Citation: McMillan v. Intact Insurance, 2024 ONLAT 23-000459/AABS

Licence Appeal Tribunal File Number: 23-000459/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:

Cherraine McMillan

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

Jennifer Mendelsohn

APPEARANCES:

For the Applicant:

Slavko Ristich, Counsel

For the Respondent:

Monica Chakravarti, Counsel

Carman Lee, Counsel

Court Reporter:

Conner McTague

Heard by Videoconference:

April 8-12, 2024

OVERVIEW

1Ms. Cherraine McMillan (the “applicant”) was involved in an automobile accident on February 11, 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 Intact Insurance (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2For clarity, the applicant was involved in an earlier accident on February 7, 2019, that does not form part of this claim.

ISSUES

3The issues in dispute are:

i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

ii. Is the applicant entitled to attendant care benefits in the amount of $3,229.02 per month from November 20, 2019, to date and ongoing?

iii. Is the applicant entitled to the treatment plans (“OCF-18”) proposed by Healthmax Physiotherapy, as follows:

a. $1,571.91 ($2,912.57 less $1,340.66 approved) for physiotherapy services, submitted November 15, 2022, and denied November 25, 2022;

b. $2,462.47 ($5,089.47 less $2,627.00 approved) for chiropractic treatment/active therapy services, submitted March 7, 2023, and denied March 15, 2023;

c. $891.38 ($3,106.80 less $2,215.42 approved) for chiropractic/manual therapy/laser therapy services, submitted on April 21, 2023, and denied April 26, 2023; and

d. $4,406.16 for shockwave/active therapy services, submitted May 9, 2023, and denied May 16, 2023?

iv. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4The applicant has not sustained a catastrophic impairment as defined by the Schedule. The applicant is not entitled to attendant care benefits, nor the disputed treatment plans. The respondent is not liable to pay an award and no interest is payable.

PROCEDURAL ISSUES

Motion 1 – Exclusion of evidence, exclusion of witnesses, and addition of evidence

5At the start of the hearing, the applicant brought forth an omnibus motion asking for the following relief:

i. An order to exclude the original section 44 catastrophic determination reports completed by Dr. Shreerkant Sharma (psychiatrist) and Ms. Lynn Rutledge (occupational therapist);

ii. An order to exclude the section 44 catastrophic determination addendums completed by Dr. Shariff Dessouki (physiatrist), Dr. Sharma and Ms. Rutledge;

iii. An order to exclude Dr. Sharma and Ms. Rutledge from appearing as witnesses at the upcoming hearing;

iv. An order to add the adjuster log notes to the applicant’s hearing brief;

v. Costs of $7,500.00 for the respondent’s failure to provide productions and the applicant’s preparation of this motion; and

vi. An order to un-redact a name in the adjuster log notes.

6The applicant sought to have the respondent’s catastrophic reports excluded because they were not exchanged in accordance with the deadlines outlined in the case conference report and order (“CCRO”) for this matter, dated September 5, 2023. As well, the applicant maintained she was unaware the respondent was relying on the addendums until she received the respondent’s hearing brief on March 12, 2024. The applicant further asserts that the files of the Insurer’s Examination (“IE”) assessors included raw test data that formed part of the documentary exchange the parties agreed to at the case conference, and that his raw data was either destroyed or not retained. The applicant submitted that the respondent’s failure to provide the raw data and notes of the assessors severely prejudiced the applicant’s ability to challenge the respondent’s defence.

7The respondent opposed all aspects of the applicant’s motion, except for adding the adjuster log notes to the applicant’s hearing brief, to which it consented. Pertaining to the raw data, the respondent maintained that nothing exists outside the reports it produced, and that it exerts no control over documents held by a third-party. The respondent then explained that its catastrophic reports were served before the case conference, and as such, there is no basis for their exclusion. In terms of the IE addendum reports, the respondent acknowledged they were sent to the applicant on February 14, 2024 (i.e., six months after the case conference in breach of the CCRO). However, the respondent contends they did not receive the section 25 catastrophic report addendum of Dr. Lionel Gerber (psychiatrist) until November 10, 2023, and as such, there was no undue delay on the respondent’s side considering its addendums were replying to Dr. Gerber’s rebuttal.

8Regarding the un-redacting of information in the log notes, we asked the respondent to confirm whether the redacted word(s) was indeed a name as speculated by the applicant. The respondent advised that it was not. We then asked for an explanation of the redaction and were advised that the basis for the redaction was litigation privilege.

9In reply, the applicant emphasized that if the raw data was not available (i.e., the handwritten tests and forms completed by the applicant at the request of the assessors), then it must mean it was destroyed because she had completed a waiver to release the raw data and received no explanation as to why this information was not available. The applicant added that the loss of this data means she cannot check for errors in calculations or test selection.

10After considering both the written and oral submissions of the parties, we found as follows:

i. We declined to order that the section 44 catastrophic reports, addendums, and assessor testimony be excluded from the hearing. Pursuant to the Licence Appeal Tribunal Rules (“LAT Rules”) and the considerations at LAT Rule 9.3 in particular, we found these reports form the respondent’s key evidence concerning the issues in dispute and are presumptively relevant. We accepted that the reports were shared with the applicant prior to the case conference and therefore comply with the CCRO. While we also accepted that the respondent’s explanation for the late addendum disclosures was reasonable, we recognized the broader concern raised by the applicant about overall non-compliance with the CCRO (i.e., not producing raw data) and invited the parties to make submissions on the weight this evidence should be afforded in their closing submissions.

ii. For the adjuster log notes, we ordered they be included in the applicant’s evidentiary brief as the respondent consented to this, and they are presumptively relevant to the applicant’s award claim.

iii. We declined to order costs. LAT Rule 19 specifies a party may request an order for costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. We found the applicant did not show that the respondent’s conduct rose to this high level in either its failure to provide the assessors files and raw data, or to the late delivery of the addendum reports. With respect to the raw data in particular, we recognized this information is not directly controlled by the respondent and therefore did not attribute its unavailability to the respondent’s conduct.

iv. We declined to order that the redacted information be unredacted. Pursuant to section 5.4(2) of the Statutory Powers and Procedure Act, we do not have the authority to order disclosure of privileged information.

Motion 2 – Production of Dr. Gerber’s file

11At the start of the hearing, the respondent brought forth a motion asking for the following relief:

i. An order for the applicant to produce Dr. Gerber’s complete file.

ii. Costs to complete and file the motion in the amount of $250.00.

12The respondent submitted that the applicant should produce the complete file of Dr. Gerber (i.e., notes, raw data, etc.) because the applicant is intending to rely upon Dr. Gerber’s report. The respondent argued that since they received Dr. Gerber’s report on November 10, 2023, approximately three months after the case conference, it could not have contemplated the need for Dr. Gerber’s complete file at the time the production orders were made.

13The applicant opposed this motion on the basis that this production request was not included in the CCRO. The applicant argued that the respondent was aware that Dr. Gerber was to be called as an expert witness at the hearing because he was listed in the applicant’s case conference summary. The applicant further submitted that the respondent’s motion was untimely because it could have filed this motion at any point after November 21, 2023, but chose not to do so. The applicant claimed prejudice as a result of the respondent’s inaction.

14After considering the submissions of both parties, we agreed with the applicant that the respondent should have anticipated that Dr. Gerber was appearing as a witness and had ample opportunity beforehand to file its motion. As such, we declined to order the production of Dr. Gerber’s complete file. As the respondent was not successful in its motion, we declined to order the costs it requested.

Motion 3 – Quashing Summons

15The respondent brought forth a second motion prior to the start of the hearing and asked for the following relief:

i. An order quashing the summonses for Ms. Srima Samuel and Mr. Luis Naval (adjusters employed by the respondent).

ii. In the alternative, an order quashing the summons for Mr. Naval.

16The respondent brought this motion on the basis that the adjusters were not properly served. The respondent also argued it is inefficient for the adjusters to testify because log notes and correspondence contained in the accident benefits file is already in evidence. The respondent also asserted that the applicant failed to particularize her award claim.

17The applicant took the position that the adjusters were properly served and that their testimony was needed to help the Tribunal understand why the applicant was improperly held in the Minor Injury Guideline (“MIG”).

18After considering the submissions of the parties, we denied the respondent’s request to quash the summonses. We find the respondent failed to show the summonses for both adjusters were improperly served on March 26 and 27, 2024. However, we also noted to the parties that the CCRO for this matter ordered a maximum of five witnesses for the applicant, and that adjustments to her witness list were required if she wished to include both adjusters. The applicant elected to add only Mr. Naval as a witness and the parties jointly agreed to reduce their witness lists by relying only on the written reports and addendums of Drs. Gerber and Sharma as well as Ms. Rutledge.

ANALYSIS

Catastrophic impairment

19We find that the applicant is not catastrophically impaired per the Schedule.

20The applicant’s application for determination of catastrophic impairment (“OCF-19”) dated November 14, 2021, indicated that criteria 7 and 8 were at issue. However, the applicant’s submissions and evidence only address criterion 8, and the parties confirmed at the outset of the hearing that only criterion 8 is disputed.

21To prove her case, the Schedule compels the applicant to demonstrate she suffers accident-related impairments owing to a mental or behavioural disorder that result in a class 4 (“marked”) impairment in at least three or more areas of function, or a class 5 (“extreme”) impairment in one area of function, according to the 4th Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”).

22The below chart explains the areas of functioning and corresponding impairment levels as set out in the Guides:

Area 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 Social Functioning Concentration, Persistence & Pace Adaptation

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

Opinions of the parties’ experts on the applicant’s mental or behavioural disorders and level of impairment in each area of function

23The applicant’s assessor, Dr. Gerber, completed a report on November 10, 2023, which diagnosed the applicant with major depressive disorder and somatic symptom disorder. He also indicated that while the applicant presented with ongoing symptoms of post-traumatic stress disorder, she did not meet the full diagnostic criteria at the time he assessed her, adding it was likely she would have met the criteria for a diagnosis initially following the accident. Dr. Gerber also noted that while the applicant’s depressive symptoms significantly increased after the accident, he believed the accident was not the cause of her major depressive disorder because she had a history of pre-existing depression. Dr. Gerber found the applicant to have a marked impairment in all four areas of function.

24The respondent’s assessor, Dr. Sharma, completed a report on February 6, 2023, and offered similar diagnoses to those of Dr. Gerber. Dr. Sharma diagnosed the applicant with major depressive disorder, a phobia related to driving and passenger anxiety that was in partial remission, and a chronic pain disorder. Dr. Sharma also noted the applicant presented with psychological symptoms of post-traumatic stress disorder but did not meet the full diagnostic criteria. Dr. Sharma found the applicant to have a moderate impairment in all four areas of function.

Submissions of the applicant

25The applicant submits she is markedly impaired in all four areas of function. While she acknowledges she was unable to work pre-accident because of “serious” impairments, the applicant contends she was getting her life back together in the three months prior to the accident. She explains that the respondent denied her the treatment and care she required after the accident, which caused her disability. To support her position, the applicant relies on the catastrophic assessment report completed by Dr. Gerber, the occupational therapy assessment completed by Ms. Inna Rozenfeld (occupational therapist), the testimony of Ms. Amala McClymont (the applicant’s sister), the clinical notes and records of Scarborough Health Network, a June 2019 letter from Odyssey Health Services, and her medication records.

Submissions of the respondent

26The respondent raised causation as the central issue to this dispute and asserts that the accident was not a necessary cause of the functional impairments claimed by the applicant. The respondent argues that the applicant has a significant mental health history (i.e., depression and anxiety) that predates the accident, and that her pre-and-post-accident symptomology was the same with no evidence to substantiate that she was improving prior to the accident. To support its position, the respondent principally relies on a January 2019 letter written by the applicant to her long-term disability (“LTD”) provider, various pre-accident LTD and Canada Pension Plan (“CPP”) documents, and the catastrophic assessment reports and addendums of Dr. Sharma, Ms. Rutledge, and Dr. Dessouki.

Before the accident

27In our view, the applicant’s and Ms. McClymont’s testimony about the applicant’s functioning prior to the accident was discrepant and unsupported by the bulk of the evidence in this case.

28While the applicant acknowledged her pre-accident depression and anxiety prevented her from working at the time of the accident, she maintained her symptomology did not prevent her from doing other things, such as caring for her children. The applicant testified that she experienced “a level” of anxiety and depression before the accident, but maintained she could cope (i.e., “doing regular things of life”). For example, the applicant shared that she was regularly involved in taking her children to medical appointments and extracurricular activities in the year before the accident. To support her claim, the applicant pointed to an April 2018 entry in the clinical notes and records of Scarborough Health Network, which says she was exhausted from taking care of her children. The applicant also referred to a May 2018 entry that indicated she was looking after her nephews and taking them to school. The applicant testified that, as of December 2018, she was still performing her own personal care (i.e., showers and grooming) as well as driving regularly and doing about 75 per cent of the house duties (i.e., cooking and cleaning). As well, the applicant shared that she was driving 120 kilometres across the city each day and directed us to a December 2018 entry in Scarborough Health Network’s records that indicates she was taking her son to a training program.

29Ms. McClymont similarly testified that the applicant was functional prior to the accident. Ms. McClymont said she saw the applicant weekly in the year before the accident; that they had a good relationship and would spend time together on vacations, visiting local attractions, and doing movie marathons. Ms. McClymont agreed she had told Dr. Gerber that the applicant was self-motivated and that nobody had to push her to do anything. During a collateral interview with Dr. Gerber, the applicant’s friend, Ms. Renee McKee-Oates, corroborated Ms. McClymont’s observation of the applicant as a “go getter” by describing her as “driven”.

30We find the testimony of both the applicant and Ms. McClymont is at odds with the applicant’s CPP application, which was filed with Service Canada seven months before the accident on July 25, 2018. While the applicant minimized the weight of her CPP application by submitting her LTD provider forced her to apply so it could reduce its benefit liability, we find this does not diminish its relevancy and accept the CPP evidence as a helpful timeline of the applicant’s pre-accident history as it pertains to her mental and behavioural functioning.

31In our view, the CPP summary report establishes that the applicant’s mental health condition was impaired prior to the accident. The applicant reported that she experienced depressive symptomology as early as 2013, and that by September 2016, she was meeting weekly with a mental health therapist and bi-weekly with a psychiatrist. The applicant told Ms. Ka-Lee Chu (clinical manager) that she was functioning poorly at that time and struggling to complete her activities of daily living and provide care for her children. Dr. Stewart Dief (psychiatrist) mentioned in his July 2018 report that the applicant’s depression started in 2016, which is consistent with the CPP medical report he completed. In that medical report, Dr. Dief explains that the applicant’s depression progressively worsened to the point the applicant was unable to work by May 2016, and that her prognosis was poor. In June 2017, Dr. Dief diagnosed the applicant with a very severe major depressive disorder accompanied by frequent symptomology and serious impairment in social and occupational functioning. In November 2017 and July 2018, Dr. Dief made similar observations of the applicant’s functional limitations, including flat affect, dysphoria, fatigue, poor short-term memory, and psychomotor slowing.

32We find the accompanying questionnaire—signed by the applicant as part of her CPP application—is consistent with the medical history conveyed in the CPP summary report. During cross-examination, the applicant confirmed the accuracy and honesty of her questionnaire responses, which indicate she suffered from depression, anxiety, and panic attacks. She noted she was unable to focus, had difficulties with memory, and experienced issues leaving the house and being around people, which we find is inconsistent with both her testimony and that of Ms. McClymont. The applicant indicated that she had stopped going to church and events for her children as of May 2016, explaining that she was unable to participate or watch her children perform in their youth programs because of her inability to be around people. This too is inconsistent with the testimonial accounts of the applicant and Ms. McClymont. The applicant listed her limitations as: anxiety around people, neglecting her personal health care needs (including having trouble remembering to shower or brush her teeth, and needing reminders to eat), difficulties grocery shopping, having no energy to clean and cook, being uncomfortable speaking to people due to confusion and losing her train of thought, poor memory and concentration, and spending all her time in her room because sleeping was all she could do. In our view, these limitations do not support the recollections offered by the applicant or Ms. McClymont during the hearing.

33While the applicant testified she later told her doctors things got better after she filed her CPP application, we put little weight here as she did not point to evidence of this in their records, nor did she direct us to a contemporaneous medical opinion that indicated her mental and behaviour condition improved prior to the accident.

34During her direct examination, the applicant went on to say that her estranged husband was murdered in October 2018, prompting more depressive symptomology. The applicant testified that she was not leaving her house, had bouts of crying she could not stop, and was feeling “really down” to the point of preventing her from doing house activities. Ms. McClymont corroborated the applicant’s testimony by saying she was emotionally down (i.e., crying and sad) during this period, and that she increased the frequency of her support to daily visits with the applicant at this time. While Ms. McClymont also recollected that after the murder, the applicant still got her kids to school and made their lunches, we find this is inconsistent with the applicant’s testimony that her kids stopped school and “all other stuff” at this point. The applicant described things as going “off-track,” and attributed this to an ensuing legal dispute with her in-laws about the custody of her children and the control of her estranged husband’s life insurance proceeds. The applicant also conveyed that she experienced financial stress during this period because her estranged husband’s support payments ended with his death, which further strained her mental health and caused her to “retreat” (i.e., difficulties getting back to her normal activities).

35The applicant added that in December 2018 she was “extremely” upset because her benefits provider threatened to end her LTD payments owing to non-compliance with her return-to-work program. The applicant testified that she was having functional limitations in December 2018 and January 2019, which she described as fatigue, low mood, depression, and anxiety. We find this is consistent with the letter the applicant wrote to her LTD provider on January 3, 2019. While the applicant’s response submissions downplayed the weight of this letter as it relates to the applicant’s symptomology and functioning, we find it provides a persuasive account of her mental health condition that is consistent with the bulk of the evidence in this case. We therefore gave it weight in our decision.

36In that letter, the applicant indicated it was a “VERY” hard time for her and her family. She described experiencing a “panic-filled state” each time she recalled the monthly anniversary of her estranged husband’s death; that it was the worst thing she had ever had to deal with and was tearing her apart. She indicated she would deliberately turn her phone off or put it on silent mode to avoid calls and the outside world because it was overwhelming. She described herself as “breaking,” writing that her life was falling apart and that she was just trying to survive. The applicant shared that her children were not fully back at school yet, and that there had not been a week they had consistently attended school—they were either late, had bad days, were taken out early, or did not go to school at all. She described her anxiety as being at an all-time high and said she could not eat or think straight, adding that he was having trouble coping with the convergence of issues in her life, and claiming financial and emotional distress. For her part, Ms. McClymont testified that she was unable to recall the applicant doing activities with her children in January 2019.

37We placed little weight on the applicant’s intimate relationship as evidence of improved functioning prior to the accident. While the applicant agreed she had not produced any evidence that corroborated when she began this relationship, we accept it started within a month of the accident. The applicant testified that she began this relationship after the murder of her estranged husband, but prior to the accident. She told Dr. Gerber that she reconnected with her partner in December 2018 and that the relationship became intimate in January 2019. Ms. McClymont recalled being first introduced to the applicant’s partner in January 2019, but was aware they were talking on the phone in December 2018. The applicant testified that up to the accident, she would accompany her partner to dinner and the casino, socialize with him at home, talk on the phone, and go for drives.

38In our view, the applicant’s recollections of the short time spent with her partner before the accident are not consistent with her testimony about her condition during this period, or the symptomology and limitations she expressed in her letter to her LTD provider in January 2019. The applicant had recounted functional limitations at this time that included fatigue, low mood, depression, and anxiety. Her letter indicates she was still experiencing panic over the murder of her estranged husband. She was torn apart and broken—avoiding the outside world and just trying to survive. Her anxiety was at an all-time high, and she was not attending to her children or eating. The applicant could not think straight, had coping issues, and was in financial and emotional distress. We therefore do not agree that her new relationship was a persuasive indicator of improvement in her condition or of an attempt to get her life back on track before the accident. Even if we did, the weight we would assign is marginal given the applicant’s mental and behavioural difficulties had spanned at least three years before the accident and the relative recency and short duration of the relationship to the accident.

39We did not accept the “Odyssey” evidence referenced by the applicant as proof that she was getting her life “back on track” in the several months prior to the accident. The applicant pointed to a June 2019 letter from Odyssey Health Services to show she was making attempts to return to work prior to her accident. On the contrary, we find this letter is dated post-accident and references testing that occurred in March 2019—also post-accident. While we accept the applicant was originally referred to Odyssey pre-accident in April 2018, we find the two letters from her LTD provider—one dated December 18, 2018, and the other January 16, 2019—indicate she had since been non-responsive (i.e., not returning calls) to their requests that she complete her assessment for almost a year. The applicant did not point us to evidence that convinced us otherwise.

40In our view, the pre-accident evidence establishes on balance that the impairments and psychological symptomology relied upon by the applicant to prove catastrophic impairment were continuously evident since at least 2016 and up to the time of the accident. Further, we find this evidence does not support the applicant’s claim that her mental health or functionality improved at any point in the year leading up to the accident.

After the accident

41We are not convinced that the applicant’s functionality and symptomology post-accident was worse than her pre-accident condition.

42The applicant testified that her post-accident condition deteriorated because her physical and emotional issues worsened. She said she felt the accident had “knocked me down” and that she could not recover after being “buried” with new problems. However, the applicant did not point to a contemporaneous medical opinion from a treating physician that supported a worsening mental health condition after the accident.

43In our view, the applicant’s post-accident complaints about her psychological symptoms and limitations were consistent with those before the accident. The applicant related that after the accident, it was hard to get out of bed or do anything, and that even just going to an appointment took all the energy out of her for the next day. This was corroborated by Ms. McClymont, who described the applicant as “completely out” (i.e., sleeping all the time, difficult to wake up, staying in room during family events, not going outside the house, and not cleaning, eating, doing dishes, or changing her clothes). We find this is not substantively different from the symptomology and functional limitations described in her CPP application and letter to her LTD provider—same for Ms. McClymont’s observations that the applicant forgot a lot and would not consistently accept phone calls or texts.

44Similarly, we were not persuaded that the applicant’s testimony about having no drive, energy or focus to do things after the accident was any different than her pre-accident condition. We did not place much weight on the applicant’s claim that her estranged husband’s death affected (i.e., amplified) her emotional response to the accident because she did not point to a contemporaneous medical opinion that supports this perspective. While the applicant related that family events like movie and pizza nights stopped after the accident, we find this is not unlike before the accident when she told CPP that all events involving her children stopped as of May 2016; that her kids were not involved in activities after the murder, and that Ms. McClymont—who testified she visited the applicant daily in the several months leading up to the accident—could not recall the applicant doing things with her children in January 2019.

45We disagree that the applicant’s cognitive function became worse after the accident. While the applicant testified that her cognitive functioning deteriorated post-accident, we were persuaded by the cognitive testing completed by Dr. Dief in July and August 2016. During cross examination, the respondent pointed to more than 20 cognitive functions that could be scored in one of three ways: no restrictions, limited capacity, or unable to perform. On both tests, Dr. Dief assessed the applicant was unable to perform on every measure. He further noted the applicant was being treated for major depression and was undergoing psychotherapy. Dr. Dief listed the applicant’s limitations as psychomotor slowing, low energy, concentration, and memory. The applicant agreed these assessments were accurate at the time they were performed, and we find she did not point to any test since then that showed her cognitive function had worsened since the accident. Similarly, the applicant did not point to any medical reports that substantiated her complaints of irritability, arguments and fights post-accident.

46We are not convinced that the applicant’s post-accident medication changes showed her condition had worsened to a catastrophic level. The applicant submitted that Dr. Dief maintained the same prescriptions up to the accident. During her direct examination, the applicant testified that her medications were “stronger” after the accident, and she pointed to Cipralex in particular. The applicant also maintained that Lorazepam was added to her prescriptions after the accident, although she explained that she no longer takes this medication. We did not place much weight on this evidence because the applicant did not point to a medical opinion that confirmed any prescription changes were attributed to worsening symptoms or limitations. In our view, the applicant’s overall response to her treatment has been poor throughout her pre-accident history. In September 2016, the applicant reported poor therapeutic benefit from medication, which continued to be adjusted at that time. In April 2017, Dr. Dief recommended the applicant increase the frequency of her cognitive behavioural therapy because her response was minimal. And in July 2018, Dr. Dief confirmed a poor prognosis despite ongoing treatment with medication and therapy. While there are post-accident records completed by Dr. Abbas Azadian (psychiatrist) as recently as 2021 in evidence, we find the applicant’s reliance on these were to show he recommended ongoing psychotherapy and that the applicant’s medications be reduced, which do not support the applicant’s position.

The evidence of Dr. Gerber

47We agree with the respondent’s position that Dr. Gerber underestimated the applicant’s pre-accident function, and therefore place less weight on his report.

48Dr. Gerber met with the applicant virtually to assess her functionality on September 20, 2023. Dr. Gerber’s report—a rebuttal to the respondent’s catastrophic impairment determination report of February 6, 2023—was completed on November 10, 2023.

49During the hearing, the applicant pointed to Dr. Gerber’s summary of the applicant’s psychiatric history—as well as the list of documents he was provided for review—to demonstrate that he acknowledged her pre-existing impairments and the impact of her estranged husband’s murder while performing his catastrophic assessment. While we accept Dr. Gerber noted the applicant had pre-existing diagnoses and mental health treatments, we find the applicant did not establish that Dr. Gerber’s analysis contemplated the extensive medical evidence in the applicant’s CPP file, or her pre-accident interactions with her LTD provider, despite having those documents available. In our view, Dr. Gerber’s three-paragraph summary of the applicant’s psychiatric history—which does not mention the October 2018 murder—relied on the applicant’s self-report, with no references made to any pre-accident medical records of her treating or assessing physicians. This diminished the weight we afforded to Dr. Gerber’s report because the applicant’s medical history is remarkable for psychological impairments that continued unabated despite treatment interventions for at least three years before the accident, and, according to Dr. Dief, constituted a “very severe” mental or behavioural disorder accompanied by “frequent symptomology” and “serious impairment” in social and occupational functioning as of June 2017.

50The applicant also pointed to the collateral information provided to Dr. Gerber by Ms. McClymont and Ms. McKee-Oates. We find Dr. Gerber informed his conclusions by relying on the post-accident behavioural changes observed by Ms. McClymont, such as needing cues to bathe, showing little socialization, and second-guessing herself. In his report, Dr. Gerber also referenced Ms. McKee-Oates’ observations of no phoning or bathing, poor memory, and her opinion that the applicant would be a hazard if she returned to work. However, we were not shown that Dr. Gerber reconciled these observations with the applicant’s pre-accident medical records, which show these are not new or worsened functional impairments. This too caused us to place less weight on Dr. Gerber’s report.

51We also find that Dr. Gerber’s analysis of the applicant’s cognitive functioning is not reliable. Dr. Gerber’s report voices concerns about cognitive functioning in the context of worsening depressive symptoms. He notes the applicant described ongoing problems with attention, concentration, and memory, including difficulties with decision making, problem solving, and word finding. Dr. Gerber adds that Ms. McClymont and Ms. McKee-Oates described the applicant’s ongoing cognitive problems and how these limit her ability to function. However, Dr. Gerber’s analysis does not speak to the cognitive testing performed pre-accident by Dr. Dief, which showed the applicant was unable to perform any of the tested cognitive activities. Rather, Dr. Gerber qualifies his concern with modified MoCA testing results that showed the applicant scored below the normal range for her age. Dr. Gerber goes on to say that, prior to the accident, one would have expected her to score at least normal. We know this is not true owing to Dr. Dief’s testing and therefore discounted Dr. Gerber’s opinion that the applicant’s function and symptomology worsened after the accident.

52While the applicant submits that Dr. Gerber’s diagnosis of post-traumatic stress disorder supports her claim of worsening symptoms and impairment because this diagnosis was not evident prior to the accident, we find Dr. Gerber did not make this diagnosis. As earlier addressed in this decision, Dr. Gerber indicated that while the applicant presented with ongoing symptoms of post-traumatic stress disorder, she did not meet the full diagnostic criteria at the time he assessed her. Dr. Sharma made a similar finding. In any event, the applicant failed to substantiate that she reported her symptoms—nightmares, flashbacks, nausea, sleep disturbances, and more frequent headaches—to any of her treating or assessing physicians up to her assessment with Dr. Gerber some four years and seven months after her accident. Further, the applicant did not point to evidence that convinced us this symptomology affected her functionality. As such, we placed little weight on this evidence.

The evidence of Ms. Rozenfeld

53We placed little weight on the evidence of Ms. Rozenfeld when considering the applicant’s catastrophic claim for reasons similar to those involving Dr. Gerber’s evidence.

54Ms. Rozenfeld completed an occupational therapy situational evaluation over two days (June 13 and 14, 2023) as part of the applicant’s catastrophic impairment determination assessment. Ms. Rozenfeld’s final report was completed on July 3, 2024.

55During the hearing, Ms. Rozenfeld recalled the applicant’s medical history as “very minor.” She testified that she was only aware of one medication (i.e., Wellbutrin) the applicant was taking pre-accident, and that aside from anxiety in 2016 she was otherwise fine. Ms. Rozenfeld recounted that while the applicant had been unable to work since 2016, she was working with her doctor on her mental health concerns to get back on track, and that she had gotten herself together and was able to do many of her daily living activities by 2019. When aspects of the applicant’s CPP questionnaire were put directly to Ms. Rozenfeld during direct examination, she expanded on her insight by saying the applicant had made her aware of those issues, but was getting support, improving, and doing more things than she was doing after the accident.

56We find this account of the applicant’s pre-accident history is inconsistent with the bulk of the evidence in this case. We also find that Ms. Rozenfeld did not take all of the applicant’s medical history into account. For example, she was unaware that the applicant was taking multiple prescribed medications prior to the accident. While Ms. Rozenfeld agreed it is helpful to determine baseline function (i.e., pre-accident function) to inform her assessment, she testified that going back to 2016 was not an indicator of the applicant’s capabilities right before the accident because two to three months pre-accident is the “important time” to assess how the applicant’s function has changed. Ms. Rozenfeld explained that she generally allows for a two-to-three-month time frame prior to an accident and agreed that any questions she asked about the pre-accident period during her assessment would be restricted to this window. Under cross-examination, Ms. Rozenfeld did not recall the CPP information, and did not think she contemplated the LTD or CPP evidence in her report. Ms. Rozenfeld remembered reading about it “in a brief somewhere,” but was not entirely sure where she read it or if she talked about it in her analysis. In our view, given the applicant’s substantial medical history, these factors reduce the reliability of Ms. Rozenfeld’s analysis and conclusions, such that they merit less weight.

Conclusion

57Taken together on a balance of probabilities, we find this evidence does not support the applicant’s claim of marked impairments owing to a mental or behavioural disorder as a result of the accident. While we concur that the applicant’s functionality is indeed impaired to at least a moderate degree in all four areas of function, we find the respondent’s arguments on causation have merit and diminish the weight of the applicant’s position. When we consider the but for test as raised by the respondent, we agree the evidence in this case does not establish the accident as a necessary cause of the applicant’s impairments, given that her symptomology and functional impairments pre-and-post-accident were not distinguishable. Further, the evidence establishes that despite receiving multiple therapeutic interventions for her psychological condition over the course of her pre-accident medical history, the applicant’s prognosis remained poor with no significant improvement.

58As the applicant’s evidence did not meet her onus to prove catastrophic impairment, we find it is not necessary to address the applicant’s position on the weight we should afford the respondent’s evidence.

The applicant is not entitled to attendant care benefits

59We find the applicant has not established her entitlement to attendant care benefits.

60Section 19(1)(a) of the Schedule outlines the legal test related to attendant care benefits. In order to establish that attendant care benefits be payable, the applicant needs to prove the expenses are reasonable and necessary, and that the expenses are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility.

61The applicant submits she required reminders from a remote service provider to do her personal care activities, make and eat meals, and take her medications.

62The respondent argued that the applicant has failed to show her attendant care expenses are reasonable and incurred. The respondent reasoned that the expenses claimed by the applicant cannot be incurred because there is no person providing attendant care services (i.e., the services are provided by proprietary software that sends automated daily activity reminders to the applicant via text). The respondent says this is not attendant care because it is not consistent with the Form 1 produced by the applicant. The respondent adds that because the applicant led no evidence of incurred expenses, the applicant cannot prove this service is reasonable and necessary.

63We find there are two in-home occupational therapy assessment reports in evidence, both of which have a Form 1. The first was completed by Mr. James Moorthy (occupational therapist) on December 23, 2019, and assessed a monthly attendant care benefit of $3,229.02. The updated report was completed by Mr. Pawan Chopra (occupational therapist) on July 23, 2022, and assessed a monthly attendant care benefit of $3,078.90. In our view, the applicant relied on the report and Form 1 completed by Mr. Moorthy as it is consistent with the monthly value of the disputed benefit as confirmed by the parties in the CCRO for this matter.

64For context, the parties are disputing the reasonableness and necessity of expenses associated with Invisible Care, a service provider that offers remote attendant care services through technological platforms (i.e., proprietary software) and hands-on direct assistance.

65We placed less weight on Mr. Moorthy’s report and the Form 1 he completed for several reasons. While Mr. Moorthy documented and assessed the applicant’s memory issues, we find the applicant did not establish that Mr. Moorthy’s attendant care recommendations specified a need for cueing or reminders relating to her personal care activities, making and eating meals, and taking her medications. In his report, Mr. Moorthy attributes the applicant’s personal care and meal preparation needs to impairments in her physical functioning and pain. Mr. Moorthy commented that the applicant demonstrated the required abilities to administer her own medications with the support of a blister pack. Pertaining to the applicant’s memory difficulties, Mr. Moorthy indicated an occupational therapy cognition assessment be done in conjunction with a neuropsychology referral, which, in our view, does not support the need for remote reminders or cueing. We also considered, albeit to a lesser degree, that the applicant did not rely on Mr. Moorthy’s evidence to support her entitlement to attendant care benefits. We find the report was put only to Mr. Naval during cross-examination to support the applicant’s award claim and qualify how the respondent considered this evidence while adjusting the applicant’s file. In our view, this hindered the applicant’s case and does not support the applicant’s onus to prove entitlement to her attendant care benefits.

66We were not persuaded by the progress reports obtained from Invisible Care and do not accept that they show Mr. Moorthy made a recommendation for remote cueing services. The applicant pointed to the progress report completed by Ms. Kelli Brent (personal support worker) on July 31, 2023, to show she was scheduled for meal reminders, morning and evening check-ins, and sleep hygiene. The applicant also referred to a second progress report completed by Ms. Brent on August 31, 2023, to show she was also receiving prompts to take her medication, and that she would often not do things due to pressure and ruminating thoughts (i.e., anxiety and fears). While we accept those progress reports identify cueing and schedule prompting as a Form 1 task, the report does not indicate which Form 1 is being referenced and, to reiterate, we were not pointed to where cueing and schedule prompting is addressed in Mr. Moorthy’s report or Form 1.

67As well, we find the applicant did not establish what attendant care—as assessed on the Form 1—she received and incurred for the disputed period. The applicant’s attendant care claim starts November 20, 2019, but the applicant pointed only to Invisible Care progress reports from July 2023 to September 2023. Further, the applicant did not direct us to evidence that convinced us she had incurred expenses associated with that care or provide an analysis of how the $3,229.02 assessed by Mr. Moorthy breaks down.

68We find Ms. Rozenfeld was not retained to complete a Form 1 or evaluate the applicant in an attendant care context. While Ms. Rozenfeld corroborated the applicant’s post-accident cognitive difficulties that relate to her memory issues and forgetfulness, she confirmed in her testimony that she was retained to do an occupational therapy assessment of the applicant‘s functionality for a catastrophic impairment determination. Ms. Rozenfeld agreed during the hearing that this was different from an in-home assessment that is generally used to complete a Form 1. As such, and owing also to Ms. Rozenfeld’s limited review and analysis of the applicant’s pre-accident medical history as referenced earlier in this decision, we assigned Ms. Rozenfeld’s evidence less weight as it relates to the parties’ dispute in attendant care.

69Taken together on balance, we find this evidence does not establish the applicant’s entitlement to attendant care expenses of $3,229.02, or any portion thereof that relates to expenses associated with Invisible Care.

The applicant is not entitled to the treatment plans in dispute

70We find that the applicant has not met her onus to show she is entitled to any of the treatment plans in dispute.

71To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

72The applicant submits that the treatment plans are reasonable and necessary to address her accident-related physical pain. The respondent disagrees and argues that three of the four treatment plans were partially approved, the one for shockwave therapy being the exception. The respondent asserts the applicant had not led or pointed to evidence that establishes the reasonableness and necessity of the treatment plans and referred to a February 2021 report completed by Dr. Lori Feigelson (physiatrist), which does not recommend the applicant undertake any more formal physical therapy. The respondent also pointed to Ms. Rozenfeld’s report to show that the applicant has not seen her family physician since March 2021, and has therefore only been followed by Dr. Azadian for psychiatric care for the past three years.

73We agree that the applicant has not met her onus here. She did not lead evidence as to why these treatment plans, all of which relate to treatment of her physical injuries, are reasonable and necessary. Given that the applicant bears the onus of proof and has failed to discharge this, we find the treatment plans are not reasonable and necessary. Therefore, the applicant is not entitled to them, and no interest is payable.

Award

74The applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. This Tribunal has adopted the definition of unreasonable behaviour to be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate—see, for example: Branden v. Co-Operators General Insurance Company, 2021 CanLII 18917 (ON LAT); Carleton v Unica Insurance Inc., 2022 CanLII 87727 (ON LAT). The Tribunal has also held that insurers must not be held to a standard of perfection, in that a simple mistake or an incorrect decision does not automatically justify an award.

75The applicant argues that she was improperly held in the MIG for more than three years, which capped her benefits at $3,500.00 and thereby delayed her ability to receive treatment—particularly her attendant care benefits, which she argues was requested on a Form 1 well prior to her removal from the MIG. The applicant says this delay exacerbated her symptoms and caused her disability.

76The respondent submits it did not unreasonably delay the applicant’s benefits because all the treatment plans in dispute, save the shockwave therapy, were submitted and partially approved while the applicant was in the MIG. It adds that the applicant produced no evidence to show any of the benefits proposed in the partially approved plans were used.

77Given that the applicant has not proven entitlement to attendant care benefits, we do not agree that the respondent unreasonably withheld or delayed payment of this benefit.

78Pertaining to the disputed treatment plans, the applicant has failed to show they are reasonable and necessary. As there are no benefits owing, we disagree that the applicant has shown the respondent unreasonably withheld or delayed payment.

79We therefore find the respondent is not liable to pay an award in this case.

ORDER

80The applicant has not sustained a catastrophic impairment as defined by the Schedule. The applicant is not entitled to attendant care benefits, nor the disputed treatment plans. The respondent is not liable to pay an award and no interest is payable.