Citation: Raman v. Certas Home and Auto Insurance Company, 2024 ONLAT 23-000115/AABS

Licence Appeal Tribunal File Number: 23-000115/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:

Arvind Raman

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ludmilla Jarda

APPEARANCES:

For the Applicant:

Arvind Raman, Applicant Adam Moftah, Counsel

For the Respondent:

Norma Barron, Counsel

Heard by videoconference:

April 8, 9, 10, 11, 12, 15, 16, and 17, 2024

OVERVIEW

1Arvind Raman (the “applicant”) was involved in an automobile accident on March 19, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Certas Home and Auto Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant seeks a determination that he is catastrophically impaired as a result of the accident. Given that he has exhausted the non-catastrophic impairment policy limit for medical and rehabilitation benefits and for attendant care benefits (“ACB”), the applicant must be found to have sustained a catastrophic impairment as a result of the accident to be entitled to the disputed treatment plans and ACB.

3The applicant further seeks entitlement to income replacement benefits (“IRB”) beyond 104-weeks after the accident. The applicant must be found to have sustained a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience to be entitled to IRB.

ISSUES

4The issues in dispute are:

1. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
2. Is the applicant entitled to IRB in the amount of $325.20 per week from December 18, 2020 to date and ongoing?
3. Is the applicant entitled to $3,160.57 for occupational therapy services, proposed by Alliance Diagnostics and Treatments Inc. in a treatment plan/OCF-18 (“treatment plan”) dated August 5, 2021?
4. Is the applicant entitled to $1,417.50 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan dated September 15, 2022?
5. Is the applicant entitled to $1,417.70 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan dated October 27, 2022?
6. Is the applicant entitled to $2,175.91 for psychological assessment, proposed by Alliance Diagnostics and Treatments Inc. in a treatment plan dated October 20, 2022?
7. Is the applicant entitled to $2,200.00 for a social work assessment, proposed by iScope Concussion and Pain Centers in a treatment plan dated September 2, 2021?
8. Is the applicant entitled to $23,236.80 for a catastrophic impairment assessment, proposed by Alliance Diagnostics and Treatments in a treatment plan dated September 21, 2021?
9. Is the applicant entitled to ACB in the amount of $2,359.34 per month from July 10, 2021 to date and ongoing?
10. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5For the reasons that follow, I find that:

1. The applicant is not catastrophically impaired.
2. The applicant is not entitled to IRB.
3. The applicant is not entitled to ACB.
4. The applicant is not entitled to the disputed treatment plans.
5. The applicant is not entitled to interest.

PROCEDURAL ISSUE

6The applicant requests to rely on three old photos of himself from his Instagram account that have not previously been disclosed. He submits that these photos are important as they speak to his functionality before the accident. The applicant acknowledges that the three photos are being produced late and states that they were recently brought to his attention.

7The respondent opposes the applicant’s request. It notes that the three photos were not disclosed in accordance with the timelines to exchange documents, nor were they included in the applicant’s hearing brief.

8In the circumstances, I am not prepared to consider the applicant’s late-produced photos.

9The parties agreed to a timeline to exchange documents for the hearing. The agreed upon timelines were to ensure that the parties had a fair hearing, that the parties know the case they need to meet, and that no party was surprised by last minute evidence at the hearing. The evidence on which the applicant seeks to rely was produced for the first time on the morning of the hearing.

10It was the applicant’s obligation to comply with the Tribunal’s order, and he failed to do so. Per Rule 9.3 of the Licence Appeal Tribunal Rules, without the Tribunal’s permission, the applicant cannot rely on these photos.

11I am not persuaded by the applicant’s reason for not complying with the Tribunal’s order. While the applicant argues that these photos were recently brought to his attention, given that these late produced photos are of the applicant and found on his Instagram account, I find that the existence of these photos were known to the applicant and that he failed to make disclosure as required by the Tribunal.

12Accordingly, the applicant’s late produced photos will not be included in the evidentiary record.

ANALYSIS

Background

13On March 19, 2018, the applicant was stopped at a red light at the intersection of Dixie Road and Eastgate Parkway in Mississauga, Ontario when he was rear ended by another vehicle.

14According to the Emergency Record dated March 19, 2018, following the accident, the applicant attended the Mississauga Hospital with minor accident-related complaints. He reported experiencing back, shoulder, and right wrist pain, and a headache. Diagnostic imaging of his right wrist was unremarkable. Physiotherapy was recommended, and the applicant was given a medical note to take time off work until March 22, 2018.

15The following day, the applicant consulted his family physician, Dr. Sarjur Batavia and complained of right-side lower back pain, a stiff neck, and a headache. Dr. Batavia diagnosed the applicant with a whiplash injury. Physiotherapy and massage therapy was recommended, and the applicant was given a medical note to take time off work until April 2, 2018.

16The applicant did not consult Dr. Batavia from April 2018 to January 2020; however, during this period of time, he underwent physical therapy at Activia Clinics and Parkside Village Therapy. He also underwent psychological assessments at Pilowsky Psychology Professional Corporation.

17According to a psychological report dated December 21, 2018 completed by Dr. Sandra Sagrati, psychologist, the applicant was diagnosed with post-traumatic stress disorder and major depressive disorder (recurrent episode, moderate) as a result of the accident. When the applicant was re-assessed in October 2019, Dr. Judith Pilowsky, psychologist, concluded that the applicant suffered from post-traumatic stress disorder, major depressive disorder (recurrent episode, severe), and somatic symptom disorder with predominant pain (persistent, moderate) as a result of the accident.

18The applicant submitted an Application for Determination of Catastrophic Impairment (OCF-19) dated January 21, 2021 completed by Dr. Batavia and sought a catastrophic impairment determination under Criteria 7 and 8. The applicant also submitted an OCF-19 dated March 6, 2023 completed by Dr. Tajedin Getahun, orthopaedic surgeon, and sought a catastrophic impairment determination under Criteria 6 and 7. As no assessor found that the applicant was catastrophically impaired under Criteria 6 and 8, only Criterion 7 is in dispute.

Catastrophic Impairment Determination

19The applicant bears the onus of proving, on a balance of probabilities, that as a result of the accident, he is catastrophically impaired under the Schedule. I find that he has not done so.

20The test to determine whether the applicant is catastrophically impaired is a legal test and not a medical one. The criteria to establish a catastrophic impairment are found under s. 3.1(1) of the Schedule. In this case, the applicant claims that he is catastrophically impaired under Criterion 7 because he suffers a whole person impairment (“WPI”) of 55% or more from the combined score of his mental or behavioural impairment with his physical impairments.

21To 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 in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, and is combined with the physical WPI rating from the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (“Guides”) using the Combined Values Table. An impairment percentage derived by means of the Guides is intended to represent an informed estimate of the degree to which an individual’s capacity to carry out daily activities has been diminished.

22The applicant relies on the multi-disciplinary catastrophic impairment reports of his s. 25 assessors including an orthopaedic assessment report dated September 17, 2022 completed by Dr. Getahun, a functional abilities evaluation report dated September 20, 2022 completed by Dr. Nabeel Syed, chiropractor, a neurology assessment report dated September 30, 2022 completed by Dr. Andrew Gomez-Vargas, neurologist, an occupational therapy in-home assessment report and an occupational therapy situational assessment report both dated November 1, 2022 and both completed by Varun Madan, occupational therapist, a psychiatry assessment report dated December 21, 2022 completed by Dr. Anson Liu, psychiatrist, and a temporomandibular joint assessment report dated September 23, 2022 completed by Dr. Leon Treger, general dentist. Dr. Syed completed the executive summary, concluded that the applicant sustained a WPI of 70%, and therefore meets the catastrophic impairment threshold.

23The respondent disagrees and relies on the multi-disciplinary catastrophic impairment reports of its s. 44 assessors including a physiatry evaluation report completed by Dr. Shariff Dessouki, physiatrist, a psychiatric evaluation report completed by Dr. Velan Sivasubramanian, psychiatrist, and an occupational therapy assessment report completed by Loreta Stanulis-Duz, occupational therapist all dated October 5, 2021. Dr. C. Bruce Paitich, orthopaedic surgeon, completed the executive summary, concluded that the applicant sustained a WPI of 29%, and therefore does not meet the catastrophic impairment threshold.

24The chart below provides a summary of both parties’ assessors’ rating and the Tribunal’s findings regarding Criterion 7. My analysis will primarily focus on the impairment ratings that were in dispute between the parties.

Impairment	Applicant’s WPI%	Respondent’s WPI%	Tribunal’s Finding
Physical
Upper Extremity Impairment (right shoulder and right grip strength)	24%	0%	0%
Lower Extremity Impairment (right knee patellofemoral crepitus)	2%	0%	2%
Spine	15%	10%	10%
Sleep Impairment	9%	0%	0%
Dizziness	9%	0%	0%
Sexual Impairment	9%	0%	0%
Headaches	10%	0%	0%
Temporomandibular Joint Impairment	11%	0%	11%
Medication	3%	1%	3%
Total Physical WPI%	62%	11%	24%
Mental and Behavioural
Total Mental & Behavioural WPI%	20%	20%	20%
Total Combined Ratings
Total WPI%	70%	29%	39%

Upper Extremity Impairment

25With respect to the right shoulder, per Section 3.1j of Chapter 3 of the Guides, under Shoulder, a WPI% rating is permitted for impairments due to abnormal shoulder motions (flexion and extension, abduction and adduction, internal and external rotation).

26With respect to the right grip strength, per Section 3.1m of Chapter 3 of the Guides, under Impairment Due to Other Disorders of the Upper Extremity, in rare cases, a WPI% rating is permitted for loss of grip strength. Further, per page 64 of Chapter 3 of the Guides, under Strength Evaluation, because strength measurements are functional tests influenced by subjective factors that are difficult to control, and the Guides for the most part is based on anatomic impairment, the Guides do not assign a large role to such measurement.

27The upper extremity ratings for the right shoulder and right grip strength are combined in accordance with Table 3 of Chapter 3 of the Guides, under Relationship of Impairment of the Upper Extremity to Impairment of the Whole Person, to calculate the WPI% rating.

28The applicant relies on Dr. Syed’s 24% WPI for upper extremity impairment. Dr. Syed combined Dr. Getahun’s 14% upper extremity rating for the right shoulder, and his 30% upper extremity rating for the right grip strength, resulting in a 40% upper extremity impairment. Using Table 3 of Chapter 3 of the Guides, a 40% upper extremity impairment results in a 24% WPI.

29With respect to the right shoulder, the applicant reported pain and stiffness in his right shoulder. Dr. Getahun physically examined the applicant’s shoulder and noted limited range of motion in all shoulder motions. He diagnosed the applicant with a right shoulder strain with element of adhesive capsulitis. Dr. Getahun concluded that a 14% upper extremity rating for his right shoulder was warranted.

30With respect to the right grip strength, Dr. Syed conducted the assessment. His testing revealed diminished right grip strength warranting a 30% upper extremity rating.

31The respondent relies on Dr. Paitich’s 0% WPI for upper extremity impairment. Dr. Paitich assigned this rating based on Dr. Dessouki’s finding that the applicant’s shoulder, right elbow, right hand, and wrist ranges of motion were self-limited on physical examination and that it was not felt to be an accurate representation of true mobility. The applicant also demonstrated a lack of effort during right shoulder and grip strength testing when he was assessed by Ms. Stanulis-Duz. Like Dr. Dessouki, Ms. Stanulis-Duz noted that the applicant provided sub-maximal effort and his physical testing was inconsistent with her informal observations of the applicant’s functional abilities.

32I find that assigning a rating of 0% WPI for upper extremity impairment is appropriate. I accept Dr. Dessouki’s and Ms. Stanulis-Duz’s findings that the applicant shoulder motions were self-limiting on physical examination. The applicant’s shoulder motions were assessed by various assessors, including but not limited to Dr. Getahun, Dr. Gomez-Vargas, Dr. Syed, Mr. Madan, Dr. Dessouki, and Ms. Stanulis-Duz, and the applicant’s range of motion varies from one assessor to another per the table below. Of note, Dr. Getahun, Dr. Gomez-Vargas, and Dr. Syed all assessed the applicant on September 16, 2022.

Right Shoulder Movements (in degrees)	Flexion	Extension	Abduction	Adduction	Internal Rotation	External Rotation
Dr. Getahun	140	30	80	30	30	60
Dr. Gomez-Vargas	110	50	160	30	60	70
Dr. Syed	25-50	25-50	25-50	25-50	25-50	25-50
Mr. Madan	170-180	50-60	170-180	N/A	60-100	80-90
Dr. Dessouki	30	10	30	10	60	15
Ms. Stanulis-Duz	75	50	70	50	90	90
Normal Range of Motions	180	50	180	50	90	90

33Further, I do not accept Dr. Syed’s rating for right grip strength. Although Dr. Syed’s testing noted a loss of grip strength, when similar testing was carried out by Ms. Stanulis-Duz, the applicant provided sub-maximal effort during testing, inconsistent with informal testing. Ms. Stanulis-Duz observed the applicant grasping a water bottle, handrail, door handles, and the back of a chair which demonstrated that he had functional bilateral grip strength. Given the inconsistent subjective factors at play, I am not persuaded by the applicant’s evidence that a WPI% rating is warranted.

Lower Extremity Impairment

34Per Table 62 of Chapter 3 of the Guides, under Arthritis Impairments Based on Roentgenographically Determined Cartilage Intervals, a rating of 2% is permitted for the patellofemoral joint for a patient with a history of direct trauma, a complaint of patellofemoral pain, and crepitation on physical examination, but without joint space narrowing on roentgenograms.

35The applicant relies on Dr. Syed’s 2% WPI for lower extremity impairment. Dr. Syed assigned this rating based on Dr. Getahun’s findings. When Dr. Getahun examined the applicant’s lower extremities, he noted that the right knee had patellofemoral crepitus on compression.

36The respondent initially relied on Dr. Paitich’s 0% WPI for lower extremity impairment; however, following Dr. Dessouki’s testimony, the respondent accepted Dr. Getahun’s 2% WPI rating. On examination, Dr. Dessouki acknowledged that he did not examine the applicant’s right knee due to guarding. As a result, he was unable to assess the applicant for crepitus.

37I find that assigning a rating of 2% WPI for lower extremity impairment is appropriate. Dr. Getahun found crepitus when he physically examined the applicant, and the respondent has accepted this finding.

Spine

38With respect to the spine, both Dr. Syed and Dr. Paitich agree on the impairment ratings for the cervicothoracic spine (5% WPI) and the lumbosacral spine (5% WPI). Where the assessors disagree is whether to assign a 5% WPI rating for the thoracolumbar spine.

39Per Table 74 of Chapter 3 of the Guides, under DRE Thoracolumbar Spine Impairment, a rating of 5% is permitted for a minor impairment. A minor impairment means clinical signs of a thoracolumbar injury are present without radiculopathy or loss of motion segment integrity.

40The applicant relies on Dr. Syed’s 5% WPI for the thoracic spine. Dr. Syed assigned this rating based on Dr. Getahun’s findings. Dr. Getahun examined the applicant’s thoracic spine and noted that there were no abnormal contours, and that there was tenderness in the parathoracic musculature on the right side. Dr. Getahun concluded that the applicant’s history and findings were compatible with a specific injury to the thoracic spine warranting a WPI% rating.

41The respondent relies on Dr. Paitich’s 0% WPI for the thoracic spine. Dr. Paitich testified that Dr. Getahun did not identify any of the criteria to generate a 5% WPI rating for the thoracic spine. Dr. Getahun’s comments relate to pain, which does not generate its own rating under Chapter 15 of the Guides.

42I find that assigning a rating of 0% WPI for the thoracic spine is appropriate. Both Dr. Getahun and Dr. Dessouki agreed that the applicant sustained a strain injury to his thoracic spine. Further, the applicant has not directed the Tribunal to any evidence to support that he suffers from a minor impairment to the thoracolumbar spine as described in Section 3.3i of the Guides. There is no evidence in Dr. Getahun’s report to support significant, intermittent, or continuous muscle guarding, nonuniform loss of range of motion, or nonverifiable radicular complaints.

Sleep Impairment

43Per Table 6 of Chapter 4 of the Guides, under Impairment Criteria for Sleep and Arousal Disorders, a rating between 1-9% is permitted for sleep impairment resulting in reduced daytime alertness with sleep pattern such that the individual can carry out most daily activities.

44The applicant relies on Dr. Syed’s 9% WPI for sleep impairment. Dr. Syed assigned this rating based on Dr. Liu’s finding that the applicant suffers from an insomnia disorder. Also, as indicated in Dr. Liu’s report, the applicant attributes his disrupted sleep to pain, depression, anxiety, and accident-related nightmares.

45The respondent relies on Dr. Paitich’s 0% WPI for sleep impairment. Dr. Paitich testified that per the Guides, when a sleep disorder arises from mental and behavioural factors, the WPI% rating should be evaluated according to the Guides chapters that deal with mental and behavioural impairments. In the present case, given that the applicant attributes his sleep disorder to depression, anxiety, and accident-related nightmares and that Dr Liu has already assigned a WPI% rating for the applicant’s mental and behavioural impairments, to assign a rating for sleep impairment in the circumstances would amount to double counting. Further, Dr. Paitich stated that per Chapter 15 of the Guides, under Basic Assumptions, pain is assumed in impairment ratings in the Guides, and as such, there is no need to rate pain separately.

46I find that advancing a rating of 0% WPI for sleep impairment is appropriate. I prefer Dr. Paitich’s rating as it is consistent with the methodology outlined in the Guides for assigning ratings.

Dizziness

47Per Table 11 in Chapter 4 of the Guides, under Impairment Criteria for Cranial Nerve VIII (Auditory Nerve), a rating between 1-9% is permitted for dizziness when minimal impairment of equilibrium exists, with limitation required only of activities in hazardous surroundings.

48The applicant relies on Dr. Syed’s 9% WPI rating for dizziness. Dr. Syed assigned this rating based on his functional abilities evaluation report where he noted that the applicant was experiencing symptoms of dizziness, tinnitus, sensitivity to light and sound, blurry vision, and temporomandibular joint pain. He relies on Mr. Madan’s report indicating that the applicant experiences intermittent dizziness when performing sit to stand/lying to sit transfers, and with prolonged standing. He relies on Dr. Treger’s report indicating that the applicant reports experiencing dizziness (vertigo), and light-headedness occurring with changes of body movement. He also relies on Dr. Gomez-Vargas’ report indicating that the applicant reports ongoing dizziness induced by postural changes.

49The respondent relies on Dr. Paitich’s 0% WPI rating for dizziness. Dr. Paitich testified that dizziness is a symptom, not a diagnosis, and there is no evidence of an anatomic or physiological abnormality related to dizziness. In the absence of a diagnosis, there is no basis for a rating under the Guides.

50I find that advancing a rating of 0% WPI for dizziness is appropriate. Although Dr. Gomez-Vargas testified that the applicant’s dizziness is related to his post-concussion syndrome, Dr. Syed did not rely on this evidence when assigning a 9% WPI rating. Rather, the applicant’s rating was based on dizziness induced by postural changes. Further, on examination, Dr. Gomez-Vargas acknowledged that he did not assess the applicant in hazardous surroundings. As such, there is no evidence to support that the applicant suffers from a minimal impairment of equilibrium with limitation required only of activities in hazardous surroundings.

Sexual Impairment

51Per Table 19 in Chapter 4 of the Guides under Sexual Impairment Criteria, a rating between 1-9% is permitted for sexual impairment when sexual functioning is possible but with difficulty of erection or ejaculation in men or lack of awareness, excitement, or lubrication in either sex.

52The applicant relies on Dr. Syed’s 9% WPI rating for sexual impairment. Dr. Syed assigned this rating based on Dr. Liu’s report where he noted that the applicant reports having a low libido. The applicant also relies on the opinion of Dr. Gomez-Vargas who testified that the applicant’s post-concussion symptoms, chronic pain disorder, and the side effects of his medication can impair his sexual performance and function.

53The respondent relies on Dr. Paitich’s 0% WPI rating for sexual impairment. Dr. Paitich testified that there was no evidence to support that the applicant suffers from a sexual dysfunction, and he noted that the applicant has not been assessed by a urologist regarding any sexual dysfunction. Dr. Paitich also stated that having a low libido is a symptom as opposed to a diagnosed impairment. The respondent further denies that the applicant suffers from a sexual impairment as the applicant was sexually active a couple weeks following the accident and in April 2018, he was treated by Dr. Batavia for a sexually transmitted infection.

54I find that advancing a rating of 0% WPI for sexual impairment is appropriate. Although the applicant reported having a low libido, there is no evidence to support that the applicant was diagnosed with a sexual dysfunction. Further, although Dr. Gomez-Vargas testified that the applicant’s sexual performance was impacted by his post-concussion symptoms, his chronic pain disorder, and the side effects of his medication, I place limited weight on this evidence as it does not support that the applicant experiences difficulty of erection or ejaculation or that he has a lack of awareness, excitement, or lubrication.

Headaches

55Per Table 23 in Chapter 4 of the Guides under Impairments of Spine Nerves in the Head and Neck Region, a rating of 5% is permitted for an impairment of the greater occipital nerve due to sensory deficit, pain, or discomfort. If there is bilateral involvement, the WPI estimates for the nerves on the two sides should be combined. The final WPI estimate depends on the severity of the abnormality, and the classification and procedure of Table 20 or 21 should be used to determine the estimate.

56The applicant relies on Dr. Syed’s 10% WPI rating for headaches. Dr. Syed assigned this rating based on the findings of Dr. Lance B. Majl (per his neurology assessment report dated October 23, 2020), Dr. Treger, and Dr. Gomez-Vargas. Dr. Majl concluded that the applicant suffers from post-traumatic headaches that are partly due to cervicogenic headaches resulting from damage to the C1-3 facets joints, periosteum, and ligaments, or trauma to the greater occipital nerves. Dr. Treger found that the applicant suffers from tension headaches that are non-migrainous in nature and are myogenic and cervicogenic in origin. Dr. Gomez-Vargas found that the applicant has developed post-traumatic headaches in the form of cervicogenic headaches.

57The respondent relies on Dr. Paitich’s 0% WPI rating for headaches. Dr. Paitich testified that although several assessors commented on the applicant’s headaches, they all indicated that the applicant’s headaches are cervicogenic and therefore stem from the neck. Dr. Paitich further noted that none of the applicant’s assessors examined the occipital nerves. Indeed, the only catastrophic impairment assessor that examined the occipital nerves was Dr. Dessouki, and his examination did not reveal an impairment to the occipital nerves. Dr. Paitich found that there was no justification for a WPI% rating for headaches in the circumstances.

58I find that assigning a 0% WPI rating for headaches is appropriate as there is insufficient evidence to support that the applicant’s headaches stem from trauma to the greater occipital nerves. Dr. Majl did not conclusively find that the applicant’s headaches were related to the occipital nerves. Further, while Dr. Gomez-Vargas concluded that the applicant’s cervicogenic headaches had migrainous features, Dr. Teger noted that the headaches were non-migrainous in nature. Also, none of these assessors examined the applicant’s occipital nerves.

59Additionally, the only assessors who examined the applicant’s occipital nerves were Dr. Syed Hossein Hosseini, physiatrist (per his physiatry report dated November 10, 2020), and Dr. Dessouki. When Dr. Hosseini examined the applicant on September 24, 2020, he noted that the Tinel’s test was positive at the greater occipital nerve region on the right side, and he assessed the applicant with chronic right-sided post-traumatic headaches, questionable cervicogenic/occipital neuralgia, with migrainous features. However, when Dr. Dessouki examined the applicant on April 13, 2021, Tinel’s over greater occipital nerves was negative bilaterally. As such, there is insufficient evidence to support an impairment to the bilateral greater occipital nerves.

Temporomandibular Joint Impairment

60Per Table 6 in Chapter 9 of the Guides under Relationship of Dietary Restrictions to Permanent Impairment, a rating of 5-19% is permitted when impairments of mastication and deglutition restrict a diet to semisolid or soft foods. Dysfunction of the temporomandibular joint (“TMJ”) may impede mastication.

61The applicant relies on Dr. Syed’s 11% WPI rating for TMJ impairment. Dr. Syed assigned this rating based on Dr. Treger’s diagnosis. Dr. Treger diagnosed the applicant with anterior disc displacement without reduction on the left and right sides, capsulitis of the TMJ, joint stiffness on the right and left sides, and pain in jaw on the right side. He concluded that the applicant sustained injuries to the intraoral/dental structures which resulted in painful function of mastication of food and compromised digestive function. Further, he noted that the applicant’s diet is limited to semi-solid and soft foods due to accident related TMJ pain.

62In response, the respondent submits that the Tribunal should draw an adverse inference on the applicant’s evidence for failing to call Dr. Treger as a witness.

63I find that advancing an 11% WPI for TMJ impairment is appropriate. The respondent has not tendered any competing dental assessment to address the applicant’s TMJ impairment, and since dentistry is beyond the scope of his experience, Dr. Paitich did not provide a rating for this impairment.

64Further, I am not prepared to draw an adverse inference on the applicant’s evidence for not calling Dr. Treger as a witness. Pursuant to s. 15(1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, the Tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in court any document or thing relevant to the subject-matter of the proceeding and may act on such evidence. I find that Dr. Treger’s report is relevant to the issue of a catastrophic impairment determination and that an adverse inference is not warranted in the circumstances.

65Moreover, in the absence of any competing evidence, I accept Dr. Treger’s finding that the applicant suffers a TMJ impairment that results in an 11% WPI rating.

Medication

66Per page 9 of Chapter 2 of the Guides, under Adjustments for Effects of Treatment or Lack of Treatment, a rating between 1% and 3% WPI is permitted for medication use and any reduced symptoms as a result of medication use.

67The applicant relies on Dr. Syed’s 3% WPI rating for adjustments for the effects of medication. Dr. Syed assigned this rating based on Dr. Getahun’s report where he noted that the applicant was on multiple medications provided by his family physician, taking amitriptyline, topical CBD, and smoking marijuana for pain management, and he concluded that due to the chronicity of the applicant’s symptomology and his persistent use of medication, a 3% WPI is appropriate. On examination, Dr. Getahun further justified the higher rating on the basis that despite taking medication, the applicant continues to experience pain to his back, shoulder, knee, ankle, and wrist.

68The respondent relies on Dr. Paitich’s 1% WPI rating for adjustments for the effects of medication. Dr. Paitich assigned this rating based on Dr. Dessouki’s report where he notes that following the accident, the applicant started using cyclobenzaprine, fluoxetine, and CBD oil, and he reported experiencing side effects of nausea and decreased appetite from his current medication regimen. In light of Dr. Dessouki’s comments, Dr. Paitich assigned a rating of 1% WPI. Although Dr. Dessouki later testified on cross-examination that while he previously agreed with Dr. Paitich’s 1% WPI rating, looking back, he may have given the applicant the benefit of the doubt and given him a 3% WPI rating instead. Dr. Paitich was not recalled, and as a result, he did not have the opportunity to consider Dr. Dessouki’s proposed increased rating.

69On examination, Dr. Paitich further found that Dr. Getahun’s report lacked sufficient commentary to support a higher rating as he does not identify what, if any, side effects the applicant experiences as a result of the medication. Dr. Paitich found that the applicant’s nausea was indicative of an impairment to the upper digestive tract. Per Table 2 in Chapter 10 of the Guides a rating is permitted when symptoms or signs of upper digestive tract disease are present, or there is anatomic loss or alteration. However, given that the applicant does not require continuous treatment and that there is no evidence to suggest that the applicant is losing weight as a result of his nausea, suggesting that the applicant’s weight can be maintained at a desirable level, a higher rating is not warranted.

70I find that advancing a 3% WPI for medication is appropriate as the applicant continues to medicate to alleviate his accident-related pain and he experiences nausea and loss of appetite as a result of the medication. Further, in light of Dr. Dessouki’s proposed increased WPI% rating, I afford the applicant the benefit of the doubt and accept the increased rating.

The applicant does not meet the catastrophic impairment threshold under Criterion 7

71When the Tribunal combines the WPI% ratings for lower extremity impairment (2%), spine (10%), TMJ impairment (11%), and medication (3%) using the combining charts on page 322 of the Guides, this gives a total physical rating of 24% WPI. Further, when the total physical rating of 24% WPI is combined with the mental and behavioural rating of 20% WPI using the combined values chart it results in 39% WPI and rounded up or down to the nearest 0 or 5 it becomes 40% WPI. This value of 40% WPI does not meet the 55% WPI threshold for a catastrophic impairment under Criterion 7.

72Accordingly, I find that the applicant has failed to establish on a balance of probabilities that he sustained a catastrophic impairment.

Income Replacement Benefits (“IRB”)

73To receive payment for post-104-week IRB under s. 5 of the Schedule, the applicant must demonstrate on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience. The applicant bears the burden of proving, on a balance of probabilities, that he meets the test.

74In terms of the applicant’s education, he graduated from high school in 2014. From Fall 2014 to 2017, he attended at the University of Toronto and was studying to obtain a Bachelor of Arts Degree in International Development Studies with a double minor in Human Geography and Sociology. However, he performed poorly. Indeed, he was on academic probation in Winter 2016 with a GPA of 1.5, and he was suspended for four months in Fall 2016 with a GPA of 1.2. The applicant did not complete the requirements to obtain his Bachelor of Arts degree.

75As for the balance of the applicant’s training and experience, the applicant’s pre-accident employment history includes working as a food and beverage server for a variety of restaurants for short periods of time, working as a sales representative for a luxury clothing store for a few weeks, and working as a non-certified personal trainer.

76At the time of the accident, the applicant was 22 years old and was employed as a sales representative with Dr. Green Services Inc. In this role, he sold lawncare and landscaping packages to residential and commercial clients. Following the accident, he took time off work for a couple of weeks and then returned to work until June 25, 2018. The applicant subsequently travelled to India for several months; however, the exact timeframe for his travels is unknown.

77Since June 2018, the applicant has made two attempts to return to work. First, in October 2018, the applicant obtained part-time employment as a server at a restaurant called “At Home”. In this role, he was required to stand for long periods of time, while carrying heavy trays of food and beverages. Second, in December 2019, the applicant obtained employment as a sales representative at Hostopia/Deluxe Sales. In this role, he sold web design, hosting packages, online marketing to customers, and explained the type and cost of services offered.

78In terms of any income replacement assistance, based on the applicant’s income tax returns, in 2019, the applicant received employment insurance and other benefits. Further, based on Dr. Batavia’s clinical note dated February 10, 2020, the applicant reported that he had been off work since January 21, 2020 due to back pain, headaches, and anxiety, and he requested that Dr. Batavia complete an Attending Physician Statement in support of his application for benefits from Manulife. The applicant denies that he received benefits from Manulife.

79The applicant submits that he is entitled to IRB at the rate of $325.20 per week from December 18, 2020 to date and ongoing. The applicant relies on the catastrophic impairment reports of Dr. Liu and Mr. Madan as they addressed the applicant’s ability to work when they assessed his ability to work under Criterion 8. The applicant argues that he is unable to return to work due to his cognitive difficulties and psychological impairment.

80In response, the respondent denies that the applicant suffers from a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience and submits that the applicant has not met his burden of proof. The applicant did not produce any employment files, and as such, there is no evidence from his employers that he is unable to work. Further, based on the applicant’s income tax returns, in 2020, he earned more than triple his pre-accident income.

81The respondent relies on various reports of its s. 44 assessors including a psychiatry assessment report dated November 10, 2020 and two psychiatry addendum paper review dated January 13, 2021 and February 2, 2021 respectively, all completed by Dr. Robert Weinstein, psychiatrist, a physiatry assessment report dated November 10, 2020 and a physiatry addendum paper review dated January 13, 2021, both completed by Dr. Seyed Hossein Hosseini, physiatrist, a vocational evaluation with transferable skills analysis report and a labour market survey, both dated November 10, 2020 and completed by Kelly Ann Smith, certified vocational evaluation specialist, and a functional abilities evaluation report dated November 10, 2020 completed by Zinnia Lee, physiotherapist.

The applicant is not entitled to IRB for the period of December 18, 2020 to date and ongoing at the rate of $325.20 per week

82I find that the applicant has not proven, on a balance of probabilities, that he is entitled to IRB for the period of December 18, 2020 to date and ongoing at the rate of $325.20 per week.

83I am not persuaded by the applicant’s medical evidence and submissions that he satisfies the test to receive payment for post-104-week IRB under s. 5 of the Schedule. Although the applicant relies on the catastrophic impairment reports of Dr. Liu and Mr. Madan, neither of these assessors concluded that the applicant suffered from a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience. Further, while Dr. Liu and Mr. Madan rely on the applicant’s subjective reports of cognitive difficulties impairing his ability to return to work, there is no evidence that the applicant has undergone any cognitive testing to address these subjective complaints. Indeed, despite recommendations from Dr. Majl and Dr. Gomez-Vargas, there is no evidence that the applicant has undergone a neuropsychological assessment. As such, there is no objective evidence to support that the applicant is completely unable to engage in employment for which he is reasonably suited by education, training, or experience due to cognitive difficulties.

84Moreover, although Dr. Batavia noted in a Disability Certificate (OCF-3) dated January 31, 2020 that the applicant was substantially unable to perform the essential tasks of his employment at the time of the accident and within 104 weeks of the accident and that he could not return to work on modified hours and/or duties, for the following reasons, I assign limited weight to this OCF-3. As the applicant did not consult Dr. Batavia from April 2018 to January 2020, there are no contemporaneous records to substantiate Dr. Batavia’s findings. Also, Dr. Batavia did not identify the essential tasks of the applicant’s employment, which tasks he is unable to perform, and to what extent he is unable to perform them. Although he noted that the applicant could not return to work on modified work or duties because of a severe level of impairment with prolonged standing or walking, moderate level of impairment with household responsibilities, and severe level of impairment with his day-to-day work, there is insufficient evidence to support that these restrictions prevent the applicant from engaging in employment activities.

85I further accept the respondent’s evidence that the applicant does not suffer from a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience.

86From a vocational perspective, Ms. Smith concluded that the applicant’s education, training, and experience would allow him to pursue employment in select work settings including as a property administrator, general office support worker, collector, sales representative wholesale, and customer service representative. She also noted that there may be medical contraindications that could preclude the applicant from pursuing employment and deferred to a medical professional. As such, the applicant’s ability to work was assessed by Dr. Hosseini and Dr. Weinstein.

87Dr. Hosseini diagnosed the applicant with the following accident-related injuries: chronic right-sided post-traumatic headaches (questionable cervicogenic/occipital neuralgia, with migrainous features); cervical, thoracic, and lumbosacral spine sprain and strain (subjective limited range of movement); right wrist ligament and joint sprain and strain (non-specific); right knee ligament and joint sprain and strain (questionable patellofemoral syndrome); and subjective reports of diminished sensation at C5, C8, and T1 on the right side, and L3, L4, and L5, and S1 on the right, without any other neurological findings. From a musculoskeletal perspective, although the applicant presented with significant pain behaviour and subjective limitations in mobility, Dr. Hosseini did not identify any objective clinical findings to support that the applicant has a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience.

88Dr. Weinstein diagnosed the applicant with the following accident-related injuries: aggravation of pre-existing generalized anxiety disorder, and specific phobia as a passenger (query post-traumatic stress disorder). From a psychiatric perspective, Dr. Weinstein found that the applicant did not suffer a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience.

89Accordingly, the applicant has not demonstrated, on a balance of probabilities, that he is entitled to IRB for the period of December 18, 2020 to date and ongoing.

Attendant Care Benefits (“ACB”)

90Having determined that the applicant is not catastrophically impaired, there is no need for me to do an analysis of the ACB claimed as the non-catastrophic impairment funding limits have been exhausted. As such, the applicant is not entitled to ACB.

91Having determined that the applicant is not catastrophically impaired, it is not necessary for me to consider the reasonable and necessary nature of the disputed treatment plans as they propose goods and services beyond the $65,000.00 funding limit for non-catastrophic impairments. As such, the applicant is not entitled to the disputed treatment plans.

Interest

92Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.

ORDER

93For the reasons outlined above, I find that:

1. The applicant is not catastrophically impaired.
2. The applicant is not entitled to IRB.
3. The applicant is not entitled to ACB.
4. The applicant is not entitled to the disputed treatment plans.
5. The applicant is not entitled to interest.

94The application is dismissed.