Rattan v. TD General Insurance Company, 2024 CanLII 126980

Citation: Rattan v. TD General Insurance Company, 2024 CanLII 126980

Licence Appeal Tribunal File Number: 23-013588/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:

Monica Rattan

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Timothy Porter

APPEARANCES:

For the Applicant: Alon Barda, Counsel

For the Respondent: Arfa Saeed, Counsel; Jennifer Kiss, Counsel

Court reporter: Jeff Brouse

HEARD: by Videoconference: October 28 - 31, 2024

OVERVIEW

1Monica Rattan, the applicant, was involved in an automobile accident on July 28, 2021, 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, Insurer, 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?

ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from July 28, 2021, to date and ongoing?

iii. Is the applicant entitled to $1,995.50 for Chiropractic Services, proposed by Omni Health Rehab, Anil Kaushal in a treatment plan/OCF-18 ("treatment plan") submitted November 1, 2021?

iv. Is the applicant entitled to the assessments proposed by Q Medical, as follows:

(i) $2,558.32 for a psychological services assessment, in a treatment plan submitted January 28, 2022?

(ii) $2,486.00 for an attendant care assessment, in a treatment plan submitted February 7, 2022?

(iii) $2,486.00 for a cognitive assessment, in a treatment plan submitted February 17, 2022?

(iv) $2,567.36 for a neurological assessment, in a treatment plan submitted March 21, 2022?

(v) $2,316.50 for a MRI assessment, in a treatment plan submitted March 21, 2022?

(vi) $792.08 for assistive devices submitted on March 18, 2024?

v. Is the applicant entitled to the assessments proposed by E Clinic United Healing, as follows:

(i) $3,710.00 for a psychotherapy session assessment, in a treatment plan submitted March 25, 2022?

(ii) $1,400.00 for a yoga session assessment, in a treatment plan submitted May 17, 2022?

(iii) $1,050.00 for a nutritional assessment, in a treatment plan submitted May 24, 2023?

(iv) $2,173.60 for a psychological services assessment, in a treatment plan submitted March 25, 2022?

(v) $3,639.23 for a social worker counselling treatment, in a treatment plan submitted November 30, 2022?

(vi) $4,549.23 for psychotherapy and social worker counselling in a treatment plan submitted August 29, 2022?

(vii) $1,981.40 for a chiropractic treatment assessment, in a treatment plan submitted December 27, 2023?

vi. Is the applicant entitled to the services proposed by iScope Concussion and Pain Clinic, as follows:

(i) $1,550.00 for Botox injections, in a treatment plan submitted January 4, 2022?

(ii) $2,443.96 for physiotherapy services in a treatment plan submitted August 19, 2022?

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

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

ix. Is the applicant entitled to costs pursuant to Rule 19 of the Tribunal's Common Rules of Practice and Procedure (the "Rules")

3At the beginning of the hearing, issue 2(ii) regarding income replacement benefits was withdrawn by the applicant.

Result

4I find that the applicant has sustained a catastrophic impairment as defined by the Schedule.

5I find that the applicant is entitled to the following treatment and assessment plans:

i. $1,550.00 for Botox injections, proposed by iScope Concussion and Pain Clinic in a plan submitted January 4, 2022.

ii. $2,486.00 for an attendant care assessment, proposed by Q Medical in a plan submitted February 7, 2022; and

iii. $4,549.23 for psychotherapy and social worker counselling, proposed by E Clinic United Healing in a plan submitted August 29, 2022.

6I find that the applicant is not entitled to the remaining treatment and assessment plans.

7The applicant is entitled to interest on overdue payment of benefits in accordance with s. 51 of the Schedule for the approved treatment and assessment plans.

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

9The applicant is not entitled to costs pursuant to Rule 19 of the Rules.

Procedural issue

10At the beginning of the hearing, the applicant submitted that costs be added to the issues in dispute pursuant to Rule 19.1 of the Rules.

ANALYSIS

Is the applicant catastrophically impaired?

11For the reasons that follow, I find that the applicant is catastrophically impaired as defined by the Schedule as a result of the July 28, 2021, accident.

12The applicant bears the onus to prove on a balance of probabilities that she is catastrophically impaired. Of particular relevance to the applicant, she must prove that, as a result of the accident, she has a Marked or Class 4 impairment in at least three of the four domains as outlined in the American Medical Association's Guide to the Evaluation of Permanent Impairment ("the Guides") 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. I find that based on the testimony of the applicant, her family members, and the medical evidence, that the applicant meets the test as set out in the Schedule.

13Section 3(1)(8) of the Schedule explores mental and behavioural impairments that are rated according to how seriously they affect a person's useful daily functioning, physical impairments have no bearing within these ratings. Chapter 14 of the Guides set out the four spheres of functioning and the classification of impairments as represented 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 ("ADLs")	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 ("CPP")
Adaptation (In a work-like setting)

14The applicant submits that she has suffered marked impairments in the domains of ADL; concentration, persistence, and pace; and adaptation as a direct result of the subject accident. The applicant relies on the clinical notes and records and testimony of family physician Dr. Gvozdic; the testimony of and catastrophic assessment and report by Dr. Gnam, psychiatrist; the testimony and report by Ms. Tracie Woods, occupational therapist ("OT"); the report by Ms. Ranya Ghatas, OT, and Mr. Justin Gilmour, OT, the collateral interviews by Ms. Revital Shuster, social worker; and the applicant's testimony.

15The respondent submits that the applicant has been impacted by the subject accident but that the functional impairments are mild to moderate, may be a continuation of previously diagnosed post-partum depression and relies on the assessment, report, and testimony of Dr. Jwely, psychiatrist; the report and testimony of Ms. Kelly Wendt, OT; and the CNRs of Dr. Gvozdic.

16I find that there is agreement between the psychiatric assessors that the functional impairment level experienced by the applicant in the sphere of social functioning is that of a moderate impairment. I accept these assessments and will therefore focus analysis on the other domains.

17The evidence before me shows that the applicant underwent a s. 25 catastrophic impairment determination multidisciplinary assessment by Dr. William Gnam, psychiatrist; Ms. Tracie Shaw, occupational therapist; Ms. Ranya Ghatas and Mr. Justin Gilmour, occupational therapists and was supported with collateral interviews by Ms. Revital Shuster, social worker. The assessments were conducted in April, May, and June 2023. The conclusion by Dr. Gnam provided the following ratings for the applicant in the four spheres of function:

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				Marked Impairment
Social Functioning			Moderate Impairment
Concentration, Persistence and Pace				Marked Impairment
Adaption (In a work-like setting)				Marked Impairment

I place significant weight on the report and testimony of Dr. Gnam. I find that he conducted a comprehensive assessment, he has detailed knowledge of the Guides and their application in the context of the Schedule, and he explored and explained the applicant's functional deficits in detail. I also find that Dr. Gnam conducted psychometric testing, and that the assessment encompassed two separate OT reports conducted by different OTs, as well as a series of collateral interviews held by a registered social worker with more than five family and friends. Dr. Gnam's diagnosis of the applicant includes Major Depressive Disorder, repeat episode, chronic moderate; panic disorder with agoraphobia; anxiety disorder not otherwise specified; general anxiety disorder; and pain disorder associated with both psychological factors and a general medical condition.

18The applicant also underwent a s. 44 catastrophic impairment determination multi-disciplinary assessment by Dr. Ahmed Jwely, psychiatrist and Ms. Kelly Wendt, OT. The report was authored by Dr. Ben Meikle, physiatrist. Dr. Jwely diagnosis of the applicant includes Chronic generalized anxiety disorder (moderate-severe); Chronic depression (mild-moderate); Chronic specific phobia (vehicle). Dr. Jwely provided the following ratings for the applicant in the four spheres of function:

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			Moderate Impairment
Social Functioning			Moderate Impairment
Concentration, Persistence and Pace		Mild Impairment
Adaption (In a work-like setting)			Moderate Impairment

I place less weight on the report of Dr. Jwely because I find that he does not follow the specific approach and process demanded by the Guides in Chapter 14. In particular, I find that he has not provided specific examples of the applicant's function against the domains to substantiate or elaborate on his opinion. Rather, I find that 'cut and paste' sections of Ms. Wendt's report are the only explanation of the rating provided in the report. In addition, I find that the executive summary by Dr. Meikle of the reports by Dr. Jwely and Ms. Wendt provides very little value to the criterion 8 assessment as it is written by a physical medicine specialist and physical functional deficits have no bearing on the application. Further, Dr. Meikle appears not to have seen or assessed the applicant. Finally, I place little weight on the report because during Dr. Jwely's testimony it became apparent that he had not reviewed or considered the report of Ms. Wendt prior to finalizing his opinion. I find that a review of the draft reports suggests that initially Ms. Shaw's findings were included in the report, and despite Ms. Wendt's assessment subsequently being added to the report, Dr. Jwely's ratings did not change. In addition, during his testimony, Dr. Jwely was unclear about which reports he had reviewed, indicating he was very busy and could not recall. I find, on balance, that this suggests that Dr. Jwely did not consider the OT assessments when determining his ratings, which I find makes his findings less persuasive.

What is the level of functional impairment in the domain of ADLs?

19According to the Guides, activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities 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.

20I find that, on a balance of probabilities, the applicant suffers from a Class 4 Marked Impairment of her ADLs.

21Dr. Gnam assesses that the applicant has sustained a Class 4 Marked Impairment in her ADLs, as a result of the accident. As noted above, I prefer the evidence of Dr. Gnam over the respondent's psychiatric assessor because he provides robust examples of pre- and post-accident functionality in this domain and coordinates a wide array of ADL examples to validate and detail how he reached the Marked Impairment rating. Dr. Gnam also provides context to his examples of ADL function by outlining the quality of the activities. Dr. Gnam assesses that the applicant had an overall significant loss of independence and sustainability in most daily living activities which he links primarily to the consequences of mental disorders which are a direct result of the subject accident.

22Dr. Jwely assesses that the applicant sustained a Class 3 Moderate impairment to her ADLs as a result of the accident. As also noted above, I am not persuaded by the evidence of Dr. Jwely because he does not provide any examples of pre- or post-accident functionality in this domain and has only provided a straight cut and paste of Ms. Wendt's report following his opinion on the rating level. Ms. Wendt reported on observations and self-reports from the applicant which included a review of the applicant's performance in a number of personal care tasks, concluding that the applicant has the physical ability to perform the required tasks but that she demonstrates reduced functioning from a behavioural perspective. I find that Dr. Jwely does not link his diagnosis, the observations of Ms. Wendt or any of the medical documentation listed as reviewed and how these impact his rating. I also find that there is an absence of context of the applicant's overall situation.

23I find that the applicant has remained consistent throughout the post accident period in reporting functional impairments that correspond with ADL and in reporting symptoms consistently to her family physician Dr. Gvozdic on August 3, 2021, August 9, 2021, August 31, 2021, September 4, 2021, November 18, 2021, January 31, 2022, May 17, 2022, June 11, 2022, October 27, 2022, April 4, 2023, and June 9, 2023. In addition to the consistency with her family doctor reporting, the applicant was consistent with all assessors in identifying her symptoms and the associated impacts on her ADL.

24Further, I find the applicant was reliable, clear and specific during testimony, providing detail regarding pre and post-accident functionality in ADL, outlining how: caregiving with her two sons is diminished post accident; how her eldest son's special needs specific caregiving has shifted from her to her husband post accident; how care, feeding and cleaning up after the families two dogs has shifted from her responsibility to her husband and some outsourcing; how laundry, meal planning/ prep and grocery shopping has shifted from her complete responsibility to that of her husband and outsourcing; how her showering, skin care, make-up application, hair styling, shaving and other personal hygiene tasks has diminished or completely curtailed and often requires prompting from her spouse for any follow through; and finally, how financial management has shifted from her leadership to her husband.

25I agree with the applicant's assessor Dr. Gnam who opines that the applicant's mental impairments adversely impact most aspects of ADL stating that her current agoraphobia, vulnerability to panic attacks, observed impairment in affect regulation and significant motivation impairment negatively impact the independence, sustainability, effectiveness, and appropriateness of her ADLs.

26Considering the above-noted considerations in light of the Guides, I find that the applicant has a Marked impairment in the domain of ADL.

What is the level of functional impairment in the domain of CPP?

27According to the Guides, the factors to consider under this domain are that concentration, persistence and pace is needed to perform many activities of daily living, including task completion. Task completion refers to the ability to sustain focussed attention long enough to permit the timely completion of tasks commonly found in activities of daily living or a work setting. Strengths and weaknesses in mental concentration may be described in terms of frequency of errors, the time it takes to complete the task and the extent to which assistance is required to complete the task.

28I find that the applicant suffered a Class 4 Marked Impairment in the domain of CPP, as a result of the accident.

29Once again, I am not persuaded by Dr. Jwely's assessment. In the area of CPP, Dr. Jwely quotes Ms. Wendt's report and opines that the applicant fits the criteria for a class 2 (mild) level of impairment. Ms. Wendt notes that the applicant had to re-read simple instructions several times and discontinued with the evaluation early on both days as her symptoms had elevated to the point that she could not attempt any further testing. With regard to maintaining attention and concentration for extended periods, the applicant was asked by Ms. Wendt to engage in a work-related assessment administration task and was able to sustain participation in the complex task for only seventeen minutes before reducing the brightness of the lighting in an effort to manage her symptoms. Dr. Jwely does not draw on the file review, does not indicate how his diagnosis aligns with his ratings and only quotes Ms. Wendt without demonstrating in any way how he has reached his conclusion.

30Dr. Gnam assesses that the applicant has a Class 4 Marked Impairment as a result of the accident. Again, I prefer the evidence of Dr. Gnam over the respondent's psychiatric assessor because he clearly outlines and delineates his and his co-assessors' observations, the applicant's self-reports, psychometric testing results and his diagnosis to present a coherent picture of the applicant's functional deficits in the domain of CPP. Dr. Gnam opines that the chronic pain, depression, sleep impairment and anxiety symptoms of the applicant have caused deficits in supervisory attentional capacities, working memory, executive function, and task persistence which combine to interfere with the cognitive functions required to complete work-like tasks.

31I find that Dr. Gnam's testimony was compelling as he drew from his report and anecdotally expanded on the example of the applicant's eldest son, who is diagnosed with cerebral palsy, and the shift in responsibility that has transpired since the subject accident. Prior to the accident the applicant was completely in-charge of the care and medical rehabilitative activities surrounding her eldest son's disability management, demonstrating the care of an engaged mother and the knowledge-based skill of an OT. Turning to the post-accident situation Dr. Gnam emphasised that not only has there been a change in roles for who is leading support of their son's care but that the number of care appointments has decreased as a result of the switch in leadership. Dr. Gnam highlighted the example of this shift as one illustration of many that demonstrate the applicant knows the right thing to do, but is incapable, due to a lack of energy and motivation.

32I find Dr. Gnam's report to be comprehensive in that he included multiple sources of information in the formulation of his opinion. Dr. Gnam draws on the OT report of Ms. Ghatas and Mr. Gilmour who conducted multiple group scenario assessments, where the applicant is provided with situational testing in the context of work-like activities, where she was requested to jointly perform multiple functional tasks with another individual in a community-based setting (working co-operatively with another individual to identify necessary items to furnish an apartment; plan and budget for a visit to a local store; and plan a retirement party). According to the OT's this approach assesses the individual's ability to function and carry out goal-directed behaviour that relies on executive cognitive abilities such as those found in work/ work-like settings. The OT's found that during more complex work-like tasks in the group setting that there were several errors and omissions, the applicant was somewhat distractible, struggling with task persistence and planning, and the applicant became withdrawn from the other participant. Dr. Gnam opines that the applicant's performance during the group community-based assessment demonstrates significant impairments in attention, sustained concentration, working memory, task persistence and executive function.

33Based on my review of the evidence, I agree with Dr. Gnam that pre-accident the applicant managed a busy, complex life with sustained demands of working as an occupational therapist in a hospital; that the mental disorders attained as a result of the accident have, relative to her pre-accident baseline, resulted in levels of impairment in supervisory attentional capacities, working memory, executive function, and task persistence that significantly impede useful function.

34Taking into account the above-noted considerations in light of the Guides, I find that the applicant has a Marked impairment in the domain of concentration, persistence, and pace.

What is the level of functional impairment in the domain of Adaptation?

35In sum, the factors to consider under this domain are as follows. "Deterioration or decompensation in work or work like settings refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation signs and symptoms. He or she may decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stressors common to the environment include attendance, making decisions, scheduling, completing tasks and interacting with others.

36I find that the applicant suffered a Class 4 Marked Impairment in the sphere of Adaptation as a result of the accident.

37Dr. Gnam assesses that the applicant suffers a class 4 (marked) impairment within this domain of function. As with the other domains, I prefer Dr. Gnam's evidence in the sphere of adaptation. Dr. Gnam opines that the applicant's performance during the group situational assessment implies the applicant cognitive capacities deteriorate rapidly when she is exposed to the stresses of more prolonged or cognitively demanding tasks. Dr. Gnam goes further, stating that the applicant's performance during both OT assessments deteriorated and was characterized by pain escalation, fatigue, and disengagement, which implies that deterioration in her mental state can be provoked by exposure to objectively minor stresses over a few hours.

38I do not find Dr. Jwely's opinion to be persuasive because I find that he does not provide any demonstrable examples or corroborating information regarding his rating in this domain. Dr. Jwely opines that the applicant suffers a class 3 (moderate) level of impairment in terms of her adaptation capacities but does not tie together his findings on diagnoses with the OT report, the documentation reviewed or any of his limited observations from his assessment of the applicant. In my view, Dr. Jwely's findings in this sphere appear disconnected from the observations of Ms. Wendt's who is quoted as the only reasoning for the rating provided. Ms. Wendt observed that the applicant has not returned to her pre-accident employment in any capacity, that the applicant was not oriented to the date or day of the week during her ADL assessment, had not adapted her routine to accommodate the in-home assessment, had not showered, washed, or combed her hair or changed her clothing between day one and day two of the assessment. During her assessment Ms. Wendt had the applicant 'play the role of OT and administer a standardized cognitive function assessment test; the "BCAT" test was "administered" by the applicant on a play-acting 'patient' Ms. Wendt; in summary the applicant was not able to administer the test due to symptoms, reporting that she was no longer able to tolerate reading all of which does not align with the rating provided by Dr. Jwely.

39I find that the applicant's testimony regarding her functioning in this domain is consistent with Dr. Gnam's assessment. When the applicant was asked why she doesn't return to work (as an OT in a hospital setting), she stated categorically that she could not handle the role in her current state; that her anxiety, panic attacks, diminished communication skills and lack of stamina force her to conclude that she is incapable of handling the demanding high stress role that included developing treatment plans based on physician assessments, explaining care to a patient, making decisions, delivering care and performing discharge assessments. The applicant stated that she shuts down when she has to make decisions. There are examples of similar statements found in Ms. Wendt's assessment report when she concludes that the applicant's reduced ability to sustain participation with work related activities within the comfort and safety of her home indicates reduced ability to tolerate exposure to cognitive situations as would be required as a component of her pre-accident employment. There are also examples of similar statements in Ms. Shaw's assessment report when she concludes the applicant evidenced limited ability to manage stressors associated with the assessment process and that observed tolerances were well below that required in her pre-accident vocational and everyday routines.

40I agree with Dr. Gnam when he states that because of significant and generalized stress intolerance that affects many scenarios, the applicant has a post-accident daily routine characterized by limited participation in routine in-home activities, reduced social interactions, and minimal to no engagement in her pre-accident community-based activities, including work. Dr. Gnam opines that there has been a consistent pattern of deterioration in mental status and functional performances observed across several assessments, that implies that mental impairments in adaptation are broadly generalized, significant and impactful in nature, and attain the level whereby they significantly impede useful functioning which corresponds to a class 4 level of impairment.

41Based on the above, I find that the applicant has suffered 3 marked (class 4) impairments as a result of the accident. I therefore find, on a balance of probabilities, that the applicant is catastrophically impaired as defined in the Schedule.

Is the applicant entitled to the treatment plans in dispute?

42To 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.

43There are sixteen treatment and assessment plans in dispute. I find that on a balance of probabilities the applicant is entitled to three of those treatment plans as follows.

Psychotherapy and Social Worker Counselling

44I find the applicant is entitled to the treatment plan for $4,549.23 for Psychotherapy and Social Worker Counselling, proposed by E Clinic United Healing in a treatment plan submitted August 29, 2022. This plan was partially approved for 15 sessions of 1 hour in length with a social worker instead of 20 sessions of 1.5 hours in length.

45The goals of the treatment plan are to promote the applicant's self-care, fostering greater use of mindfulness, and reflection to help manage emotional difficulties and challenges, to promote applicant motivation and self-confidence, to enhance applicant problem solving skills, to help the applicant adopt new strategies for coping with stress and awful situations, development of more positive coping strategies and re-working and resolution of traumatic stress so that the applicant can return to the pursuit of work, relationships and the enjoyment of life.

46I find that the applicant is entitled to the additional 5 sessions of social worker counselling that are in dispute. The applicant has testified that mental health counselling is helpful in improving the symptoms related to depression and anxiety. I find that her testimony is consistent with the clinical notes and records of Dr. Gvozdic dated July 11, 2022, and October 27, 2022, in which Dr. Gvozdic notes the stressors that exacerbate the applicant's symptoms. The applicant has clearly identified goals for the treatment plan regarding her mental health, and I find that in light of her psychological condition, the goals are reasonable, can be met to a reasonable degree and that the cost of achieving the goals is reasonable.

Botox Injections

47I find that the applicant is entitled to $1,550.00 for Botox injections, proposed by iScope Concussion and Pain Clinic in a treatment plan submitted January 4, 2022.

48The goals of the treatment plan are to reduce pain and increase range of motion to support a return to activities of normal living and pre-accident work activities.

49The applicant testified that the Botox treatment is effective and helps in reducing the severity of migraines. She submits that she has paid for the service out of pocket in the absence of support from the respondent.

50I find that the denial was made on the basis of the applicant being subject to the MIG, which no longer applies. Further, Dr. Gvozdic notes continuing headaches as an issue on November 18, 2021, and January 31, 2022. The goals of the treatment have been identified, are reasonable in light of the medical documentation, and the goals can reasonably be met by the proposed service; finally, the cost of achieving the goals is reasonable.

Attendant Care Assessment

51I find that the applicant is entitled to $2,486.00 for an attendant care assessment, proposed by Q Medical in a treatment plan submitted February 7, 2022.

52The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

53The goal of the treatment and assessment plan is pain reduction, and identification of the applicant's limitations and level of impairment as it relates to her ability to engage in ADL safely and independently so that the applicant may return to activities of normal living and provide recommendations to encourage and facilitate restoration of pre-accident independence mobility and physical tolerances.

54In this case, I find that the family doctor records of Dr. Gvozdic prior to and following the proposed assessment for attendant care note that the applicant is fatigued, her symptoms appear to be getting worse and the applicant is unable to care for the children without support from family. I find that Dr. Gvozdic's notes provide grounds that the applicant may require attendant care, and that it is reasonable to conduct further investigation. The plan also highlights the s.44 psychological report by Dr. Amena Syed of January 21, 2022, who opined that due to the applicant's pain she has difficulty taking care of the children, is not able to sleep well, and is not able to get to work. Accordingly, I find on a balance of probabilities that the assessment is reasonable and necessary.

Remaining Treatment Plans

55I find on a balance of probabilities that the applicant is not entitled to the remaining treatment plans as follows.

i. $1,995.50 for Chiropractic Services, proposed by Omni Health Rehab, in a plan submitted November 1, 2021.

(i) I find that the applicant, on a balance of probabilities, has not met her onus with regard to the chiropractic services treatment plan of November 1, 2021.

(ii) The goals of the treatment plan are pain reduction, increased range of motion, increased strength, and education regarding hurt versus harm with the objective of returning to activities of normal living.

(iii) This treatment plan is for 18 sessions by a physical therapist, 1 hour of documentation and a 1-hour total body assessment. I find that records of Dr. Gvozdic prior to and following the issue of this treatment plan are entirely focused on mental health issues. While there is advice to continue physiotherapy, vision therapy and acupuncture there are no complaints related to physical ailments noted. The majority of the evidence before me is focused on mental health issues as the impairment that impacts functionality, and as such it is not clear to me based on the evidence how this treatment plan will support recovery of the applicant. I therefore find the applicant has not met her onus.

ii. $2,558.32 for a psychological services assessment, proposed by Q Medical in a treatment plan submitted January 28, 2022.

(i) I find on a balance of probabilities that the applicant is not entitled to the psychological services assessment submitted on January 28, 2022.

(ii) The plan outlines the services to be delivered as a mental health assessment, document completion and transportation services. The goals of the plan are to acquire, validate and interpret data needed to identify and evaluate the applicant's psychological, emotional, and social repercussions following the accident with an objective of identifying if a psychological impairment exists.

(iii) This assessment plan was denied by the respondent on February 9, 2022, as it was viewed as a duplication of services previously approved at this same facility on November 5, 2021. I find that this assessment plan is a duplication of services, the applicant has not addressed why a second assessment at the same facility is necessary. While the applicant has been found to be catastrophically impaired on a criterion 8 basis, psychological services as opposed to assessment at a facility the applicant has previously been attending would seem more reasonable.

iii. $2,486.00 for a Cognitive Assessment, proposed by Q Medical in a treatment plan submitted February 17, 2022.

(i) I find on a balance of probabilities that the applicant is not entitled to the cognitive assessment submitted on February 17, 2022.

(ii) The cognitive assessment was proposed by treating chiropractor Dan Schlepakov. The applicant testified that this was to help work on her issues. The goals of the plan are to identify tasks, environments, and equipment that present barriers to the applicant's recovery and return to normal activities with an objective of returning to activities of normal living

(iii) The respondent denied this treatment plan following a s. 44 examination by Ms. Sheri Ashton, OT. Ms. Ashton noted that while the applicant has ongoing functional limitations, given that she has received minimal treatment for her diagnosed concussion, it is reasonable to provide a multidisciplinary approach to treat her ongoing functional limitations. However, the OCF-18 is not reasonable and necessary, at the time of this OCF-18 being issued the applicant had already been referred to iScope Concussion and Pain centres by her family doctor and had been approved for an OCF-18 December 13, 2021, for a multidisciplinary rehab approach to her concussion.

(iv) I find that this assessment plan is a duplication of services, the applicant has not addressed why a second assessment so closely following the December approval is necessary.

iv. $2,316.50 for a MRI Assessment, proposed by Q Medical in a treatment plan submitted March 21, 2022.

(i) I find on a balance of probabilities that the applicant is not entitled to the MRI assessment submitted March 21, 2022.

(ii) The MRI recommended by Dan Shlepakov, chiropractor was to investigate a problem with the right ulnar nerve. The applicant testified that an MRI was undertaken in search of nerve compression. The applicant also testified that no nerve compression had been found as a result of the MRI. The respondent relies on s. 47(2) and submits that MRIs are OHIP funded services. The applicant appears to have had the proposed MRI and therefore the assessment is not reasonable and necessary.

(iii) I find that MRIs are an OHIP funded service and that as per s.47(2) the respondent is not required to fund the publicly funded service.

v. $2,567.36 for a neurological assessment, proposed by Q Medical in a treatment plan submitted March 21, 2022.

(i) I find on a balance of probabilities that the applicant has not met her onus and is not entitled to the neurological assessment proposed on March 21, 2022.

(ii) The neurological assessment is proposed by chiropractor Dan Schlepakov in order to explore right hand numbness and it is integrally linked to the request for an MRI on this same date by this same treating chiropractor. The MRI was undertaken, and no nerve compression was found. The applicant has not identified any goals to support approval of this assessment.

vi. $792.08 for assistive devices, proposed by Q Medical in a plan submitted on March 18, 2024.

(i) I find on a balance of probabilities that the applicant is not entitled to the assistive devices proposed in a plan submitted March 18, 2024.

(ii) The recommendation is for a mesh laundry bag, cervical pillow, bath chair and a four-wheel grocery cart. The respondent submits that there is no evidence to support the treatment plan and denied it based on a s.44 physiatry examination. The applicant in her testimony stated that she does not go grocery shopping, does not do laundry, and put an existing chair in the shower to support safe showering. The applicant does not engage in two of the activities the devices are to support, has found a simple work around for the shower and provided no evidence regarding the pillow. I have no evidence to support the goals for this treatment plan. I find that the applicant has not established that the treatment plan for assistive devices is reasonable or necessary.

vii. $3,710.00 for a psychotherapy treatment, proposed by E Clinic United Healing in a treatment plan submitted March 25, 2022.

(i) This disputed treatment plan was partially approved. I find that the applicant is not entitled to the unapproved portion of the treatment plan.

(ii) On a balance of probabilities, the treatment plan was properly partially approved, the unapproved amounts relate to differences between the schedule of fees for psychotherapy and the fees outlined on the OCF-18. Section 15(2)(b) establishes that an insurer is not liable to pay for medical benefits that exceed the maximum rate or amount of expenses established under the Guideline. As the fees proposed in the plan exceed the maximum rate the approval was for services at the approved rate, therefore there is no basis on which to approve the unapproved portion.

viii. $2,173.60 for a psychological services, proposed by E Clinic United Healing, in a treatment plan submitted March 25, 2022.

(i) I find on a balance of probabilities that the applicant is not entitled to the psychological services treatment plan submitted March 25, 2022.

(ii) The plan is for 12 devices which include a gratitude book, mindful crystal set, salt lamp and several meditation aids. The goal of the plan is to prevent exacerbation of symptoms and impairments and to enhance overall wellbeing. I find the goals are general and not specific enough to be directly connected to accident-related injuries. The applicant did not testify in direct relation to this treatment plan, and I have no other evidence that would suggest the plan is reasonable and necessary. I find that the applicant is not entitled to the treatment plan as it is not reasonable and necessary.

ix. $1,400.00 for a yoga session assessment, proposed by E Clinic United Healing in a treatment plan submitted May 17, 2022.

(i) I find that, on a balance of probabilities, the applicant is not entitled to the "Qigong" denied as a part of the "yoga therapy" in a plan submitted May 17, 2022.

(ii) The applicant in her testimony outlined that yoga therapy was helpful, however, there was no mention of "Qigong". The goals for this treatment plan were not identified, and I have no medical evidence before me that supports the approval of this plan. Furthermore, the clinical notes of a Dr. Gvozdic visit of July 2022 the applicant reports she is trying yoga but "nothing helps". I find that the applicant has not met her onus.

x. $3,639.23 for a Social Worker Counselling Treatment, proposed by E Clinic United Healing in a plan submitted November 30, 2022.

(i) The treatment plan was partially approved. On a balance of probabilities, the applicant is not entitled to the unapproved portion of the treatment plan.

(ii) The treatment plan was partially approved, the unapproved portion relates to the length of 16 sessions with 1.5 hours being requested and 1 hour per session being approved. The denied portions relate directly to the approved fee guideline and therefore there is no basis on which to approve the unapproved amounts. Section 15(2)(b) establishes that an insurer is not liable to pay for medical benefits that exceed the maximum rate or amount of expenses established under the Guideline. As the fees proposed in the plan exceed the maximum rate the approval was for services at the approved rate, therefore there is no basis on which to approve the unapproved portion.

xi. $1,050.00 for a nutritional assessment, proposed by E Clinic United Healing in a treatment plan submitted May 24, 2023.

(i) I find that, on a balance of probabilities, the applicant is not entitled to the nutritional assessment plan submitted May 24, 2023.

(ii) The treatment plan outlines the goal of acquiring, validating and interpreting data needed to identify nutrition-related problems, their root causes, and their relevance to overall health status post accident with an objective of establishing whether a nutritional diagnosis exists.

(iii) The applicant in her testimony stated that she made traditional, whole food meals prior to the accident and now is unable to prepare these meals. The applicant is aware that the way they are currently eating is not as healthy as the meals she made prior to the accident. The issue has been the energy required and initiation of the task. The applicant testified that it is unlikely that she would cook even with the assessment. There is no medical evidence before me that support the approval of this assessment. On a balance of probabilities, the assessment plan is not reasonable and necessary.

xii. $1,981.40 for a chiropractic treatment assessment, proposed by E Clinic United Healing in a plan submitted December 27, 2023.

(i) I find that the applicant is not entitled to the chiropractic treatment plan submitted December 27, 2023

(ii) The applicant testified that her back hurts and she thinks the treatment plan would be helpful, however, no goals were identified. In the months leading up to this treatment plan the applicant does not raise any physical back-pain with her family doctor Dr. Gvozdic.

xiii. $2,443.96 for a physiotherapy services, proposed by iScope Concussion and Pain Clinic in a plan submitted August 19, 2022.

(i) I find that the applicant is not entitled to the physiotherapy services proposed and submitted August 19, 2022.

(ii) The treatment plan set out pain reduction and increased range of motion as goals with the objective of returning to activities of normal living and pre-accident work activities. The plan proposes 18 x 1-hour sessions of vestibular physiotherapy a progress report, documentation support, a cervical pillow, massage gun and pain relief cream for a total of $2,443.96.

(iii) The applicant testified that physiotherapy helped a bit. The family doctor records of Dr. Gvozdic prior to and following the issue of this treatment plan, are entirely focused on mental health issues. The majority of the evidence before me is focused on mental health issues as the impairment that impacts functionality, it is unclear how this treatment plan will support recovery of the applicant. On a balance of probabilities, I find that the plan is not reasonable or necessary.

Costs

56I decline to award costs to the applicant.

57Rule 19.1 of the Rules allows the Tribunal to award costs when a party's conduct has been unreasonable, frivolous, vexatious, or in bad faith.

58At the beginning of the hearing, the applicant submitted that the respondent had not exchanged documents agreed to in the case conference report and order of April 26, 2024. In particular, the applicant highlighted the adjusters' log notes had been delivered one week late and the draft s. 44 reports were delivered on the Saturday prior to the hearing. The applicant submitted that as per Licence Appeal Tribunal Rules, 2023 ("Rule") 19.1, the respondent should be penalized for the late delivery of these documents and requested costs.

59The respondent submitted that the late delivery of the reports was caused by a third party who did not deliver them as requested, that requests had been made in a timely fashion and that they had no control over the third party. It submits the late delivery of the adjuster's log notes was inadvertent.

60The respondent further submitted that they do not take issue with the use of the draft reports by the applicant at the hearing.

61The test for costs remains a very high bar and should only be ordered where there is no other reasonable means of addressing misconduct. Although the respondent was in non-compliance with the Tribunal's orders, the non-compliance was rectified.

62I agree that the reports were late produced, however, the applicant did have the reports prior to the start of the hearing and was able to effectively use the draft reports during cross examination. As such, I find the applicant was not prejudiced by the late production and decline to award costs.

Interest

63Interest applies on the payment of all overdue benefits pursuant to s. 51 of the Schedule. The applicant is owed interest on the overdue payments related to the approved treatment and assessment plans.

Award

64The 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. There is no evidence before me, and no particulars identified regarding an award. I find that no award is due.

ORDER

65For the reasons above I find that the applicant has on a balance of probabilities, sustained a catastrophic impairment as defined by the Schedule.

66For the reasons above I find that the applicant is entitled to the three following treatment and assessment plans:

i. Botox injections, proposed by iScope Concussion and Pain Clinic in a plan submitted January 4, 2022.

ii. An attendant care assessment, proposed by Q Medical in a plan submitted February 7, 2022.

iii. Psychotherapy and social worker counselling, proposed by E Clinic United Healing in a plan submitted August 29, 2022.

67For the reasons above I find that the applicant is not entitled to the following thirteen treatment and assessment plans:

i. Chiropractic services, proposed by Omni Health Rehab, Anil Kaushal in a plan submitted November 1, 2021.

ii. Psychological services assessment, proposed by Q Medical in a plan submitted January 28, 2022.

iii. Cognitive assessment, proposed by Q Medical in a plan submitted February 17, 2022.

iv. Assistive devices, proposed by Q Medical in a plan submitted on March 18, 2024.

v. An MRI assessment, proposed by Q Medical in a plan submitted March 21, 2022.

vi. A neurological assessment, proposed by Q Medical in a plan submitted March 21, 2022.

vii. A psychotherapy session assessment, proposed by E Clinic United Healing in a plan submitted March 25, 2022, to ongoing.

viii. A psychological services assessment, proposed by E Clinic United Healing, in a plan submitted March 25, 2022.

ix. A yoga session assessment, proposed by E Clinic United Healing in a plan submitted May 17, 2022.

x. A social worker counselling treatment, proposed by E Clinic United Healing in a plan submitted November 30, 2022.

xi. A physiotherapy services, proposed by iScope Concussion and Pain Clinic in a plan submitted August 19, 2022.

xii. A nutritional assessment, proposed by E Clinic United Healing in a plan submitted May 24, 2023.

xiii. A chiropractic treatment assessment, proposed by E Clinic United Healing in a plan submitted December 27, 2023.

68The applicant is owed interest on the overdue payments related to the approved treatment and assessment plans from February 7, 2022, January 4, 2022, and August 29, 2022.

69The respondent is not liable to pay an award under s. 10 of Reg. 664.

70The applicant is not awarded costs.