicant does not offer any documentary evidence to corroborate late deposits or payments, as a result of a mental or behavioural disorder. The applicant testified he has made mistakes at his father’s barbershop when dealing with payments, specifically an instance of miscalculating change for a customer and an instance of forgetting to give a barber the tips owed to him. I find that these impairments are in accordance with the rating provided by Dr. Joseph.

29Regarding his social and recreational activities as part of his daily living, he testified that while he is encouraged by an occupational therapist to visit his father’s barbershop four days a week for four hours per visit, he still attends three times a week to socialise, interact and to get out of the house. Surveillance of the applicant shows him attending the barbershop upwards of ten hours each day on consecutive days, interacting appropriately with customers and staff. He states that pre-accident he would attend the gym in the morning prior to starting work at 11:00 AM and also on Sundays, his weekly day off. He continued attending the gym and swimming post-accident including taking group classes. However, at the time of the hearing he no longer maintains a gym membership.

30Regarding his ability to travel, he drives independently and regularly, during the day and during the night, and does not find it difficult if he has to drive other vehicles than his own. He reports continued anxiety as a driver and a passenger as noted by Dr. Joseph in the Criterion 8 analysis. The applicant wants me to consider that he suffered panic attacks while driving and on one instance he needed to attend a hospital as a result. The respondent points me to the emergency department note from that visit dated October 22, 2021 by Dr. Peter Graves, an emergency physician, stating the panic attack was marijuana induced. However, in the applicant’s testimony he is dismissive of this medical opinion and to what extent his previous marijuana use was a contributory factor. The applicant testified he is able to navigate independently. He went on vacation to Mexico and Vancouver and I did not hear evidence of any impairments in his ability to travel on these two trips. He was able to go on the trips with his family, sit on the beach to nap and relax. He tried swimming and would go for walks. At other times, he would stay in, watch hockey games or Netflix, and he would ask his brother to bring food for him when he was hungry.

31The applicant and his father testified that the applicant’s interests and motivation are reduced post-accident. It is clear from the evidence that the applicant had a very structured schedule pre-accident which included attending his high-school classes and his organized hockey activities, more recently working at his restaurant where he worked 13 to 14 hours a day, six days a week. Post-accident, the applicant struggles with motivation and to create and maintain a regular schedule, however, he attends appointments when required to do so. Dr. Joseph accounts for this noting the applicant’s report that the frequency of certain daily tasks completed depends on the state of his mental health.” Dr. Ross’ report supports this, noting that the applicant lacks motivation to shower on days he is not required to attend appointments. Dr. Joseph concludes the applicant’s mental health symptoms often prevent him from initiating or sustaining participation in his activities of daily living and provides a Class 3 or moderate rating. While specific instances of impairment recounted through expert and non-expert testimony help me understand the applicant’s struggles, the Guides suggest looking at the individual’s overall situation, and in this context the applicant’s impairments are in accordance with the rating provided by Dr. Joseph.

32For the reasons above, I find that the applicant’s impairments in his activities of daily living are compatible with some but not all useful functioning, meeting the definition of a Class 3 or moderate impairment due to a mental or behavioural disorder.

Social Functioning

33For social functioning, the Guides specify what needs to be considered.

Social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbors, grocery clerks, land lords, 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. It is helpful to give specific examples illustrating the impaired functioning.

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. Social functioning in work situations may involve interactions with the public, responding to persons in authority such as supervisors, or being part of a team.

34Dr. Bobbie Ross’ March 31, 2022 psychiatric report states the applicant’s impairment in social functioning meets the definition of a Class 4 or marked impairment. I give this analysis of the applicant’s social functioning and the class 4 rating little weight because it does not engage in any analysis of the social functioning domain from a Criterion 8 perspective as it would relate to the rating. Instead, the report makes a conclusion that the applicant has largely withdrawn from the type of social life that would be expected for his age. The single sentence contained in the social functioning analysis does not state what Dr. Ross’s expectations are about the type of social life the applicant should lead based on his age. This opinion is weakened because I do not have any analysis to assist me in how this conclusion is engaging with the factors outlined in the Guides. As a result, I give Dr. Ross’ rating in this domain little weight.

35Dr. Ross and Dr. Joseph disagreed on the severity of the applicant’s impairment in social functioning. Dr. Joseph rated the applicant with a Class 3 or moderate impairment. I give Dr. Joseph’s report more weight because it engages with an analysis in this domain before making a conclusion. In my view, the applicant’s capacity to interact is both appropriate and effective with the general public, at the gym including in group classes, or the fast-food restaurant he was observed visiting and with medical professionals and staff at medical appointments. Mr. Dan Gauthier notes, when the applicant was asked if he enjoyed a trip to Vancouver, the applicant responded: “yes and no”. It is not clear what parts of the trip he enjoyed and did not enjoy or the reasons behind this. The experts did not comment on how this relates to social functioning under Criterion 8. Mr. Dan Gauthier reports the applicant was thankful to him for listening and engaging with him. This, together with observations made of the applicant engaging with people at his father’s barbershop and at a fast-food restaurant, shows the applicant’s social consideration and awareness.

36Mr. Dan Gauthier noted the applicant does not want to meet with friends and although they reach out to him, he does not always respond. At times, he will cancel plans or forget. The applicant’s evidence is that he enjoyed the social aspect of running a business pre-accident. He continues to attend his father’s barbershop and hangs out in the break room three or four times a week but there are times he may go less often or not at all. The applicant testified that his friends reach out to him post-accident and at times he does not answer back so he is not connected with them the way he was pre-accident. He has socialized with his friends after the accident but leaves the social gatherings earlier than others because he prefers calmer social activities. In contrast to this preference for calm social activities, he describes his pre-accident social group’s activities as being “hyper” and it is clear he is not interested in those activities or environments now. In that respect, he now socializes with an older family friend once or twice a week, his cousin who is of similar age to the applicant, and sometimes also his cousin’s friend, once a week. He engages in going to restaurants, going for drives or for walks, and watches UFC or hockey games. In my view, the applicant’s avoidance or early exit from “hyper” social activities relates primarily to other areas of function as a result of becoming overwhelmed. When the applicant describes leaving early, he is describing impairments or deterioration in adaptation and in concentration, persistence and pace resulting from the busy and fast paced environment or setting. Withdrawal and isolation can be signs of impairment in social functioning, however, in the case of the applicant they do not demonstrate a marked impairment in the applicant’s capacity to interact appropriately and communicate effectively with his friends.

37The applicant’s evidence to establish impaired social functioning recounted difficulties in his relationship with his parents at home that is a regular concern. Through testimony, I heard about an instance in which the applicant argued about wait times with a customer at his father’s barbershop. Otherwise, according to surveillance in which the applicant had back-to-back 10-hour or longer days at the barbershop, he was seen appropriately engaging and getting along with the barbershop staff and customers. The applicant successfully and independently visited a fast-food restaurant in-person, ordered food, paid for it and picked it up, engaging appropriately with the staff. He was able to recognize someone known to him from the barbershop at the fast-food restaurant while he was there and appropriately greeted and engaged with this person as observed through surveillance.

38The applicant’s friends continue to reach out to him and responded to the applicant’s post on his social media account in which he updated his picture. He maintains his access to the accounts on his phone but testified he is not as active on social media as he was pre-accident. When reviewing his social media posts at the hearing, the applicant testified that one of the responses under a picture he posted was a joke, which shows the applicant’s capacity to appreciate and recognize social context.

39While the applicant has social functioning impairments in some situations, such as with his parents at home, where the applicant has described talking to his father helps him and that he feels safe doing so. I find the evidence supports that the applicant’s capacity to interact appropriately and communicate effectively are in accordance with the rating provided by Dr. Joseph.

40For the reasons above, I find that the applicant’s impairments in his social functioning are compatible with some but not all useful functioning, meeting the definition of a Class 3 or moderate impairment due to a mental or behavioural disorder.

41For the reasons above, in the two domains of activities of daily living and social functioning, I accept Dr. Joseph’s ratings of Class 3 or moderate impairments. Since the applicant cannot establish the minimum of three Class 4 or marked impairment ratings required to meet the definition of CAT under Criterion 8, I do not need to consider the remaining two domains of concentration, persistence, and pace, or adaptation. I find that the applicant does not meet the definition of CAT under Criterion 8.

The applicant is entitled to an income replacement benefit in the amount of $185.00 per week from December 4, 2022 to date

42I find that the applicant is entitled to a post 104-week income replacement benefit (“IRB”) in the amount of $185.00 per week, to date, for the following reasons.

43To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience. The parties’ experts agree that the quantum, if payable, is $185.00 per week, being the amount paid to the applicant during the first 104 weeks after the accident.

44The respondent points to s. 58(2) of the Schedule which requires the applicant to make reasonable efforts to obtain or engage in employment or self-employment. The respondent concedes a s. 58 notice for a stoppage of benefits under this section was not given to the applicant. I find that there is no consequence provided for the applicant under this section of the Schedule unless the respondent had taken steps available to it after giving the applicant such notice. Since it is conceded that notice was not given by the respondent it is not necessary to apply s. 58(2) in my analysis of this dispute.

45The applicant refers me to Dr. Smith’s Independent Pain Medicine Assessment report dated May 1, 2023 and an addendum completed May 9, 2024. Dr. Smith opined in 2023 that the applicant would be unable to sustain any form of productive employment for the foreseeable future. I find that the applicant’s time spent at his father’s barbershop is mainly for socializing and getting out of the house and the applicant is not accountable or responsible for any productive work. In 2024, Dr. Smith opined after reviewing additional information and surveillance, that his opinions remained unchanged because the updated clinical records and surveillance reviewed do not show the applicant engaging in any productive work and the applicant continues to suffer from chronic pain in addition to his mental and behavioral impairments.

46I was offered evidence from Royal Ottawa Mental Health Centre where the applicant was being treated since a referral was made on May 20, 2021. On or about August 4, 2022, Dr. Amol Vaze, a psychiatrist at Royal Ottawa, opined that the applicant was being overtreated and over protected. Going on to opine that there was a possibility that the applicant was becoming increasingly comfortable in his sick role and that this was probably perpetuated by a number of professionals involved. This note also states that the psychiatric and psychological opinion is shared and was emphasized to the applicant regarding the applicant’s dependance on both his illness and the professionals he has access to. The note states moving forward the role of medications and therapy may be minimal. Dr. Joseph also cites this note referring to an adopted “sick role” in his report regarding IRB. However, a week later, the applicant’s father attended Royal Ottawa together with the applicant and shared his perspective on the applicant’s mental state and behavior over the prior 4-year period. It is clear from the note that the applicant’s father was meeting Dr. Vaze for the first time. After this meeting with the applicant’s father, Dr. Vaze opined that it was much less likely that the applicant was trapped in a “sick role” but that he still found the significant treatment resistance to a range of treatment extremely odd. However, I must consider more than just the applicant’s mental and behavioral state when assessing his ability to work.

47As it relates to the applicant’s ability to work, I give more weight to the applicant’s evidence that he cannot currently work because this opinion is shared by Dr. Smith’s Independent Pain Medicine Assessment, and by Dr. Docking, his family doctor, who has seen him intermittently since 2020 and regularly since 2021. Dr. Docking describes the applicant as genuine, someone looking for ways to get and feel better. Dr. Blackmore, a chiropractor completing an 80-minute functional abilities insurer examination on June 15, 2022 observed significant limitations in the applicant’s endurance. I also give more weight to the applicant’s evidence because Dr. Smith’s report engages with the applicant’s chronic pain finding that it limits the applicant from engaging in prolonged standing or walking. The respondent’s experts comment on the applicant’s physical injuries resulting from the accident and that 4 years have passed to conclude “his physical injuries would have fully healed long ago”. While the applicant’s complaints are mentioned there is not sufficient engagement with the applicant’s chronic pain. Dr. Smith opines the applicant has the following pain-related impairments prolonged walking, prolonged standing, repetitive bending/pushing/pulling, heavy lifting, higher axial impact physical activities (for example, running, jumping) and sustained or sudden extremes of cervical range of motion. I have also recognized in my Criterion 8 analysis that the applicant has provided evidence of impairments in concentration and adaptability. Dr. Smith relates at least some of the cognitive impairments suffered by the applicant to be related to chronic pain that are consistent with the applicant’s reported difficulties concentration, memory and fatiguability.

48There is some optimism in the medical record that the applicant may be able to work in the future as Dr. Smith opined in 2023: “A structured, slowly graduated and carefully monitored schedule is recommended with at most light tasks to determine [the applicant’s] endurance and tolerance for various demands and tasks, notably to help rebuild confidence in his new hopefulness.” Dr. Smith notes that the applicant made a single attempt to return to work for about 30 minutes at his restaurant. He notes that the applicant’s time spent and task engagement at his father’s barbershop is analogous to casual or noncommitted volunteer work and should not be seen as productive employment. He notes there is no payment or responsibility because the applicant is freely accommodated without any expectations placed on him. I agree that the applicant cannot be seen to have work-related responsibilities at his father’s barbershop nor is he required to attend.

49However, at this time, on a balance of probabilities, I find that the combination of mental and behavioral and physical impairments suffered by the applicant result in a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

50For the reasons above, I find that the applicant is entitled to a post 104-week income replacement benefit.

The applicant is not entitled to $5,748.32 for occupational therapy services or to attendant care benefits in the amount of $1,291.29 per month

51In submissions, it was put to me that the issue of whether the applicant is entitled to occupational therapy services and attendant care benefits is moot unless the applicant is determined to have a catastrophic impairment. I agree because the applicant’s available non-catastrophic impairment funding has been exhausted.

52Under the circumstances, as a result of finding that the applicant does not have a catastrophic impairment, there is no need to consider if the applicant is entitled to this treatment and assessment plan or the attendant care benefits claimed.

Interest

53I find that interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

54The applicant sought 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. I find that the applicant has not established he is entitled to an award.

55The 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. The applicant submits he should be entitled to an award because the respondent should have continued the income replacement benefit. Instead, the respondent stopped payment of this benefit despite the vocational report being done in a vacuum and the report does not consider medical barriers, leaving other assessors to address them. The applicant argues there was no critical analysis done by the assessors of the applicant’s medical barriers in context of the vocational report.

56This Tribunal has referred to insurer’s conduct that is inflexible, stubborn, immoderate or unyielding to warrant an award; as an example, if the insurer clearly went against the recommendations of its assessor that were in favour of the insured, then an award would be warranted, as found in 18-002994 v Aviva Insurance Canada, 2019 CanLII 76837 (ON LAT) at paragraph 22. The threshold for an award is high. I do not find it unreasonable that the vocational report deferred comment of medical barriers to medical experts. I also do not find that the respondent’s reliance on Dr. Joseph’s opinion to be unreasonable because he is not the first to opine: “There are no limitations or restrictions that are preventing him from returning to work. He has adopted a sick role and has not responded to various attempts to get him functioning.”

57For the above reasons, the respondent is not liable to pay an award.

PROCEDURAL ISSUES

Applicant’s request for a summons

58Prior to hearing evidence on the substantive issues in dispute we addressed the details of the schedule of witnesses. The applicant’s request for a summons of a witness was denied.

59The applicant raised an issue with the respondent’s updated list of witnesses. The applicant argued that it was unfair that the respondent’s final list of witnesses that included two doctors, a general practitioner, and a neurologist, were not being called to testify at the hearing. The applicant argued this meant the applicant will not have an opportunity to cross-examine them. The applicant did not obtain a summons for these witnesses, arguing that there was not enough time to comply with Rule 8 of the Licence Appeal Tribunal Rules (the “Rules”) which applies to this request. The applicant requested that I issue a summons for these two witnesses to provide him the opportunity to cross-examine them.

60The respondent argued, and I agree, that it could decide to call or not call witnesses at its own discretion. I denied the applicant’s request for the Tribunal to issue a summons for two witnesses. I considered that the applicant did not comply with Rule 8.2 and that this request before me was outside of the deadline for service which was no later than 10 days before this hearing.

61However, notice of a party’s intention to call or not call a witness is not a factor considered in adjudicating a request for summons. The applicant had from the date of the CCRO in which orders regarding the format of the hearing and the parties’ witnesses were made to seek a summons.

Applicant’s late-filed document

62On day 6 of 7 of the hearing, the applicant sought to rely on a document published by the Ontario Society of Occupational Therapists during cross- examination. The respondent objected on the basis that it was received in the morning, there was not enough time to review it or authenticate it and that it was being produced very late. The respondent further argued there was no good reason the applicant could not have produced the document within the production deadlines set out by the Tribunal.

63The applicant argued that the document should not need to be classified as evidence and referred to it as a standard document. Further, that since it was published by the Ontario Society of Occupational Therapists, the witness being cross examined, an expert occupational therapist, should be aware of the document. For this reason, the applicant did not think it was necessary to provide it earlier other than to provide a copy during questioning.

64I exercised my discretion to allow the applicant to rely on the late-disclosed document despite noncompliance with Rule 9 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure (“Common Rules”), which applies to the disclosure requirements on this application. Common Rule 9.4 states that parties may rely on documents or things with consent of the Tribunal even if there is non-compliance. In coming to this decision, I am also supported by section 15 of the Statutory Powers and Procedures Act. In my view, the document is relevant to at least one of the issues in dispute. The respondent was provided an opportunity to take a break after cross examination was over before proceeding to re-examine the expert. Although I directed the parties to make any necessary arguments about weight in relation to the document in their closing submissions, neither party addressed this in closing submissions, so I did not have any submissions to consider. The expert witness testified to being familiar with the document, Assessment of Attendant Care Needs, Form 1: A Resource for Reflective Practice, 2nd Edition, April 2011.

Respondent’s request to mark the document as a lettered exhibit

65The respondent objected to the document being marked as a numbered exhibit, arguing the content of the document could not be admitted for the truth of its contents because the respondent did not have enough time to authenticate the document. The respondent submitted the exhibit must be marked as a lettered exhibit. The applicant consented.

66The exhibit was marked as a lettered exhibit and was not made a numbered exhibit. This exhibit will remain in the Tribunal’s file solely for identification purposes so that the document can be identified at some point in the future, if necessary. The document does not form the evidence at this hearing. However, some portions of this lettered exhibit were read to the expert witness. Those portions that were read or put to a witness have been recorded as part of the transcript of this hearing. That forms part of the evidence at this hearing, subject to the answers from the witness to whom the questions were put.

ORDER

67For the reasons above, I find that:

i. The applicant does not meet the definition of catastrophic impairment.

ii. As the applicant’s funding has been exhausted, he is not entitled to an attendance care benefit or occupational therapy services.

iii. The applicant is entitled to an income replacement benefit in the amount of $185.00 per week from December 4, 2022 to date.

iv. The applicant is entitled to interest in accordance with section 51.

v. The applicant is not entitled to an award.