Spinelli v. TD General Insurance Company, 2024 CanLII 131931

Citation: Spinelli v. TD General Insurance Company, 2024 ONLAT 23-005550/AABS

Licence Appeal Tribunal File Number: 23-005550/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:

Maria Spinelli

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tami Cogan

APPEARANCES:

For the Applicant:

Maria Spinelli, Applicant

Anna Szczurko, Counsel

For the Respondent:

Robert P. Bowman, Counsel

Heard by Videoconference:

June 10, 11, 12, 13, 14, 17, 18, 2024

OVERVIEW

1Maria Spinelli, the applicant, was involved in an automobile accident on February 10, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2Prior to the hearing, the respondent advised the preliminary issues identified at the case conference had been withdrawn.

SUBSTANTIVE ISSUES

3The issues in dispute are:

i. Has the applicant sustained a catastrophic impairment as defined by the Schedule Criterion 8, Class 4?

ii. Is the applicant entitled to attendant care benefits in the amount of $3,196.89 per month from July 29, 2022 to present?

iii. Is the applicant entitled to $1,890.00 ($4,482.00 less $2,592.00 approved) for chiropractic services proposed by Michele Zigrovic-Lasic (DC) and Anto Lukenda (MT) in a treatment plan/OCF-18 (“plan”) dated May 1, 2021?

iv. Is the applicant entitled to $2,283.00 for occupational therapy services proposed by Betty Tran in a plan dated September 2, 2022?

v. Is the applicant entitled to $1,514.44 for other assistive devices proposed by Ochirsaikhan Erdene-Ochir in a plan dated September 21, 2022?

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

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

RESULT

4The applicant has not sustained a catastrophic impairment as defined by the Schedule.

5The applicant is not entitled to the attendant care benefits claimed.

6The applicant is not entitled to $1,890.00 for chiropractic services proposed in a treatment plan dated May 1, 2021.

7The applicant is not entitled to $2,283.00 for occupational therapy services proposed in a treatment plan dated September 2, 2022.

8The applicant is not entitled to $1,514.44 for assistive devices proposed in a treatment plan dated September 21, 2022.

9No interest is owing.

10The respondent is not liable for an award under s. 10 of Reg. 664.

11The appeal is dismissed.

PROCEDURAL ISSUES

Disclosure of Tort Defence Report

12The respondent sought a production order for the Tort Defence Report, provided to Dr. Nadia Brown for document review when preparing her Catastrophic Impairment Criterion 8 Paper Review report dated February 5, 2024. The respondent submits the content of that report influenced Dr. Brown’s conclusions and opinion. The respondent has not been provided the Tort Defence Report and submits this is prejudicial to the respondent who does not have that information and cannot cross-examine on its content.

13The applicant submits the report does not belong to the applicant, and the Undertaking Rules preclude its disclosure.

14I find that the Undertaking Rules do not apply to this administrative law proceedings. However, I find that any prejudice suffered by the respondent is overcome through having had Dr. Brown’s Catastrophic Impairment Criterion 8 Paper Review report for several months and having had time to prepare for cross-examination of the witness who will be called to testify on the content of the report, including how she formed her opinions. However, I will give Dr. Brown’s report less weight, because without the Tort Defence Report in evidence to review on its face, its probative value is unknown.

Exclusion of witness, Marivic Palocio, Cira Health Solutions

15The respondent sought the exclusion of the witness, Marivic Palocio of Cira Health Solutions. The respondent submits that the applicant’s summons request was denied, and no will say statement has been provided and Ms. Palocio has no relevance to the issues in dispute.

16The applicant submits this witness was the administrator who handled the correspondence between the respondent and the Insurer’s Examination assessors. Dr. Ali, the respondent’s expert witness has previously stated that she does not have any notes or assessments because these were handled by the administrator. The witness will testify to the handling of these documents.

17The respondent’s motion to exclude Marivic Palocio as a witness is granted. I note that the applicant made a second request for a summons for the witness, which was granted by the Tribunal. However, a will say statement has not been provided to the respondent. I am not persuaded that this witness’s testimony is relevant to the issues in dispute. As such I am not allowing this witness. The applicant will have the opportunity to cross-examine Dr. Ali on the conclusions of her report and the basis for those conclusions.

Exclusion of witness, Dr. Stewart Plotnick

18The respondent sought to exclude Dr. Stewart Plotnick, psychologist, as a witness. Dr. Plotnick completed an Insurer’s Examination in 2021 for a treatment plan that is not in dispute. The respondent says Dr. Plotnick’s testimony is not relevant or necessary.

19The applicant submits that Dr. Plotnick made a diagnosis of the applicant, and his report was provided to the CAT assessors, which was influential in all of their reports.

20The respondent’s motion is denied. I find that the report is relevant to the issues in the appeal, and I will allow this witness to testify on his report and treatment plan. He is not being presented as an expert witness.

Quash summons of Shannon Patterson, AB Adjuster

21On the fifth day of the hearing, the respondent sought to quash the summons of Shannon Patterson who was summonsed as the accident benefits adjuster. The respondent submits Ms. Patterson has only been assigned to this file for a few months and was not involved when the denial of benefits was made, therefore her testimony will not be of benefit.

22The applicant submits that the accident benefits adjuster who was on the file is no longer employed by the respondent. Ms. Patterson is the only adjuster the respondent has made available. She will testify to the ongoing adjustment of the claim.

23The respondent’s motion is denied. I find that it is well established that the applicant may call a representative of the respondent to testify to the adjustment of the claim. The respondent has been aware of this summons since May 21, 2024, and this is the first time an objection has been formally raised. The respondent has not made available any other representative. The respondent has the ongoing obligation for adjustment of the claim, and as the currently assigned claims adjuster, Ms. Patterson, does have knowledge of the file. The summons will stand, and Ms. Patterson will be called as a witness.

ANALYSIS OF SUBSTANTIVE ISSUES

Issue #1: Catastrophic Impairment

24I find the applicant has not established that she has sustained a catastrophic impairment as defined by the Schedule for the reasons that follow.

25In order prove their case, the applicant must demonstrate that they have suffered accident-related impairments that result in a marked (class 4) impairment in three or more areas of function, or an extreme (class 5) impairment in one are of function according to the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment (the “Guides”) 4th Edition due to a mental or behavioural disorder.

26Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides set out the four areas or “spheres” of functioning and the relative levels of impairment. The test to determine whether the applicant has sustained a catastrophic impairment is a legal one and not a medical one. See: Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30.

27The four spheres of functioning are set out in the Guides as follows:

i. Activities of daily living;

ii. Social functioning;

iii. Concentration, persistence and pace;

iv. Adaptation to work or work-like settings;

28The levels of impairment are set out and defined in the Guides as follows:

i. Class 1: No impairment;

No impairment is noted.

ii. Class 2: Mild impairment;

Impairment levels are compatible with most useful functioning.

iii. Class 3: Moderate Impairment;

Impairment levels are compatible with some, but not all useful functioning.

iv. Class 4: Marked Impairment;

Impairment levels significantly impede useful functioning.

v. Class 5: Extreme Impairment;

Impairment levels preclude useful functioning.

29The applicant’s position is that she has mental or behavioural impairments to a marked degree in; activities of daily living, concentration, persistence and pace, and adaptation to work and work-like settings, under Criterion 8 of the Guides and meets the definition of catastrophically impaired in accordance with the Schedule. In the area of social functioning the applicant submits she has sustained a moderate impairment, which is not in dispute.

30The respondent’s position is that the applicant has not suffered a marked impairment, but rather a moderate impairment in all areas of function.

i. Activities of Daily Living

31I find the applicant does not have a marked impairment in the sphere of activities of daily living.

32The activities of daily living are defined in 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 or 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.

33The applicant submits that she is incapable of initiating or participating in activities of daily living without supervision or direction, which significantly impedes useful functioning. The applicant relies on the occupational therapy situational assessment of Betty Tran, occupational therapist, dated February 8, 2023, the neuropsychological assessment of Dr. Peter Gaskovski, neuropsychologist, dated February 11, 2023, and the catastrophic impairment criterion 8 paper review of Dr. Nadia Brown, MD., dated February 5, 2024.

34The respondent submits that the applicant is capable of some, but not all useful functioning, and relies on the occupational therapy in-home and situational assessments of Joan Saunders, occupational therapist, dated August 25, 2023, and the psychiatry assessment of Dr. Sherese Ali, psychiatrist, dated August 25, 2023.

35I have heard evidence from the applicant that prior to the accident she was fully independent for her own personal care, with no limitations in the activities of daily living. She was highly motivated and efficient in all of her tasks and responsibilities. She worked up to fifteen hours a day as the chief financial officer of four family corporations, prepared three meals from scratch for six people each day, transported her children between home and school and other activities, and single-handedly managed the household. She was the primary caregiver for her children and advocated for their education accommodation needs. She participated in family recreational activities on the weekends which included downhill skiing, and snowmobiling. The family home was the hub of their extended family, and she hosted large family gatherings, making all their cultural food from scratch by herself, a few times each month.

36The assessors have been in agreement on the diagnosis of somatic symptom disorder. Dr. Pilowski noted in her October 20, 2021 report that the results of the Personality Assessment Inventory (PAI) indicate that the applicant may not have answered in a completely forthright manner, and there are subtle suggestions that she attempted to portray herself in a negative or pathological manner, raising concern about distortion of the clinical picture. Dr. Gaskovski noted in his neuropsychology assessment for catastrophic impairment determination report dated February 11, 2023, that the applicant’s PAI results had a similar finding, and he opined that the applicant is likely to report that her daily functioning has been compromised by numerous and varied physical problems. Dr. Ali testified that she has some doubts about the applicant’s credibility based on inconsistent reporting of details. Specifically, over time the details of the accident have evolved. This is also noted in her report. Dr. Ali also expressed doubt about the applicant’s reporting of the level of her daily activity prior to the accident, based simply on there not being enough time in a day to complete all that the applicant has indicated that she did. I also heard evidence from the applicant’s husband that prior to the accident his mother would assist with transporting the children and be at the house in the evenings when the applicant needed to work longer hours. I accept his evidence that the applicant had assistance prior to the accident. It is based on this information that I prefer the objective, observational evidence of the assessors, over the subjective, self-reporting of the applicant.

37I heard testimony that after the accident, the applicant’s husband took on responsibility for transporting the children, and dealing with tasks for the corporations that were previously the applicant’s responsibility. The oldest daughter, Domenica, helped with meal preparation for the family, driving her youngest sibling to school, shopping for groceries, and assisted the applicant with her personal hygiene. Domenica no longer lives with the family and no longer performs these tasks. A family friend, Maryam, was assisting the applicant with anything she required, including personal care. The family friend, Maryam testified that for the first year after the accident she assisted the applicant with bathing and personal hygiene. I accept this evidence and finds it demonstrates the applicant had a decline in her functional ability after the accident.

38The applicant testified that in 2019 she returned to working part-time, from a home office, in a limited capacity. Since 2021 she has consistently reported to assessors that she participates in personal care, cooking, shopping, housekeeping and recreational activities on a modified basis or with assistance of family or a friend. The level of participation reported has varied. She has reported to assessors and testified that in 2019 she travelled to Italy for a family trip, and in 2023 travelled to the United States to deal with her grandmother’s estate. The applicant attends church on a regular basis, however, the frequency reported varies from weekly to daily. The applicant has also reported returning to recreational activities such as skiing and snowmobiling, albeit on a limited basis. The applicant continues to drive a car and takes herself to the grocery store and appointments. I find this persuasive evidence that the applicant has some useful functioning.

39In the psychological Insurer’s Examination report of Dr. Stewart Plotnick dated October 28, 2021, he noted that the applicant reported managing many appointments, including massage, physical therapy, and her children’s orthodontics, leaving her feeling highly overwhelmed. In the physiatry assessment report of Dr. Kumbhare dated February 28, 2022, the applicant denied having driver or passenger anxiety while operating a snowmobile. The applicant also reported being independent with personal care activities with modifications and pacing. She reported needing assistance with meal preparation because she cannot tolerate prolonged standing.

40The occupational therapy situational assessment report of Betty Tran dated February 8, 2023, indicates the applicant was observed standing and cooking for 1 hour. In her observations Ms. Tran reported that during the short-term cooking task the applicant did receive minimal assistance from her son, being that he retrieved ingredients from the downstairs kitchen, however when he was not present, the applicant retrieved items for herself. The short-term cooking task required the applicant to break her focus away from the short-term cooking task and engage in a secondary task of making a phone call, which did not allow her to remain focused on the food that was cooking. As a result, the applicant burnt one of the ingredients. Ms. Saunders opined the secondary task was inappropriate for a short-term task assessment, but would have been appropriate for a longer-term task, such as cooking a roast that did not require constant attention. I agree with Ms. Saunders. The fact that the applicant was required to divert her attention does not allow for a conclusion as to whether she was capable of maintaining focus. I accept the evidence of Ms. Tran that the applicant was observed managing kitchen items independently, which I find demonstrates some useful functioning.

41For the community task, in advance of the day, Ms. Tran had informed the applicant what she would be required to do. The applicant performed well, and the activities lasted for approximately 1.5 hours, after which the applicant required rest. No concerns were noted for ambulation. She performed grocery shopping with assistance for loading and unloading the bags from the vehicle. The applicant expressed that she does the shopping but limits herself to attending only one grocery store, instead of attending several stores as she would have prior to the accident. She drives her vehicle independently. She was able to transfer from sitting to standing without support. In her observations Ms. Tran reported unorganized piles of clothing in the laundry room. The bathroom floors and shower stalls were not maintained to the applicant’s standards, being that there were water marks being left uncleaned, and her sink counter was cluttered. There were clothes not put away in the bedroom and closet, and the bed was unmade. The Ms. Tran testified that the applicant’s home was messy, but sanitary. She also testified that the applicant is independent in managing her appointments and medications. The applicant did not require prompting or queuing for tasks such as eating or bathing. The applicant reported her typical daily routine to Ms. Tran as follows: She prepares breakfast and lunches for her family each day and cleans up the kitchen. She completes her personal care, including showering. She reported making beds, doing laundry and household cleaning. She reported working from home between 11:00 a.m. and 4:00 p.m., while starting to prepare dinner between 2:00 p.m. and 3:00 p.m. She reports dinner is ready for 6:30 p.m. and she cleans up afterward. When reporting her daily routine, the applicant did not express receiving any assistance for the activities of daily living. She expressed difficulty sleeping and experiences fatigue during the day. I find this evidence strongly supports the applicant has some useful functioning.

42Ms. Joan Saunders completed an in-home assessment and a situational assessment, dated August 25, 2023. The applicant reported her sleep is improving with psychotherapy and the use of CBD. The applicant reported being independent with personal care and showering every day, washes her hair every three days, dressing more casually than before the accident and does not wear as much make-up. There were no concerns observed with the applicant performing independent personal care. The applicant also denied the need for basic supervisory care. The applicant reported making meals for the family, but with less efficiency and more fatigue than before the accident. She reported Maryam, a family friend comes over to use the pool and in return helps the applicant by picking up the children, groceries, medication, and errands. She reported a decline in sexual intimacy with her husband and attributed part of the reason to her husband’s fatigue. The applicant reported attending church daily and has returned to downhill skiing and snowmobiling, but with less frequency and duration than before the accident. Family gatherings at the home are smaller and food is ordered in. The family goes out to dinner occasionally. Ms. Saunders reported the same observations as Ms. Tran regarding the clothing in the bedroom. The applicant was observed independently performing a cooking task of preparing breakfast, no concerns were reported. The applicant chose what to make and retrieved the appropriate ingredients in the appropriate amounts. No prompting was required. It was a multi-ingredient, multi-step task with several components that required multi-tasking. During the task the applicant engaged with the assessor without being distracted from her task. A community assessment was conducted which involved shopping at an unfamiliar store. It required the applicant to follow a multi-item list and instructions and interact with store staff. Although the applicant was participating independently and performing well, 36 minutes into the community assessment she requested to stop, citing dizziness and feeling overwhelmed. I find this evidence strongly supports that the applicant has some useful functioning.

43In reviewing the neuropsychological assessment of Dr. Gaskovski, dated February 11, 2023, I note that in all activities of daily living he has reported each taking more time, being partially reduced, less consistent, or very reduced. However, all activities continue to be engaged by the applicant, some without and some with minimal assistance, accommodations, or modifications, such as pacing. Dr. Gaskovski opined the applicant has sustained a marked impairment in the sphere of activities of daily living. I do not find Dr. Gaskovski’s conclusion to be well supported by the evidence.

44I find the report of Dr. Ali persuasive. In the psychiatric assessment of Dr. Ali dated August 25, 2023, the applicant reported that she performs personal care independently, but experiences “whole body pain”. She returned to downhill skiing and snowmobiling two years after the accident, but on a less frequent basis. She attends church everyday. The applicant reported having difficulty falling asleep. She continues with personal care, housekeeping, work tasks and family management, but does not perform as well as she did before the accident. The applicant reported cooking, grocery shopping and driving. I note the extensive review Dr. Ali conducted of all medical records provided to her. Dr. Ali opines the applicant has sustained a moderate impairment in the sphere of activities of daily living. I agree with Dr. Ali.

45Given the abundance of evidence before me, I find that the applicant is capable of initiating and participating, either independently or requires minimal assistance with her self-care, personal hygiene, communication, ambulation, and travel. I find that her sexual function, sleep and recreational activities are reduced from her pre-accident levels, however her impairment level is compatible with some, but not all useful functioning.

46Based on the evidence before me, I find that on a balance of probabilities the applicant’s impairment does not rise to the level that significantly impedes useful functioning as a result of the accident, due to a mental/behavioural disorder. She has therefore not established that she has sustained a marked impairment in this sphere.

ii. Social Functioning

47I find the applicant does not have a marked impairment in the sphere of social functioning.

48Social functioning is defined in the Guides:

An individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others such as family members, friends, neighbours, grocery clerks, lenders, etc. Impaired social functioning may be demonstrated by history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Strengths 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 behaviour, consideration for others, awareness of others’ sensitivities and social maturity also need to be considered.

49Dr. Gaskovski and Dr. Ali agree the applicant suffers from a moderate impairment due to a mental or behavioural disorder in the sphere of social functioning. I agree with the experts.

50The applicant was reported to interact appropriately with family, store clerks, and all assessors. She attends church regularly and has returned to recreational activities on a reduced basis.

51I note that most of the assessors described the applicant as being tangential during the interviews. She would either share too much detail, or not answer the question that was asked and need to be re-directed, demonstrating a need for occasional assistance in communication. I also note that the applicant testified for 2 hours 40 minutes on the first day of the hearing and 2 hours on the second day of the hearing. She was clear, easy to understand, and answered most questions without re-direction. I find the applicant has some useful functioning in communication.

52I find that on a balance of probabilities the applicant suffers from a moderate impairment as a result of the accident, due to a mental/behavioural disorder in the sphere of social functioning.

iii. Concentration, Persistence and Pace

53I find the applicant does not have a marked impairment in the sphere of concentration, persistence and pace.

54Concentration, persistence and pace is defined in the Guides:

Concentration, persistence and pace 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 work settings … 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.

55I note that the occupational therapy situational assessment of Betty Tran, and Joan Saunders are consistent. They indicate that the applicant made a good effort, demonstrated persistence, and was motivated to complete the task. For the situational assessments the applicant relied heavily on written instructions for multi-step instructions. She demonstrated a reduced ability to concentrate which affected her ability to plan and organize. During the situational assessment with Ms. Tran, after 1 hour, 25 minutes the applicant required a 30-minute break, after which she continued on with and completed the assessment. I heard that the applicant took longer to complete the tasks than Ms. Tran estimated they should take, however I did not hear how the time estimation was established.

56I heard evidence from the applicant’s husband that after the accident he took over the responsibilities of the payroll and banking, which had previously been the applicant’s responsibility. I heard evidence that the business accountant took on more responsibility to cover some of what the applicant was not completing for the tax filings. I heard that since the accident, six years ago, she missed paying her mortgage on two occasions. I heard she lost a cheque that needed to be re-issued. I did not hear evidence that the applicant was removed from her role as chief financial officer of four family corporations. In fact, the applicant reported that she is responsible for managing the finances of her family and the businesses. The applicant returned to working part-time in 2019 and continues to do so. I heard consistent evidence that the applicant’s productivity has declined due to her inability to organize, plan, and focus. However, for the applicant’s work tasks, it is difficult to quantify or qualify the applicant’s level of function or productivity. I have no evidence before me as to the volume of the applicant’s tasks pre or post accident or the nature of her current responsibilities, only that she works fewer hours and has fallen behind. The number of hours the applicant currently works, that have been reported to assessors, varies from three to ten hours a day, three days a week. I find that although there has been a reduction in the applicant’s responsibilities, she demonstrates an ability to be persistent, use pacing, and can concentrate to a level for some useful functioning. Regarding the household, the evidence I have heard supports that the applicant has some useful functioning as demonstrated by her cooking three meals a day for her family, doing some laundry, some grocery shopping and some housekeeping.

57Dr. Gaskovski’s testimony and report rely partially on his presumption of how the applicant would have preformed in cognitive testing before the accident, compared to her test results post accident. He opined that the applicant was functioning on a very high level prior to the accident. Post accident the applicant’s cognitive test results for attention and concentration ranged from high average to low average. Processing speed, memory, and non-verbal reasoning ranged from average to below average. Verbal fluency ranged from average to low average. Dr. Gaskovski opined that in comparison to her pre-accident levels the test results represent mild to moderate reductions in function. Dr. Gaskovski also opined that the applicant had an unusual stress reaction to some of the cognitive testing. I note that I did not hear any consideration that the applicant may have test anxiety, as opposed to anxiety or avoidance for completing the tasks themselves. Dr. Gaskovski has rated the applicant’s impairment as marked. I am not persuaded by a presumption that the applicant would have tested at higher levels pre-accident. The test before me, is whether the applicant has impairment levels compatible with some, but not all useful functioning. This is a test that considers the level of existing function. Dr. Gaskovski relied on Ms. Tran’s Situational Assessment report and notes the incidents in which the applicant struggled. However, I find the incidents of the applicant’s success in Ms. Tran’s report to be more persuasive. I find the report to demonstrate that the applicant has some useful functioning.

58Dr. Ali has rated the applicant’s impairment as moderate. The applicant continues to drive, which Dr. Ali testified is a complex task and requires concentration. Dr. Ali opined that if the applicant’s cognition was impaired to the level of a marked impairment, she should not be driving. I agree with Dr. Ali.

59I find that the applicant’s concentration, persistence, and pace have declined as a result of the accident. However, I am not persuaded that the applicant’s impairments are to a level that significantly impedes useful functioning. The applicant’s testimony is that she continues to work in her previous role, continues to make meals for her family everyday, and completes some household chores, and employs strategies such as pacing. The applicant continues to drive independently. I find that this demonstrates a level of impairment compatible with some, but not all useful functioning.

60I find that on a balance of probabilities the applicant suffers from a moderate impairment as a result of the accident, due to a mental/behavioural disorder in the sphere of concentration, persistence, and pace.

iv. Adaptation to work and work-like settings

61I find the applicant does not have a marked impairment in the sphere of adaptation to work or work-like settings.

62Adaptation to work or work-like settings is defined in the Guides:

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.

63Dr. Pilowski is the applicant’s treating psychologist, and in her re-assessment, dated June 22, 2022, it is noted that the applicant’s symptoms have improved since she was first assessed in 2021, but psychological symptoms continued to be severe. Dr. Pilowski, testified that in her opinion the applicant does have some useful function.

64I have heard evidence that the applicant feels overwhelmed by tasks. The applicant has repeatedly reported to assessors that she worries about not completing tasks, such as housework, meal preparation, and work-related tasks because of the reaction she anticipates receiving from her husband. The applicant reported to Ms. Tran, and Ms. Saunders, that she experiences anxiety with anticipation of the assessments. Although she experienced anxiety, she completed the tasks as requested.

65I have heard evidence that due to a lack of motivation; the applicant avoids tasks such as styling her hair, shopping for new clothes, and dressing up. However, assessors have described her as appropriately dressed with her hair simply styled and minimal make-up. She finds large family celebrations too overwhelming to prepare. However, she has compensated by decreasing the size and frequency of the gatherings, and brings food in, to relieve her stress. I have heard that the applicant gets overwhelmed by her work tasks and has fallen behind. However, the applicant continues to work part-time. Assessors have reported that she manages her own appointments, with a few errors in scheduling, which are not due to avoidance. The applicant demonstrated in assessments that she relies heavily on written instructions for multi-step tasks. I find that the applicant’s referral to the written instructions demonstrates an awareness and employment of adaptive strategies. The assessors did not express any concern for the applicant’s decision-making ability and the applicant continues to drive independently. The applicant’s interactions with others has reportedly decreased due to a loss in the applicant’s self-image. She has adapted by completing her shopping in stores where she is comfortable, and her interactions with people are appropriate. The applicant has also sought out and continues to engage in psychotherapy. I find the evidence before me demonstrates that the applicant is engaged, has motivation for self-improvement, and is adapting to her current level of functionality.

66In consideration of the abundant evidence before me, I find that the applicant demonstrates adaptability and has some, but not all useful functioning.

67I find that on a balance of probabilities the applicant does not suffer from a marked impairment as a result of the accident, due to a mental/behavioural disorder in the sphere of adaptation to work and work-like settings.

Catastrophic Impairment Determination

68On the balance of probabilities, I find the applicant’s impairment levels are compatible with some, but not all useful functioning, and do not rise to the level of an impairment that significantly impedes useful functioning.

69Since the applicant has not established a marked impairment on at least three of four areas of functioning, I cannot find that the applicant has sustained a catastrophic impairment based on criterion 8, class 4 of the AMA Guides.

Issue #2: Attendant Care Benefit (“ACB”)

70The applicant is not entitled to attendant care benefits because the provider does not qualify under the Schedule.

71Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACBs provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).

72The applicant relies on the Form-1 completed by Ochirsaikhan Erdene-Orchir, occupational therapist dated July 29, 2022, and the occupational therapy in-home assessment of Joan Saunders, dated August 25, 2023. It is the applicant’s position that all recommended attendant care is reasonable and necessary, and payment was unreasonably withheld and should be deemed incurred in accordance with s. 3(8) of the Schedule.

73The respondent’s position is that no claims for attendant care or housekeeping have been made. There have been no invoices submitted to the respondent for attendant care, and therefore, no denial has been made. This is not an issue properly before the Tribunal. Furthermore, the person claimed to have provided attendant care does not qualify under the Schedule as a professional, and no economic loss has been proven, therefore the benefit is not payable.

ACB Provider

74Section 3(7)(c) of the Schedule, sets out that an aide or attendant may be a family member or a friend, and do not require any special qualification. Section 3(7)(e)(iii) requires the person to have either; (A) done so in the course of their employment, occupation or profession in which they would ordinarily have been engaged, or (B) have sustained an economic loss as a result of having provided the service.

75It is the applicant’s position that Maryam Turserkani, qualifies as a professional by virtue of her certification as a life coach.

76I have heard testimony from Ms. Turserkani that she has not previously provided attendant care to anyone, paid or unpaid, because this is not part of her training, or employment. As a life coach she provides dietary and nutritional guidance. She is providing assistance because the applicant is a close friend. I also heard from Ms. Turserkani that she aided the applicant before and after her normal working hours. I did not hear evidence that she sustained an economic loss as a result of the assistance she was providing to the applicant.

77I find that Maryam Turserkani does not qualify as a professional attendant care provider as defined in the Schedule s. 3(7)( e)(iii), namely that the applicant has not shown that services have been provided by a person in the course of their employment, occupation or profession that they would ordinarily have been engaged in but of the accident or who sustained an economic loss as a result of providing the services.

Deemed Incurred

78The applicant submits that the invoices entered into evidence should be deemed incurred because the respondent acted unreasonably and did not provide enough assistance to the applicant so that she could access her benefits.

79In accordance with section 3(8) of the Schedule, an expense can only be deemed incurred if the insurer unreasonably withheld or delayed payment.

80The applicant has entered into evidence a series of invoices from Maryam Turserkani for attendant care beginning January 2020 and ending October 2023, claiming $3,196.89 per month. I have not been directed to any evidence to support that the applicant has submitted invoices to the respondent for attendant care benefits. I have not been directed to any evidence to support that the respondent has denied paying submitted invoices. It is not enough to submit a Form-1. The applicant must claim the actual expense and has not done so.

81I find that in order for the payment of an expense to be withheld or delayed, it would first need to be submitted to the respondent; which was not done in this case, and therefore payment was not unreasonably withheld or delayed and cannot be deemed incurred. No amount for ACB is currently owing.

82I will address whether the respondent provided enough support to the applicant, when I address the claim for a s. 10 award below.

Issues #3, #4, and #5: Treatment Plans

83The applicant is not entitled to $1,890.00 for chiropractic services proposed in a treatment plan dated May 1, 2021.

84The applicant is not entitled to $2,283.00 for occupational therapy services proposed in a treatment plan dated September 2, 2022.

85The applicant is not entitled to $1,514.44 for assistive devices proposed in a treatment plan dated September 21, 2022.

86To 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.

87I have not heard submissions from the applicant on the above treatment plans, nor have I been directed to any evidence in support of the treatment plans.

88Respondent’s submissions on the treatment plans is that they are not reasonable and necessary.

89Having not been directed to any evidence in support of the treatment plans, I find that the applicant has not met the burden of proof. On a balance of probabilities, I find the treatment plans for chiropractic services, occupational therapy services and assistive devices are not reasonable and necessary.

Issue #6: Interest

90As there are no overdue payments of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

Issue #7: Award

91The respondent has not unreasonably withheld or delayed payment of benefits, and no award is payable.

92The applicant is seeking an award under s. 10 of Reg. 664. According to 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.

93The applicant submits that the respondent has a duty to assist the applicant in making her claim for benefits and they failed to do so adequately. The applicant was given misinformation about the benefits available to her. The respondent has failed to pay the applicant for the attendant care services and did not assist her with a claim for housekeeping benefits.

94The respondent submits a minor error was made when the applicant was mistakenly informed that she did not have housekeeping benefits available to her. However, this error was corrected within one week. The applicant was directed to submit the required forms and invited to contact the adjuster. The applicant did not apply for housekeeping benefits and the attendant care invoices were not submitted to the respondent and have not been denied.

95I note that the accident was on February 10, 2018 and on February 16, 2018 the claims adjuster spoke to the applicant. The applicant informed the claims adjuster she had started with chiropractic services. The claims adjuster informed the applicant that forms needed to be sent in and offered the applicant to refer her to CBI for assistance. I heard evidence from Shannon Patterson, Accident Benefits Adjuster, that CBI is a preferred provider, and would be familiar with the forms and documentation requirements. The applicant accepted and the referral was made. The optional benefits were noted. On February 21, 2018 a verbal approval of a Form-1 was given to an occupational therapist at CBI in the amount of $865.00 for attendant care benefits. On February 22, 2018, the applicant complained to the respondent that the amount was insufficient and wanted a new assessment. The claims adjuster mistakenly told her she did not have caregiver or housekeeping benefits, only attendant care for self-care duties. Although incorrect information was given on February 22, 2018, it did not affect her ability to claim attendant care benefits. This information error was corrected within one week, on February 27, 2018. However, the Form-1 had not yet been sent to the respondent on HCAI and the claims adjuster followed up with the occupational therapist at CBI. As of March 5, 2018 an OCF-1 claiming accident benefits had still not been received by the respondent and the claims adjuster contacted the applicant. An OCF-1 was not received by the respondent until December 27, 2019.

96I note that the respondent did arrange for the applicant to receive assistance and did follow-up when the forms were not being received. The error that was made regarding optional benefits was quickly corrected and did not negate the applicant’s ability to claim benefits. The treating psychologist sent a letter to the claims adjuster supporting the need for housekeeping, yet the psychologist did not assist the applicant with submitting a treatment plan, a process she was familiar with as demonstrated by the OCF-18 she completed for a psychological assessment. The applicant had support from her husband, eldest daughter, close family friend, and in 2019, counsel, yet neither a treatment plan for housekeeping, nor invoices for attendant care services were sent to the respondent.

97It is not the responsibility of the respondent to make the claim for benefits on behalf of the applicant. It is well-settled that insurers are not held to a standard of perfection, but reasonableness. I find that the respondent acted reasonably in adjudicating the applicant’s claims that were submitted and did not withhold or delay payments.

98I find the respondent’s conduct is not worthy of an award. No award is payable.

CONCLUSION AND ORDER

99The applicant has not sustained a catastrophic impairment as defined by the Schedule.

100The applicant is not entitled to the attendant care benefits claimed.

101The applicant is not entitled to the three treatment plans in dispute.

102There is no interest owing.

103The respondent is not liable for an award under s. 10 of Reg. 664.

104This appeal is dismissed.