Citation: Ganopolsky v. Security National Insurance Company, 2024 ONLAT 23-004180/AABS

Licence Appeal Tribunal File Number: 23-004180/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:

Milan Ganopolsky

Applicant

and

Security National Insurance Company

Respondent

DECISION

VICE-CHAIR: Jeremy A. Roberts ADJUDICATOR: Teresa Walsh

APPEARANCES:

For the Applicant: Marin Ganopolsky, Applicant Peter Cimino, Counsel

For the Respondent: Crystal Krandel, ADR Specialist Ken Yip, Counsel

Court Reporters: Conner McTague and Siriana Taylor

Heard by Videoconference: May 21 to 24, 2024

OVERVIEW

1Marin Ganopolsky, the applicant, was involved in a motorcycle accident on June 19, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied benefits by the respondent, Security National Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

3The respondent denied that the applicant’s accident-related impairments met the definition of catastrophic (“CAT”) impairment. If it is determined that the applicant has suffered a CAT impairment, he is entitled to the extended tier of benefits that accompanies this designation.

ISSUES

4The issues in dispute are:

a) Has the applicant sustained a CAT impairment as defined by the Schedule?

b) Is the applicant entitled to attendant care benefits in the amount of $1,460.15 per month from June 9, 2021, to date and ongoing?

c) Is the applicant entitled to $12,743.00 for the cost of Catastrophic Impairment Responding Reports (“CAT Responding Reports”), submitted on a claim form (OCF-6) dated March 9, 2023, and denied on March 15, 2023?

d) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5After considering the parties’ submissions and the evidence, the Tribunal finds:

a) The applicant did not sustain a CAT impairment as defined by the Schedule.

b) The applicant is not entitled to the attendant care benefits or the cost of the CAT Responding Reports.

c) As no benefits are owing, the applicant is not entitled to interest.

PROCEDURAL ISSUES

Applicant’s request for an adjournment due to respondent witness unavailability

6At the outset of the hearing, the respondent advised that one of its expert witnesses, psychiatrist Dr. Sherese Ali, would not be available to testify due to having to take an unexpected leave. The respondent submitted that in the circumstances, it would be relying on Dr. Ali’s report prepared for this matter. The respondent further submitted that, while it had included Dr. Ali on its hearing witness list, it had not undertaken to call her to testify, and the applicant had not served Dr. Ali with a summons. The respondent submitted that pursuant to section 15 of the Statutory Powers Procedure Act (“SPPA”), the Tribunal could admit Dr. Ali’s report into evidence without her testimony.

7The applicant requested an adjournment of the hearing, to permit cross-examination of Dr. Ali when she returned from her leave. The applicant submitted that he would be prejudiced by not having an opportunity to cross-examine Dr. Ali as her evidence is central to the catastrophic determination issue in dispute and is at odds with the evidence of the applicant’s psychiatric expert, Dr. Shahzad Shahmalak.

8The Tribunal denied the applicant’s request for a hearing adjournment. The Tribunal found that, to satisfy its goal of providing fair and timely resolutions of disputes, the appropriate remedy in the circumstances was for the parties to make submissions in their closing arguments on the weight to be assigned to Dr. Ali’s report. Further, the Tribunal admitted Dr. Ali’s report into evidence under section 15 of the SPPA.

Length of hearing and witness schedule

9As indicated in a case conference report and order for this matter released on November 21, 2023 (the “CCRO”), five hearing days were scheduled for this matter. The Tribunal sought submissions from the parties at the outset of the hearing regarding the hearing length and scheduling of witnesses. The applicant initially submitted that none of his witnesses were available to testify on the second hearing day. Further, the applicant advised that he did not require the interpreter who had been booked for the hearing. Based on the availability of his witnesses, the applicant submitted that the hearing should be completed in four days. The respondent submitted that it should not be required to call any of its witnesses until the applicant closed his case. The respondent further submitted that, as it would no longer be calling Dr. Ali to testify, four days should be sufficient for the hearing.

10The Tribunal noted that the CCRO stated the parties were to work together on witness scheduling for the hearing. The Tribunal ruled that in order to ensure that the hearing was completed expeditiously and in a manner that was fair to both parties:

a) the hearing would be completed in four days or less;

b) no non-hearing days would be permitted in the schedule;

c) the parties were directed to attempt to schedule at least one witness for the second hearing day; and

d) upon reconvening on the second day of the hearing, if no witnesses were available to testify, the parties would move to closing arguments.

11Following the Tribunal’s ruling above, the applicant was able to arrange for his psychiatric expert Dr. Shahmalak to testify on the second hearing day.

Applicant’s motion for exclusion of surveillance and other documents

12At the outset of the hearing, the Tribunal also heard the applicant’s motion to exclude from evidence the following three categories of documents produced by the respondent:

a) certain surveillance reports and unedited surveillance videos produced by the respondent in a prior Tribunal proceeding between the parties;

b) additional surveillance reports and unedited videos, produced as part of the respondent’s complete surveillance file in this matter on April 12, 2024; and

c) a criminal record search and newspaper articles relating to the applicant, produced on April 12, 2024, and other materials relating to AK, a friend of the applicant, produced on April 19, 2024.

13The applicant submitted that all three categories of documents above were disclosed by the respondent after production timelines set out in the CCRO. In addition, he argued that the late service precluded his experts from having adequate time to prepare addendum reports responsive to the documents and that the documents were of limited if any relevance to the issues in dispute.

14The respondent submitted that the applicant had been served with many of the surveillance materials in December 2022, as part of the prior Tribunal proceeding. The respondent added that the applicant withdrew the prior proceeding on January 30, 2023 and commenced the current proceeding on April 13, 2023. In response to the applicant’s argument that the late service of the surveillance and other documents precluded his experts from having adequate time to comment on them in addendum reports, the respondent submitted that, although the surveillance served in December 2022 had been available for months, none of the applicant’s experts commented on it in their reports prepared for this proceeding.

15Regarding the additional surveillance materials, the respondent submitted they were served 39 days prior to the start of this hearing, providing sufficient time for review by the applicant. The respondent also submitted that the remaining documents, including the criminal record search and newspaper articles, are public records and accordingly not subject to disclosure requirements.

16The Tribunal ruled that:

a) The surveillance documents produced as part of the prior Tribunal proceeding would be admitted into evidence, as the applicant was aware of their existence well before the disclosure timelines in the CCRO and did not identify any prejudice in allowing them into evidence;

b) The other two categories of documents, being the additional surveillance reports and unedited videos, the criminal record search, newspaper articles, and materials relating to AK, would not be admitted into evidence, as these documents were not disclosed in accordance with the CCRO disclosure timelines, no reasons were provided by the respondent for the late service, and the late service was prejudicial to the applicant. Further, the Tribunal found that, apart from the additional surveillance, the documents had limited relevance to the issues in issue; and

c) The exclusion of the criminal record search did not prevent the respondent from asking the applicant and other witnesses questions about the applicant’s criminal history, provided the questions were relevant to the issues in dispute.

BACKGROUND

17On June 19, 2019, the applicant was driving a motorcycle on a highway in Toronto at an apparent speed of 90 to 100 kilometres per hour. He reports that upon being cut-off suddenly by a motor vehicle, he rear-ended the motor vehicle, causing him to be thrown from the motorcycle. The applicant sustained multiple injuries in the accident, including spinal injuries, a right wrist fracture and fractures to his middle, ring and small finger of his left hand. None of the applicant’s injuries was treated surgically.

18On April 13, 2023, the applicant submitted his current application for a CAT determination under paragraphs 7 and 8 of section 3.2(1) of the Schedule, referred to as criterion 7 and criterion 8, respectively. Criterion 7 considers a mental and behavioural impairment combined with a physical impairment which results in a 55% or more impairment of the whole person, while criterion 8 considers a behavioural impairment only.

19The respondent’s position is that based on insurer examination (“IE”) findings, the applicant does not meet the test of a criterion 7 or criterion 8 CAT impairment.

ANALYSIS

CAT definition

20A CAT impairment is a legal definition and not a medical test, although the legal test involves consideration of medical evidence. The criteria to establish CAT are found under s. 3.1(1) of the Schedule. The applicant has the onus of proving, on a balance of probabilities, that he has suffered a CAT impairment as a result of the subject accident.

The applicant does not meet the CAT threshold under criterion 7

21The Tribunal finds that the applicant has not satisfied his onus in demonstrating he has sustained a CAT impairment under criterion 7 because we do not accept the applicant’s rating for mental and behavioural impairments.

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% whole person impairment (“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 (the “Guides”) using the Combined Values Table.

23In assigning a value for mental and behavioural impairments, assessors are required to provide a score across three psychometric tests: (a) the Global Assessment of Functioning (GAF) scale, which takes into account the psychiatric aspects of social, academic, and vocational function and includes symptom severity; (b) the Psychiatric Impairment Rating Scale (PIRS), which evaluates an individual’s functional impairment in six subsections using a five-point scale; and (c) the Brief Psychiatric Rating Scale (BPRS), which evaluates major psychotic and non-psychotic symptoms in 24 items using a seven-point scale. Once scores are provided, the WPI rating is determined by taking the median score of the three psychometric tests.

24There is a significant difference of opinion between the applicant and respondent medical assessors regarding the applicant’s impairment ratings under criterion 7. However, the biggest difference in the parties’ respective WPI ratings relates to the mental and behavioural component. If the Tribunal finds that the 30% total mental and behavioural impairment rating provided by the applicant’s psychiatrist assessor, Dr. Shahmalak, is unsupported by the evidence, the applicant does not meet the CAT threshold under criterion 7.

25The applicant argues that we should accept the 30% mental and behavioural score provided by Dr. Shahmalak because it best reflects the applicant’s impairments as described in his testimony. Dr. Shahmalak assigns a 30% WPI rating based on his virtual clinical assessment and interview, alongside a medical document review. In scoring on the relevant psychometric tests, Dr. Shahmalak assigns a 15% for GAF and a 30% for both PIRS and BPRS, leading to a median score of 30%. He opines that these scores are merited because the applicant demonstrates severe impairments in: (a) social and relational activities; (b) the ability to concentrate and persist in completing tasks; (c) his resilience and employability; and (d) his somatic concern. Dr. Shahmalak also bases his scores on findings that the applicant exhibits a moderately severe blunted affect, distractibility and emotional withdrawal.

26The respondent argues that the scores provided by Dr. Shahmalak do not accurately reflect the applicant’s impairments. The respondent submits that most of Dr. Shahmalak’s ratings are based on the subjective evidence of the applicant, whom it argues is not credible. It argues that the applicant was inconsistent during multiple parts of his testimony regarding his driving history, medication use and use of illicit substances. Further, the respondent argues that the impairments rated by Dr. Shahmalak do not align with the applicant’s functionality as evidenced in the surveillance footage, which shows the applicant operating a vehicle and visiting friends. The respondent submits that for these reasons, the Tribunal should prefer the rating provided by its CAT psychiatrist assessor, Dr. Ali, who provides a 10% WPI rating for mental and behavioural impairment.

27In considering the submissions of the parties, the Tribunal finds that the applicant has not met his onus of proving that the 30% WPI rating provided by Dr. Shahmalak is reasonable because; (1) we find the conclusions of Dr. Shahmalak are not based on credible evidence; (2) we find the PIRS score to be elevated; and (3) we find the BPRS score to be elevated.

Conclusions of Dr. Shahmalak

28The Tribunal finds that details of the applicant’s personal, educational, vocational and medical (including psychiatric) history included in Dr. Shahmalak’s report – which form the basis for his diagnoses and test findings – are superficial and primarily based on the applicant’s self-reporting.

29An appendix to Dr. Shahmalak’s report sets out numerous medical records and other assessment reports for the applicant he was provided. Notable inconsistencies in the applicant’s self-reporting are apparent upon comparing these materials. These inconsistencies relate to details of other accidents and injuries sustained by the applicant, health challenges he has faced, his alcohol and illicit substance use prior to and following the subject accident, and his past and current interpersonal relationships. Given these inconsistencies, Dr. Shahmalak’s heavy reliance on the applicant’s self-reporting weakens his report findings, including the psychometric test results discussed below.

Applicant’s PIRS scale results

30Dr. Shahmalak’s PIRS scores for the applicant are below.

Self-Care, Personal Hygiene and Activities of Daily Living	2
Role Functioning, Social and Recreational Activities	4
Interpersonal Relationships	3
Concentration, Persistence and Pace	4
Travel	3
Resilience and Employability	4

31As indicated in the above chart, Dr. Shahmalak gives the applicant a score of “4” or severe impairment for the subsection “Role Functioning, Social and Recreational Activities.” According to the Guides, this score describes an individual who: “Never leaves place of residence. Tolerates the company of family members or close friends but will go to a different room or place when others come to visit family.” Dr. Shahmalak appears to assign the severe impairment score based on the applicant’s self-report that he does not go “anywhere” due to pain and that he maintains relationships with “some” friends by phone.

32The Tribunal notes that the Role Functioning, Social and Recreational Activities PIRS score determined by Dr. Shahmalak is not supported by the applicant’s hearing testimony. The applicant admitted on cross-examination that he socializes with friends at auto collision centres (his former places of employment) “a couple of days a week.” The applicant also acknowledged during cross-examination that he has a girlfriend whom he met approximately three years ago. Furthermore, although we place less weight on this evidence given its late filing, the applicant’s testimony was corroborated by the surveillance footage presented to the Tribunal, which showed the applicant visiting with others at an auto collision centre.

33Further, Dr. Shahmalak gives the applicant a score of “4” or severe impairment for the PIRS subsection “Concentration, Persistence and Pace.” The Guides indicate that this score describes an individual who: “Can read only a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation.” Again, Dr. Shahmalak appears to assign this score based on the applicant’s subjective reports of cognitive difficulties (impaired memory, concentration and attention, as well as impaired multi-taking). Dr. Shahmalak finds that these difficulties, “would likely lead to poor decision-making, increased errors and decreased task efficiency at his workplace.”

34Dr. Shahmalak’s severe impairment finding for Concentration, Persistence and Pace is inconsistent with the respondent’s CAT occupational therapy (“OT”) assessor Ms. Ghatas’ more comprehensive findings on formal memory and orientation testing. In her two-part report, Ms. Ghatas finds that from a cognitive/mental standpoint, the applicant demonstrates some limitations with immediate memory recall, possibly reduced attention to detail and some mild limitations with delayed memory/recall. Ms. Ghatas does find that when tasked with more complicated, mentally taxing testing, the applicant’s general pace is slow, he is vulnerable to distractions and has difficulty thinking independently and problem solving. Ms. Ghatas’ detailed testing was carried out during two days of in-person meetings with the applicant in April 2022. Dr. Shahmalak met with the applicant virtually for 75 minutes. For the foregoing reasons, the Tribunal assigns Ms. Ghatas’ findings greater weight than Dr. Shahmalak’s regarding the PIRS subsection for Concentration, Persistence and Pace.

35The Tribunal also finds the PIRS findings of the respondent’s CAT psychiatric assessor Dr. Ali are more persuasive than those of Dr. Shahmalak. While she did not testify, Dr. Ali’s report provides a thorough review of the medical records and other assessment reports, specifically noting where self-reported information of the applicant is inconsistent with documentary evidence. As seen in the chart below, Dr. Ali assigns the applicant PIRS scores of “2” or mildly impaired for Role Functioning, Social and Recreational Activities and “3” or moderately impaired for Concentration, Persistence and Pace. She assigns a “1” or no deficit/minor deficit for the remaining subsections. Her total PIRS score is 5%, based on the combined median scores of “1” and “2”.

Self-Care, Personal Hygiene and Activities of Daily Living	1
Role Functioning, Social and Recreational Activities	2
Interpersonal Relationships	2
Concentration, Persistence and Pace	3
Travel	1
Resilience and Employability	1

36While we assign less weight to Dr. Ali’s report as she did not testify, the Tribunal notes that most of Dr. Ali’s PIRS scores are consistent with the testing carried out by CAT OT assessor Ms. Ghatas and the testimony of the applicant himself. Even if a score of “3” or moderately impaired is substituted for Dr. Ali’s score of “1” on “Reliance and Employability”, the two median scores would be “2” and “3”, which, when added together, converts to a PIRS impairment scale of 15% according to the Guides.

Applicant’s BPRS scale results

37As previously noted, Dr. Shahmalak assigns a BPRS impairment score of 30% for the applicant, based on the sum of 24 mental and behavioural items using a seven-point severity scale. For most items, Dr. Shahmalak assigns scores of “not present” or very mild. Dr. Shahmalak determines that the applicant has a “severe” somatic concern and moderately severe blunted affect, distractibility and emotional withdrawal.

38Dr. Shahmalak’s above findings differ significantly from other evidence. In her CAT OT report, Ms. Ghatas notes that during the many hours she spent with the applicant, he was socially pleasant, smiled a lot, maintained good eye contact with her, had pleasant exchanges and joked with family members and her, and freely shared information.

39The Tribunal further notes that the applicant’s testimony regarding time regularly spent with former work colleagues and a multi-year relationship with his girlfriend do not support him suffering from a moderately severe blunted affect and emotional withdrawal as found by Dr. Shahmalak.

40Based on the foregoing, the Tribunal finds that the scores assigned by Dr. Shahmalak for somatic concern, blunted affect and emotional withdrawal are inconsistent with other, more persuasive evidence. The Tribunal finds that a score of moderate for each of somatic concern, blunted affect and distractibility, and a score of mild for emotional withdrawal, are in keeping with evidence the Tribunal finds to be persuasive. These scores correspond with a BPRS impairment rating of 20% in the Guides.

41To summarize, the Tribunal’s finds that a 15% PIRS impairment rating and a 20% BPRS impairment rating are reasonable. Even accepting Dr. Shahmalak’s 15% GAF impairment rating, the median score for the three mental and behavioural impairment ratings equals 15% according to the Combined Values Table in the Guides. This score, when combined with the applicant’s physical impairment rating of 37%, provides a WPI rating of 46%, which is insufficient to meet the threshold for a finding of CAT impairment under criterion 7.

42Accordingly, the applicant has not met his onus in proving, on a balance of probabilities, that he sustained a CAT impairment under criterion 7.

The applicant does not meet the CAT threshold under criterion 8

43The Tribunal finds that the applicant has not met his onus in demonstrating that he has sustained a CAT impairment under criterion 8 because we do not accept the “marked” rating provided by Dr. Shahmalak in the sphere of social functioning.

44In order to meet the threshold for a CAT impairment under criterion 8, an individual must have sustained class 4 impairment (marked) in three or more areas of function that precludes useful functioning, or a class 5 impairment (extreme) in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder. These impairments are assessed under Chapter 14 of the Guides. Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides set out the four spheres of functioning and the levels of impairment 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	No impairment is noted	Impairment levels are compatible with most useful functioning	Impairment levels are compatible with some, but not all useful functioning	Impairment levels significantly impede useful functioning	Impairment levels preclude useful functioning
Social Functioning
Concentration, Persistence and Pace
Adaptation (Deterioration in a work-like setting)

45The parties agree that as a result of the accident, the applicant has not sustained any extreme impairments, nor has he sustained a marked impairment in Activities of Daily Living. The applicant argues that he has sustained a marked impairment in the areas of Social Functioning, Concentration, Persistence and Pace and Adaptation.

46If the applicant is found not to have sustained a marked impairment in one of the remaining three spheres of functioning in dispute, he cannot meet the threshold for a CAT impairment under criterion 8.

No marked impairment in social functioning

47The Tribunal finds that the applicant does not meet the threshold for a CAT impairment under criterion 8, as he has not sustained a marked impairment in the sphere of Social Functioning.

48The Guides define social functioning as referring to an individual’s capacity to interact appropriately and communicate effectively with other individuals, including family members, friends and neighbours. The Guides further provide that impaired social functioning may be demonstrated by a history of altercations, firings, fear of strangers, avoidance of interpersonal relationships, and social isolation with similar events and characteristics.

49The applicant relies on the report and testimony of Dr. Shahmalak, who determines that he suffers a marked impairment in social functioning. As noted above, Dr. Shahmalak accepts the applicant’s self report of not going “anywhere”, that when he does go out, he “just wants to go home”, and that he becomes irritable and agitated when out in public. Dr. Shahmalak finds the applicant’s affect to be “blunted”, with “evidence of impairment in affect regulation that would meaningfully affect his capacity to initiate and maintain a variety of social relationships.” Based on this self-reporting, Dr. Shahmalak finds the applicant suffers from a marked impairment in social functioning.

50The respondent argues that the applicant exhibits a mild impairment in social functioning. The respondent relies on the applicant’s own evidence that he has had a relationship with his girlfriend for approximately three years, and further relies on several social media postings of the applicant with his girlfriend. The respondent argues that surveillance footage showing the applicant being away from his home for several hours and the applicant’s admission on cross-examination that he socializes with others a few times a week, establish that he has few limitations in social functioning. Further, the respondent points to the evidence of its CAT assessors Ms. Ghatas and Dr. Ali, who both describe the applicant as being pleasant, smiling and joking regularly during their assessments of him. The respondent also relies on Ms. Ghatas’ evidence regarding the applicant as interacting comfortably with his family members

51Upon considering the evidence and the parties’ submissions, the Tribunal finds that Dr. Shahmalak’s determination on Social Functioning is weakened by the applicant’s own evidence. The Tribunal also finds the evidence of the respondent’s CAT assessors, particularly that of Ms. Ghatas, more compelling than the evidence of Dr. Shahmalak.

52Based on the foregoing, the Tribunal finds the applicant has not met his onus of demonstrating that he has sustained a marked impairment in the sphere of Social Functioning. Further, as the applicant has not met the required marked impairment findings in three areas of function, the Tribunal finds that the applicant has not met the threshold of a CAT impairment under criterion 8.

The applicant is not entitled to an attendant care benefit (“ACB”)

53The Tribunal finds that the applicant has not met his evidentiary onus for his ACB claim in the amount of $1,460.15 per month from June 9, 2021, to date and ongoing. Accordingly, the applicant is not entitled to payment of this benefit.

54Section 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”).

55At the hearing, the applicant did not call any evidence relating to his claim for ACBs. In particular, no evidence was presented to the Tribunal that the applicant had actually incurred any ACB expenses as required by section 3(7)(e) of the Schedule. This section provides that a person has “incurred” an expense if they have received the goods or services to which the expense relates; paid the expense; promised to pay the expense; or are otherwise legally obligated to pay the expense. The lack of evidence regarding incurred ACB expenses significantly weakens, if not undermines, the applicant’s claim.

56In support of his claim for ACBs, the applicant relies solely on the December 25, 2020 filed report and Form 1 prepared by Natalya Khramtsova, RN, BScN. Ms. Khramtsova conducted an in-person interview and assessment of the applicant on the same day she finalized her report. She finds that the applicant demonstrates good results on manual muscle testing of both upper and lower limbs. Ms. Khramtsova assesses the applicant performing various tasks/activities of daily living (preparing and serving meals, cleaning the bathroom after use, changing and making his bed and cleaning the bedroom, hanging clothing and sorting clothing to be laundered, and engaging in prescribed exercise and stretching). Ms. Khramtsova reports observing “physical abilities limitations and reported injury aggravating factors which would impede the applicant from performing the [task].” No details are provided as to the nature and extent of the observed limitations, nor does Ms. Khramtsova indicate whether the applicant can himself, or with the benefit of an assistive device(s), compete any of the identified activities.

57The Form 1 accompanying Ms. Khramtsova’s report provides that that applicant requires $1,460.15 in monthly ACBs. The breakdown of monthly ACBs is: grooming and assistance in preparing and serving meals ($448.49), bathroom, bedroom and clothing care ($376.25), and assistance with prescribed exercises/stretching ($635.41).

58The respondent relies on the report of Ms. Dawn Li, OT dated June 4, 2021, Ms. Li’s Form 1 dated March 19, 2021 and her hearing evidence. Ms. Li concludes that the applicant does not require any ACBs. Ms. Li notes that a low level of functionality (about nine percent) is required to complete many activities of daily living. She further notes that the applicant, who is right-hand dominant, has adapted to using both hands or his right hand alone for tasks, and as a result, is able to complete about 90% of activities of daily living.

59Apart from there being no evidence of incurred ACB expenses, having considered each party’s ACB-related reports and Ms. Li’s evidence, the Tribunal is not persuaded by the applicant’s evidence that the ACBs sought are reasonable and necessary. The Tribunal finds the applicant’s ACB report is not persuasive as it does not provide details on the degree of physical limitations or injury aggravating factors stated to impede the applicant in performing particular tasks. Further, unlike the respondent’s ACB assessor Ms. Li, the applicant’s ACB report does not address to what extent the applicant has adapted in order to perform activities of daily living.

60As a result, the Tribunal finds that the applicant is not entitled to the ACBs being claimed.

The applicant is not entitled to the cost of the CAT Responding Reports

61The Tribunal finds that the applicant is not entitled to the cost of the CAT Responding Reports because we find that these reports are not reasonable and necessary.

62Section 25(1) 5 of the Schedule provides that an insurer shall pay for reasonable fees for the determination of whether the insured person has sustained a CAT impairment, including any assessment or examination necessary for that purpose. The applicant bears the onus of proving on a balance of probabilities that each item in the treatment plan (OCF-18) or claim form (OCF-6) is reasonable and necessary for the purpose of applying for a CAT determination under section 45.

63The applicant seeks $12,743.00 for the cost of CAT Responding Reports, submitted on a claim form (OCF-6) dated March 9, 2023, and denied on March 15, 2023.

64The applicant did not make any submissions or direct the Tribunal to any evidence in support of his position that the CAT Responding Reports are reasonable and necessary. Indeed, the OCF-6 for the CAT Responding Reports was not introduced into evidence.

65The respondent relies on its March 15, 2023 letter (“EOB”) denying payment for the CAT Responding Reports. The EOB states that the CAT Responding Reports, proposing a CAT determination under criterion 8, are not reasonable and necessary as they would be a duplication of the criterion 8 findings addressed by Dr. Ali in her report. The EOB notes Dr. Ali had determined that the applicant’s accident-related mental and behavioural impairment with respect to the four spheres of function are Class 2 mild impairment level, and therefore the catastrophic impairment is not met.

66The Tribunal accepts that an applicant is entitled to claim from an insurer reasonable costs of assessments regarding whether the applicant has sustained a catastrophic impairment. In this case, however, the applicant has failed to provide any breakdown of the amounts claimed for the CAT Responding Reports as required by sections 25(1) 5 and 25(5) of the Schedule, and has failed to demonstrate with evidence why the reports are reasonable and necessary.

67The Tribunal finds that as he has not put forward any evidence on this issue, the applicant has not met his onus of establishing, on a balance of probabilities, that the OCF-6 dated March 9, 2023 for the CAT Responding Reports is payable.

Interest

68As the Tribunal has found that the benefits in dispute are not payable, interest does not apply.

ORDER

69The applicant has not sustained a CAT impairment under either criterion 7 or criterion 8 as a result of the accident.

70The applicant is not entitled to an attendant care benefit in the amount of $1,460.15 per month from June 9, 2021, to date and ongoing.

71The applicant is not entitled to $12,743.00 for the cost of CAT Responding Reports, submitted on a claim form (OCF-6) dated March 9, 2023, and denied on March 15, 2023.

72The applicant is not entitled to interest, as no benefits in dispute have been found to be payable.