Jackson v. Wawanesa Mutual Insurance Company, 2024 CanLII 4259

minicounsel

Citation: Jackson v. Wawanesa Mutual Insurance Company, 2024 ONLAT 22-005385/AABS

Licence Appeal Tribunal File Number: 22-005385/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:

Ralph Jackson

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Sandra Driesel

APPEARANCES:

For the Applicant:

Ralph Jackson, Applicant

Tanzeela Ansari, Counsel

Kunal Kapoor, Counsel

For the Respondent:

Nicole A. Dowling, Counsel

Jason H Goodman, Counsel

Court Reporter:

Prananth Thambipillki

Heard by Videoconference:

August 21–29, 2023

OVERVIEW

1Ralph Jackson, also known as Jason Jackson, (the “applicant”), was involved in an accident on May 26, 2019, 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, Wawanesa Mutual Insurance Company (“Wawanesa”) and applied to the Licence Appeal Tribunal – Automobile Benefits Service (the “Tribunal”) for resolution of the dispute. Specifically, it denied that the applicant’s accident-related impairments met the definition of catastrophic (“CAT”) impairment.

PRELIMINARY ISSUE

2The respondent raised the following preliminary issue:

Whether the insurer is required to pay an income replacement benefit (“IRB”) if the applicant was operating a vehicle not insured under a motor vehicle liability policy, pursuant to section 31(1)(a)(i) of the Schedule?

ISSUES

3The issues to be decided in the hearing are:

Has the applicant sustained a CAT impairment as defined by the Schedule?
Is the applicant entitled to an IRB in the amount of $400.00 per week from June 3, 2019, ongoing?

Attendant Care Benefits:

Is the applicant entitled to attendant care benefits in the amount of $1,704.27 per month from October 29, 2019, to date and ongoing?
Is the applicant entitled to attendant care benefits in the amount of $759.94 per month ($2,128.51 less $1,368.58 approved) from June 17, 2019, ongoing?
Is the applicant entitled to attendant care benefits in the amount of $759.93 per month from February 19, 2020, ongoing?
Is the applicant entitled to attendant care benefits in the amount of $2,128.51 per month from February 7, 2022, ongoing?

Assessments:

Is the applicant entitled to $3,390.00 for a CAT psychiatric rebuttal assessment, dated March 21, 2022?
Is the applicant entitled to $200.00 for completion of an assessment dated March 2, 2022?
Is the applicant entitled to $2,660 ($2,460 plus associated invoice of $200 not paid, from November 9, 2021) for a cognitive assessment, proposed by 101 Assessment Centre in a treatment plan dated September 24, 2019?
Is the applicant entitled to $673.25 ($3,566.28 less $2,893.03 approved) for a psychological assessment, in a treatment plan dated July 3, 2020?
Is the applicant entitled to $873.26 ($5,137.22 approved less $4,263.96 paid) for psychological services, proposed by 101 Assessment Centre?
Is the applicant entitled to the following proposed by 101 Physio Brampton, as follows:

i. $902.48 for physiotherapy, in a treatment plan dated November 22, 2019;

ii. $637.40 for physiotherapy, in a treatment plan dated November 22, 2019;

iii. $569.65 for physiotherapy ($1,660.80 approved less $1,091.15 paid) in a treatment plan dated June 18, 2019;

iv. $1,917.77 for physiotherapy ($6,710.10 less $4,792.33 paid) in a treatment plan dated October 9, 2019;

v. $6,262.48 for physiotherapy, in a treatment plan dated June 26, 2020;

vi. $4,804.36 for physiotherapy, in a treatment plan dated August 17, 2020;

vii. $4,011.06 for physiotherapy, in a treatment plan dated March 25, 2021;

viii. $4,748.68 for physiotherapy, in a treatment plan dated September 14, 2021; and

ix. $4,748.68 for physiotherapy, in a treatment plan dated July 26, 2021?

Is the applicant entitled to $995.47 for physiotherapy, proposed by 101 Physiotherapy Scarborough in a treatment plan dated February 26, 2021?

Expenses:

Is the applicant entitled to $742.40 for transportation ($1,284.80 approved less 542.40 paid), submitted on a claim form (OCF-6) dated December 30, 2019?

Other issues:

Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

4I find:

The applicant is not entitled to an IRB.
The applicant did not sustain a “CAT” impairment as a result of the accident.
The applicant is not entitled to the attendant care benefits being sought in this application.
The applicant is not entitled to the physiotherapy treatments being sought in this application.
The applicant is not entitled to the psychological treatments, or the assessments sought in this application.
The applicant is not entitled to interest as no benefits are found to be payable.
The applicant is not entitled to an award.

5The following issues that were directed to this hearing through an order of the Tribunal were withdrawn by the applicant at the start of the hearing:

i. Is the applicant entitled to $2,660.00 for a driving evaluation ($2,460 plus $200.00 in a related invoice dated November 9, 2021), in a treatment plan dated January 3, 2020?

ii. Is the applicant entitled to $2,660.00 ($2,460 plus related invoice for $200.00 dated November 9, 2021) for an EMG assessment/examination, in a treatment plan dated September 11, 2021?

iii. Is the applicant entitled to $10,202.50 for CAT assessments, in a treatment plan dated January 11, 2021?

PRELIMINARY ISSUE

ANALYSIS

The insurer is not required to pay an IRB pursuant to s.31(1)(a)(i) and s.31(1)(a)(ii) of the Schedule.

6I find that the exclusion under s. 31(1)(a)(i) applies to this application. I find for the reasons to follow that the applicant knew or ought reasonably to have known that he was operating his all-terrain vehicle (“ATV”) without automobile insurance, and he did not have a valid driver’s license.

7Section 31(1) provides that an IRB is not payable where the driver of the vehicle at the time of the accident knew or ought reasonably to have known that he or she was operating the automobile while it was not insured under a motor vehicle liability policy.

The applicant was aware that the ATV was not insured.

8Section 31(1)(a) ii, excludes the applicant from claiming an IRB if he was driving the ATV without a valid driver’s licence.

9I find that the applicant knowingly did not have a valid driver’s license when the accident occurred and therefore, he cannot claim an IRB.

The ATV is not automatically insured as set out under s. 2.2.1. of the Ontario Automobile Policy (“OAP 1”)

10The applicant argues that even if he did not secure insurance on his ATV, this vehicle is automatically insured through his spouse’s policy pursuant to s. 2.2.1. of the OAP 1. I do not agree for the reasons stated below.

11The contents of all automobile insurance policies in Ontario are mandated by regulation. The basic policy set out in the OAP 1 contains a section relating to newly acquired automobiles. There is a provision in this section that may automatically provide insurance coverage to a vehicle as long as the insurer already provides insurance on other automobiles that person owns. We have heard from the applicant, the applicant’s spouse and have a copy of the Bill of Sale that shows the applicant is the registered owner of the ATV. The applicant does not have insurance on any other vehicle and as already stated above, he cannot be insured through a policy without a valid drivers’ license, which he does not possess.

12I find from the above, that the exclusion in s, 31(1)(a) (i) & (ii) of the Schedule applies to this LAT application and as a result the applicant is barred from seeking an IRB.

SUBSTANTIVE ISSUES

ANALYSIS

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

13The applicant bears the onus of proving on the balance of probabilities that, as a result of the May 26, 2019, accident, he is catastrophically impaired under the Schedule. I find that he has not done so.

14The applicant seeks a CAT determination under Criterion 7 and Criterion 8 of the Schedule. The test for CAT impairment is a legal definition and not a medical test although the test involves consideration of medical evidence.

Positions on Criterion 7 CAT impairment

15The applicant relies on a CAT impairment summary report completed by Dr. A. Herschorn, primary care physician who concludes the applicant meets the threshold of a criterion 7 impairment with a 55% Whole Person Impairment (“WPI”). The respondent relies on a CAT assessment report by Dr. D. Mula who determined that the applicant only suffers a 37% WPI, which falls short of a 55% WPI required to be deemed CAT impaired under criterion 7.

Positions on Criterion 8 CAT impairment

16The applicant relies on the report of Dr. F. Yaroshevsky psychiatrist, who assessed the applicant and determined that he has a marked level of impairment based on mental and behaviour disorders in at least three domains of functioning, which meets the criterion 8 threshold for a CAT impairment. The respondent relies on the assessment by Dr. Philips who finds the applicant to has not sustained a marked or extreme impairment in any of the four domains of functioning and therefore he did not suffer a CAT impairment under criterion 8.

Surveillance and inconsistent reporting speak to credibility of the applicant’s testimony

17The respondent submits that the reason for the extreme differences between the findings by the applicant’s assessors and the respondent’s assessors is because the applicant has been less than truthful regarding his post-accident-related impairments in his reporting to various medical assessors. It therefore asks that I give little weight to any assessment that relies on the applicant’s reporting to form an opinion on the nature or severity of his accident-related impairments, because his accounts lack credibility.

18The respondent submits video surveillance of the applicant after the accident to support its position that the applicant has exaggerated his post accident loss of function and more importantly, the surveillance supports the findings of their assessors who opine the applicant is capable of functioning at a level that negates a finding of CAT impairment.

19The applicant explained during his testimony at the hearing, that his responses during an Examination Under Oath June 20, 2019, may have been less than accurate because he was under the influence of medication at the time. He also attributes any inconsistency in his statements to assessors to the fact that since the accident, he has unfortunately relapsed into a drug addiction which most likely has impacted his memory or ability to remember exact details.

20As much as I agree with the respondent that the applicant’s inconsistency in reporting to various assessors gives cause to doubt his reliability when it comes to his reporting his accident-related impairments, I do not find it automatically omits every statement made by the applicant. As a result, I must consider this when weighing the opinion of an assessor who relied solely on the applicant’s self-reporting to formulate an opinion or fails to reconcile self-reporting with medical evidence.

The applicant does not meet the CAT threshold under Criterion 7.

21For the reasons to follow, I find the applicant did not sustain a CAT impairment as a result of the accident under Criterion 7.

22In order to qualify under Criterion 7, the applicant must prove that he has a combination of physical and psychological impairment ratings from medical professionals that meet the 55% WPI threshold. The psychological impairment rating is determined in accordance with the methodology set out in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008 (“Guides”), and is combined with the physical WPI rating from the 4th edition of the Guides using the Combined Values Table.

23The applicant relies on the CAT impairment Executive Summary of June 14, 2021, completed by Dr. A. Herschorn, primary care physician who concludes that the applicant suffered from a combined physical and mental/behavioural WPI rating of 55%. The doctor relies on the assessment of Dr. T. Getahun, orthopaedic surgeon who rated the applicant with a physical WPI of 35% and the assessment of Dr. F. Yaroshevsky, psychiatrist who rates the applicant with a 30% WPI from a mental and behavioural perspective.

24The respondent submits the applicant suffered a combined physical and mental/behavioural WPI rating of 37%. It relies on the CAT assessments summarized in a report of February 16, 2022, by Dr. D. Mula, primary care physician. The doctor relies on the assessment of Dr. E. Urovitz, Orthopaedic surgeon who determined a rating of 19% WPI with Dr. R. Dost, Neurologist who determined a rating of 13% WPI for a total physical WPI of 30%, which is combined with the findings of Dr. N. Philips, psychiatrist, who rates the applicant with a 10% WPI from a mental and behavioural perspective.

Physical Impairment Calculations

25While the differences in the physical impairment ratings are not far apart, I have put more weight on the respondent’s evidence for reasons to follow.

26The applicant submits the assessment of Dr. Getahun who found his spinal impairment rating to be 23%, compared to the respondent’s August 9, 2021, assessment by Dr. Urovitz rating of the same impairments to be 20%. While both doctors arrived at a 3% rating for medication, Dr. Getahun determined the scarring of the applicant’s arm warrants an additional 3% impairment rating.

27Differences in their conclusions include that Dr. Getahun found the restricted motion in the applicant’s shoulder warrants an impairment rating of 11% that was not considered by the respondent’s assessors. Dr. Getahun mentions the applicant has a history of trauma and he records specific ratings related to various movement. I put lesser weight on this evidence because of the above mentioned concerned for the applicant’s reporting and the doctor fails to explain if these results are based on medical testing or the applicant’s self reporting.

28The applicant’s physical assessment by Dr. Getahun includes a recommendation for a “neurologic assessment for appropriate chapter 4, 4th Edition ratings.” No such assessment is included in the executive summary of impairment that formed the physical impairment rating. Therefore, I did not find this assessment as complete as that provided by the respondent. I preferred the report by Dr. Dost who did provide a neurological opinion for the respondent’s evidence of WPI, assigning a 10% rating for the headaches suffered by the applicant due to whiplash suffered in the accident. Dr. Dost explained, and I agree, that any testing in evidence does not show the applicant to have suffered a brain injury, whereas the applicant’s assessor makes an assumption that there was a brain injury without evidence to support same.

29Dr. Getahun testified that he had not reviewed the surveillance evidence and therefore he was to enable give his opinion as to why the applicant seemed able to physically function beyond the limits opined by him in his CAT assessment. While Dr. Dost and Dr. Urovitz viewed the surveillance evidence, both stated that this evidence does not alter the conclusions formed in their original assessments. Dr. Urovitz noted that while the surveillance evidence contradicts the applicant’s reports of his limitations such as driving, lifting or walking without assistive devices, it is supportive of his assessment derived through medical evaluation that the applicant’s physical functioning is not as impaired as the applicant reports. The surveillance evidence convinced me that the respondent’s assessments were most correct in recognizing the applicant’s functioning abilities.

Mental and Behaviour Impairment Calculations

30There is a considerable difference between the applicant’s opinion of a 30% WPI and the respondent’s opinion of a 10% WPI for mental and behavioural impairment. For reasons to follow, I am more convinced by the evidence that the respondent’s opinion is more correct.

31To obtain the WPI% rating under Chapter 14, three scales are administered by assessors to determine a person’s score which include 1) the Brief Psychiatric Rating Scale (“BPRS”), 2) the Global Assessment of Function (“GAF”), and 3) the Psychiatric Impairment Rating Scale (“PIRS”). The median score is then taken from the three scales and represents a person’s total WPI% from a psychological perspective. The assessors determined the following:

Mental and Behaviour Scale

Applicant’s Position (Dr. Yaroshevsky)

Respondent Position (Dr. Philips)

BPRS

40% WPI

10% WPI

GAF

30% WPI

10% WPI

PIRS

30% WPI

15% WPI

TOTAL WPI:

30%

10%

32Both doctors were provided with the applicant’s medical records since the date of the accident to review.

33I found Dr. Yaroshevsky’s report less convincing than that of Dr. Philips for the reasons to follow: First of all, his report is based on the self-reporting by the applicant and an assessment conducted by videoconference call. Given the findings above regarding the applicant’s credibility, I put little weight on assessments that relied on the applicant’s reporting without any reconciliation to medical or professional evidence which I find Dr. Yaroshevsky has not done, or at least failed to provide this analysis in his report.

34Dr. Yaroshevsky testified that he did not have the opportunity to review the video surveillance of the applicant but when questioned the doctor was unable to provide an explanation as to why the applicant’s functioning in the video seemingly contradicts many of his findings. For example, the video shows that the applicant can leave the house and is not agoraphobic as Dr. Yaroshevsky suggested. The video shows the applicant interacting with his family, lifting and caring for his child and interacting with a salesperson and shopping, which is again inconsistent with the restrictions in functioning Dr. Yaroshevsky opined.

35Dr. Yaroshevsky reports that the applicant did not have any prior psychological issues yet in more than one medical record provided for his review reference to the applicant seeking psychiatric help in 2016 for depression. The applicant openly admits to a relapse of a drug addiction since the accident. Unfortunately, it has been severe enough that his children and mother no longer live with him. Dr. Yaroshevsky fails to provide an opinion on the effect, if any this situation might have on the applicant’s psychological condition and This suggests to me that the doctor has not considered any other but rather attributes any condition of the applicant to be caused by impairments resulting from the accident.

36I am not persuaded by Dr. Yaroshevsky’s assessment because he has not addressed any contradictions between his findings and other evidence and again, I have determined this is necessary when there is a reliance on any self-reporting by the applicant.

37I was more convinced by Dr. Philips assessment because to begin with, he assessed the applicant in person. The doctor testified that as part of his evaluation methods, he collaborates what is reported by a patient to the medical records provided. He explained how initially, the applicant denied a pre-existing psychological issue but when Dr. Philips brought out the medical evidence of records showing otherwise, the applicant was able to confirm his past issue. Dr. Philips reviewed the video surveillance and he concluded that it supports his opinion of the applicant’s ability to function. While the applicant was walking with the assistance of a cane when he attended the doctor’s assessment, the video shows him walking without any assistive devices.

38I accept that the video surveillance is only a brief snapshot in time, but it shows the applicant’s level of functioning is more appropriately described in the findings of Dr. Philips’ report than in Dr. Yaroshevsky’s report where alleged restricted functioning is contradicted by the applicant’s movements, especially those related to his psychological ability to leave his home and interact socially.

39I find the applicant has not met his onus to prove that he meets the threshold of a CAT impairment under Criterion 7. I accept the respondent’s evidence and find that the applicant does not meet the threshold of a 55% WPI to be deemed CAT.

The applicant does not meet the CAT threshold under Criterion 8.

40I find that the applicant did not sustain a CAT impairment under Criterion 8 as a result of the May 26, 2019, accident for the following reasons.

41Impairments under Criterion 8 are assessed under chapter 14 of the Guides. Mental and behavioural impairments are rated according to how seriously the affect a person’s useful functioning. The Guides sets out the four domains or spheres of functioning and the levels of impairments as outlined 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 (“ADL”)

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”)

Adaption (In a work-like setting)

42To qualify as a CAT impairment, the applicant must suffer a Class 4 or marked impairment in three or more areas of function that significantly impedes useful functioning or a Class 5 extreme impairment in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder. The parties agree that the applicant does not suffer from a marked or extreme impairment in the domain of Concentration, Persistence and Pace (“CPP”).

43The applicant relies on a report of May 31, 2021, of Dr. Yaroshevsky who determined that he suffers a class 4 marked impairment in the three out of four spheres of functioning.

44I have already determined that I give little weight to Doctor’s Yaroshevsky’s opinion because I find he relied on the applicant’s self-reporting in key areas, and evidence shows that the applicant is not a reliable historian. The applicant’s self-reporting and recollection of his pre and post accident functioning is inconsistent with other evidence, including but not restricted to some occupational therapy reports and video surveillance, which the doctor admits he did not review.

45Dr. Yaroshevsky failed to address the applicant’s pre-accident psychological condition which included documented evidence of anxiety and depression for which the applicant received treatment. Dr. Yaroshevsky also did not address the applicant’s admitted drug addiction and how this might impact the applicant’s psychological condition.

46Dr. Yaroshevsky states “Since the collision [the applicant] has failed to function normally, emotionally and socially. This is a marked contrast to his functioning and abilities prior to the collision. There has been no alterative explanation put forward for this disturbance.” I find this statement demonstrates how Dr. Yaroshevsky’s analysis was incomplete. The doctor did not address evidence that shows the applicant had prior psychological issues; the applicant’s father for whom the applicant was providing some care, passed away since the accident; the COVID pandemic which socially isolated many persons occurred just after the accident; and the applicant has admitted to drinking more alcohol and relapsing into a methamphetamine addiction since the accident. Both the applicant’s spouse and his mother have testified to the fact that his change in behaviour is the reason the children were removed from his home and are now living with the applicant’s mother, again since the accident. I find there are several other reasons that might provide an alternative explanation for the applicant to suffer mental or behavioural issues and not function normally after the accident, especially since I am not provided any analysis by this doctor to explain how the applicant’s alleged impairments are caused by only the accident.

47Dr. Yaroshevsky diagnosed the applicant with agoraphobia because he fears public places, people, crowds, open spaces and other things that exist outside. With the video surveillance evidence, I find that the doctor’s diagnoses were, at least at the time of the video, incorrect. The video shows the applicant driving, shopping, taking his daughter out and accompanying his son to and from school. It shows him driving his mother, attending an office, shopping and loading groceries.

48Dr. Yaroshevsky states the applicant suffers a complete inability to engage in any employment and cites ongoing psychological impairments are of a magnitude that impairs his concentration. He further submits that from a psychological perspective the applicant should be considered substantially disabled with respect to employment, and he mentions impairments such as depression, anxiety, irritability and sleep issues. As there is no analysis by the doctor to show what tasks the applicant does as part of his employment or how these diagnosed psychological impairments would prevent the applicant from completing these tasks, I considered this opinion by the doctor to be derived from the applicant’s self-reporting.

49The respondent relies on report of September 14, 2021, by Dr. N. Philips, Psychiatrist, who found the applicant has not sustained a marked or extreme impairment in any of the four spheres of functioning. I preferred the report by this doctor because unlike Dr. Yaroshevsky, he actually met the applicant in person and conducted his own examination.

50I prefer Dr. Philips opinion not only because of his reconciliation of medical information to the applicant’s self-reporting, such as referencing occupational therapy assessments, medical clinical notes and records, etc., but that he takes into account the applicant’s pre-accident psychological condition. Doctor Philips has explained that the applicant’s drug and alcohol use post accident is a means to address the physical pain he is experiencing and while pain might cause the applicant to fear or restrict functioning, his pain is not a psychological reason for any restricted functioning the applicant currently reports. Finally, the video surveillance shows the applicant functioning at a level that is more in keeping with Dr. Philips’ opinion of the applicant’s functioning abilities as opposed to supporting the functioning restrictions diagnosed by Dr. Yaroshevsky.

The applicant does not have a marked impairment in at least three spheres of functioning.

51I find the applicant has failed to prove that he suffers from a Class 4 marked impairment in at least three of the four spheres of functioning and therefore is not CAT impaired under Criterion 8.

52The Guides specify that ADL functioning includes self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities: I have video evidence that the applicant is capable of using his phone, conversing with a salesperson to negotiate the sale of a Christmas tree, is capable of driving, shopping, as well as caring for his children. The applicant testified that (at the time of the hearing) he hadn’t seen an occupational therapist for about a year and that he is independent in his self-care. I find the applicant is capable of some useful function and does not meet the definition of a marked impairment in ADL.

53Social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. After reviewing the video surveillance, Dr. Philips opines the applicant’s interpersonal interaction and his awareness of the surroundings appear to be within the normal range, from a psychiatric perspective. He points out that the applicant is engaging in conversation and activity with his children, his spouse and his mother. He also interacts with a bus driver and a salesperson with appropriate and reasonable animation. The video shows that the applicant does not suffer from the psychiatric impairment of agoraphobia or a driving phobia. I cannot find from this evidence that the applicant suffers from a marked impairment in social functioning.

54Adaptation refers to the repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdrawal from the situation or experience exacerbation of signs and symptoms of a mental disorder. Adaptation is not synonymous with employability but considers stress common to most work environments, like attendance, making decisions, completing tasks and interacting with supervisors and peers. Dr. Yaroshevsky explains the definition of adaption and concludes that the applicant’s impairment in this domain is most consistent with a marked impairment. However, he fails to provide any reasons for this designation of impairment. As much as I cannot find evidence to prove a most correct designation of impairment, I can determine that the applicant has not convinced me that a marked impairment is correct, and it is his onus to do so.

55As much as I could not arrive at a correct impairment designation for the sphere of Adaptation, I have made a finding that the applicant does not have a marked impairment in the spheres of ADL and Social functioning and the parties agreed to a moderate impairment in CPP. This means the applicant does not suffer from a marked impairment in three of the four spheres and does not meet the threshold of CAT under Criterion 8.

The applicant is not entitled to Attendant Care Benefits (“ACBs”) for the period from October 2019 to date and ongoing.

56I find that the applicant has not established entitled to the ACBs in dispute.

57Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant.

58Section 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”). The applicant is seeking payment or partial payment ACBs from June 17, 2019, to date. The applicant has submitted the following Form-1s for ACBs that have been denied and are the subject of this application:

i. $2,128.51 per month for ACB from June 17, 2019, to date and ongoing recommended by Wellness and Home Care. The applicant is seeking $759.54 per month ($2,128.51 less approved amount of $1,368.58) for this period in dispute.

ii. $1,704.27 per month for ACB from October 29, 2019, to date and ongoing recommended by Wellness and Home Care.

iii. $759.93 per month for ACB from February 19, 2020, to date and ongoing recommended by 101 Assessments.

iv. $2,128.51 per month for ACB from February 7, 2022, to date and ongoing recommended by 101 Assessments.

59The applicant argues that an ACB should be deemed reasonable and necessary because of the level of impairment sustained by the applicant in the accident. He relies on the February 12, 2020, assessment by Ms. N. Kharamtsova, a nurse employed by 101 Assessments, who completed a Form-1 stating ACB’s were reasonable and necessary, based on her testing and the applicants reporting of pre- and post-accident functioning.

60The applicant testified that he was receiving attendant care from a personal support worker (“PSW”), and he has not submitted bills for this service. He also testified that his spouse Ms. Velos and his mother Ms. Jackson assisted him with his care needs. Both Ms. Velos and Ms. Jackson testified that when they assisted the applicant neither of them suffered any economic loss. Each of them testified to the fact that they were aware of a PSW visiting their home, but neither they or the applicant could provide details of that person’s name, dates he provided service or what service he provided and the amount(s) he charged. I therefore find the applicant has not proven any ACB is payable for the PSW or family assistance.

61The respondent was paying the applicant an ACB of $613.31 per month based on an assessment of March 2, 2020, by J. Duong, OT. On March 13, 2020, Mr. Duong was asked to review video surveillance evidence showing the applicant’s movements from December 2019 to February 2020 and compare it to his March 2nd report. Mr. Duong noted some inconsistencies demonstrated by the applicant in the video compared to his responses to testing during the OT assessment. He makes references to how the applicant, during his assessment would move slowly and grimace while being assessed for range of motion (“ROM”) and functional movements, yet in the video, the applicant demonstrated the fluid movements and the ability to lift, bend, carry and reach without any apparent difficulties. Regarding his review of video Mr. Huong states: “….inconsistences call into question this claimant’s ability to accurately perceive, demonstrate, or report his functional tolerances.” He then suggests an updated OT assessment with a Form 1 to determine the applicant’s functional abilities and need for attendant care. In response to this, the respondent arranged the assessment of the applicant by Ms. Maddix.

62The respondent had paid ACBs following the accident until August 28, 2020, when it terminated ACBs based on an assessment of August 18, 2020, by Ms. S. Maddix, OT who determine ACB was no longer required. I find the report of Ms. Maddix which includes testing and analysis along with her review of the video surveillance is convincing that ACBs are not reasonable or necessary as she has not solely relied on the self-reporting of the applicant. The applicant has not provided any reply evidence regarding Ms. Maddix’s report.

63Considering the above, I find the applicant has not met his burden to prove that ACBs in dispute were incurred or that they are reasonable or necessary. Therefore the applicant is not entitled to payment.

The applicant is not entitled to the Assessments, Treatment Plans (“OCF-18”s) in dispute.

64The applicant has not demonstrated that the treatment plans in dispute whether a partial balance that remains outstanding or in full are reasonable and necessary as a result of the accident.

65To be entitled to a treatment plan under ss. 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. The applicant should identify treatment goals, how these goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

The applicant has not proven that $6,923.25 for assessments is reasonable and necessary.

66The applicant has submitted the following OCF-18’s that have been denied and are included in this application:

i. $3,390.00 for a CAT psychiatric rebuttal assessment, dated March 21, 2022.

ii. $200.00 for the completion of an assessment dated March 2, 2022.

iii. $2,660.00 for a cognitive assessment proposed by 101 Assessment Centre in a plan dated September 24, 2019.

iv. $673.25 ($3,566.28 less approved amount of $2,893.03) for a psychological assessment, in a plan dated July 3, 2020.

67The onus is on the applicant to prove that these assessments are reasonable and necessary. The applicant has failed to meet this onus as he has not made submissions regarding these assessments, therefore I cannot find the applicant is entitled to payment.

The applicant has not proven that $873.26 for psychological services is reasonable and necessary.

68The applicant has submitted the following OCF-18 that has been denied and is the included in this application:

i. $873.26 ($5,137.22 less approved amount of $4,263.96) for psychological services proposed by 101 Assessment Centre.

69The applicant made no submissions on this plan so there is no basis for me to determine if the respondent is liable to pay for this plan related to psychological services.

The applicant has not proven that $29,598.03 for physiotherapy services is reasonable and necessary.

70The applicant has submitted the following OCF-18’s that have been denied and is the included in this application:

Proposed by 101 Physio Brampton: