Omidvari v. Intact Insurance Company, 2024 CanLII 99647

Citation: Omidvari v. Intact Insurance Company, 2024 ONLAT 23-006065/AABS

Licence Appeal Tribunal File Number: 23-006065/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:

Fariba Omidvari

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ludmilla Jarda

APPEARANCES:

For the Applicant:

Adam Asgarali, Counsel

For the Respondent:

Murleen McLean, Counsel

Kristen Ogden, Counsel

Court Reporter:

Kyle Climans

Interpreter:

Sorour Azizi, Farsi language

Heard by Videoconference:

September 16, 2024

OVERVIEW

1Fariba Omidari (the “applicant”) was involved in an automobile accident on August 5, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Intact Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

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

2. Is the applicant entitled to $3,710.72 for physiotherapy services, proposed by Wilson Massage & Physio Ltd in a treatment plan/OCF-18 dated January 13, 2023?

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

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

RESULT

3For the reasons that follow, I find that:

1. The applicant is not catastrophically impaired under Criterion 6, 7, or 8.

2. The applicant is not entitled to the disputed treatment plan.

3. The applicant is not entitled to interest.

4. The respondent is not liable to pay an award.

PROCEDURAL ISSUE

Adverse Inference

4The respondent requests that the Tribunal draw an adverse inference against the applicant for failing to call any expert witnesses at the hearing. The respondent notes that there are discrepancies in the applicant’s expert reports which it could not address through cross-examination.

5While the applicant submits that her expert reports are comprehensive, she did not have the opportunity to address the respondent’s submissions on this issue as it was raised for the first-time during closing arguments.

6In the circumstances, I am not prepared to draw an adverse inference on the applicant’s evidence for not calling any expert witnesses. 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 the hearing, whether 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. As such, the Tribunal shall afford the weight it deems appropriate to the applicant’s expert evidence.

ANALYSIS

Catastrophic Impairment Determination

7The applicant bears the onus of proving, on a balance of probabilities, that as a result of the accident, she is catastrophically impaired under the Schedule. I find that she has not done so.

8The 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 she is catastrophically impaired under Criteria 6, 7, and 8.

The applicant does not suffer from a catastrophic impairment under Criterion 6

9I find that the applicant has not demonstrated, on a balance of probabilities, that she has a physical impairment or a combination of physical impairments as a result of the injuries sustained in the accident that results in a whole person impairment (“WPI”) of 55% or more.

10To qualify under Criterion 6, the applicant must prove that she has a physical impairment or a combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th Edition, 1993 (“Guides, 4^th Edition”) results in 55% or more physical WPI.

11She relies on a catastrophic impairment rating report dated June 1, 2021 completed by Dr. Zbigniew Andrzet Marciniak a.k.a. Dr. Z. (Marc) Marciniak, physician. Dr. Marciniak concluded that the applicant sustained a WPI of 59% under Criterion 6.

12The respondent relies on a neurology examination report completed by Dr. Nagib Yahya Ramadan Yahmad, neurologist, a physiatry examination report completed by Dr. Shariff Dessouki, physiatrist, and an AMA Guides Rating Summary Report completed by Dr. Howard Seiden, physician, all dated February 11, 2022. Dr. Seiden concluded that the applicant sustained a WPI of 0% under Criterion 6.

13The chart below provides a summary of both parties’ assessors’ rating regarding Criterion 6.

Impairment

Applicant’s WPI%

Respondent’s WPI%

Post-traumatic Headaches / Dizziness

5%

0%

Cervical Spine

19%

0%

Lumbar Spine

15%

5%

Grip Strength

12%

0%

Right Shoulder

11%

0%

Gait Derangement

11%

0%

Medication

7%

0%

Chronic Pain

5%

0%

Total Physical WPI %

59%

0%

Post-Traumatic Headaches / Dizziness

14Per Table 23 in Chapter 4 of the Guides, 4^th Edition 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.

15Per Table 11 in Chapter 4 of the Guides, 4^th Edition under Impairment Criteria for Cranial Nerve VIII (Auditory Nerve), a rating between 1% to 9% WPI is permitted for dizziness when minimal impairment of equilibrium exists, with limitation required only of activities in hazardous surroundings.

16I find that Dr. Marciniak’s clinical observations do not support a 5% WPI for post-traumatic headaches/dizziness. Although Dr. Marciniak noted that following the accident, the applicant was placed on a backboard with a hard collar which is an indication that serious neck injuries were suspected, according to the Mackenzie Richmond Hill Hospital record dated August 5, 2018, following the accident, Dr. Paul Gibbons Gomez, physician, examined the applicant and concluded that she only sustained soft tissue injuries as a result of the accident.

17Further, in his report, Dr. Marciniak makes no plausible connection between the applicant’s reported headaches and trauma stemming to the greater occipital nerves, and he did not assess the greater occipital nerves. Also, neither Dr. Yahmad nor Dr. Dessouki found an impairment to the greater occipital nerves when they assessed the applicant. Dr. Yahmad concluded that the applicant’s headaches were likely cervicogenic and musculoskeletal. On physical neurological examination, there was no pain or pins and needles or numbness over the scalp produced by applying mild pressure or tapping on the greater or lesser occipital nerves on the back of the skull. Further, there was no evidence that the applicant sustained a traumatic brain injury as a direct result of the accident, and there was no evidence of any neurological injury, including myelopathy, plexopathy, or any active or ongoing radiculopathy or neuropathy as a result of the accident. As for Dr. Dessouki’s findings, he noted that Tinel’s over the greater occipital nerves was negative on both sides.

18Moreover, the evidence does not support a finding that a rating for dizziness is appropriate in the present case. Although Dr. Marciniak noted that the suspected neck injuries, which I rejected above, resulted in headaches and vertigo, the evidence does not support that the applicant suffers from vertigo as a result of the accident. The applicant’s history of vertigo is well documented, she was diagnosed with benign paroxysmal positional vertigo in 2016. Further, there is no indication in Dr. Marciniak’s report that he assessed the applicant in hazardous surroundings, and the evidence does not suggest that the applicant suffers from a minimal impairment of equilibrium with limitation required only of activities in hazardous surroundings.

Spine

19There are two methods for assessing the spine: (1) the Injury Model, and (2) the Range of Motion Model. Per Section 3.3 of the Guides, 4^th Edition under The Spine, the evaluator assessing the spine should use the Injury Model if the applicant’s condition is one of those listed in Table 70. If none of the eight categories of the Injury Model is applicable, then the evaluator should use the Range of Motion Model.

20Per Table 73 of Chapter 3 of the Guides, 4^th Edition under DRE Cervicothoracic Spine Impairment, a rating of 15% is permitted for radiculopathy (Category III), and a rating of 25% is permitted for loss of motion segment integrity (Category IV).

21Per Table 72 of Chapter 3 of the Guides, 4^th Edition under DRE Lumbosacral Spine Impairment, a rating of 5% is permitted for a minor impairment, a rating of 10% is permitted for radiculopathy (Category III), and a rating of 20% is permitted for loss of motion segment integrity (Category IV).

22I find that the evidence does not support a 19% WPI for the cervical spine. Under the Injury Model, Dr. Marciniak assigned a rating of 20% WPI which is a mid-range between Category III and Category IV, and under the Range of Motion Model, he assigned a rating of 19% WPI. After considering both models, Dr. Marciniak opted to rely on the Range of Motion Model as the rating was the lowest of the two methods used. I do not agree with Dr. Marciniak’s methodology as he preferred the rating under the Range of Motion Model over the Injury Model. The Guides, 4th Edition are clear that in the circumstances the Injury Model should be preferred.

23The applicant has not directed the Tribunal to any evidence to support that she suffers from radiculopathy, or a loss of motion segment integrity as described in Section 3.3h of the Guides, 4^th Edition under Cervicothoracic Spine Impairment. Further, Dr. Marciniak’s clinical observations do not support that the applicant has significant signs of radiculopathy, such as (1) loss of relevant reflexes or (2) unilateral atrophy with greater than a 2-cm decrease in circumference compared with the unaffected side, measured at the same distance above or below the elbow. Further, the evidence does not support that the applicant has loss of motion segment or structural integrity or bilateral or multilevel radiculopathy.

24Dr. Dessouki also assessed the applicant and concluded that she sustained a musculoligamentous injury of the cervical spine. On examination, her range of motion was within normal limits, with reported contralateral pain with rotational movements. Although palpation of the upper fibres of trapezius was tender, no spasm was documented.

25I further find that the evidence does not support a 15% WPI for the lumbar spine. Dr. Marciniak reviewed an X-ray of the lumbar spine dated August 13, 2019, and an MRI of the lumbar spine dated March 8, 2020, and he noted that on physical examination, the applicant’s range of motion was limited, and there was tenderness on palpation over the lumbar paraspinals. He also indicated that orthopaedic tests were positive for nerve root irritation bilaterally. Dr. Marciniak ultimately assigned a rating under the Injury Model which is a mid-range between Category III and Category IV.

26However, the applicant has not directed the Tribunal to any evidence to support that she suffers from radiculopathy, or a loss of motion segment integrity as described in Section 3.3g of the Guides, 4^th Edition under Lumbosacral Spine Impairment. Further, Dr. Marciniak’s clinical observations do not support that the applicant has significant signs of radiculopathy, such as loss of relevant reflexes, or measured unilateral atrophy of greater than 2 cm above or below the knee, compared to measurements on the contralateral side at the same location. Further, the evidence does not support that the applicant has loss of motion segment integrity or structural integrity.

27Nevertheless, Dr. Dessouki concluded that the applicant sustained a musculoligamentous injury of the lumbar spine. On examination, her range of motion was moderately reduced in forward flexion with reported pain complaints. Palpation of the thoracolumbar spinous process, sacroiliac joints, paraspinals, and quadratus lumborum muscles was reported to be diffusely tender. There was guarding, but no spasm was documented. Based on Dr. Dessouki’s findings, Dr. Seiden assigned a 5% WPI for the lumbar spine.

Upper Extremities: Right Shoulder and Grip Strength

28Per Section 3.1j of the Chapter 3 of the Guides, 4^th Edition under Shoulder, a WPI% rating is permitted for impairments due to abnormal shoulder motions (flexion and extension, abduction and adduction, internal and external rotation).

29Per Section 3.1m of Chapter 3 of the Guides, 4^th Edition 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, 4^th Edition under Strength Evaluation, because strength measurements are functional tests influenced by subjective factors that are difficult to control, and the Guides, 4^th Edition for the most part is based on anatomic impairment, the Guides, 4^th Edition do not assign a large role to such measurement.

30The upper extremity ratings for the right shoulder and grip strength are combined in accordance with Table 3 of Chapter 3 of the Guides, 4^th Edition under Relationship of Impairment of the Upper Extremity to Impairment of the Whole Person, to calculate the WPI% rating.

31I find that the evidence does not support an 11% WPI for the right shoulder and 12% WPI for grip strength. Dr. Marciniak indicates that the applicant’s range of motion is restricted, and he assigns an 18% right shoulder impairment, which translates into an 11% WPI using Table 3 of Chapter 3 of the Guides, 4^th Edition. Alternatively, Dr. Marciniak states that a rating for the applicant’s shoulder problems can be attributed under Table 14 of Chapter 4 of the Guides, 4^th Edition under Criteria for One Impaired Upper Extremity and Table 15 of Chapter 4 of the Guides, 4^th Edition under Criteria for Two Impaired Upper Extremities. Ultimately, he finds that a rating under the range of motion method is a more proper reflection of the applicant’s impairment for her right shoulder dysfunction. Dr. Marciniak also noted that the applicant is right hand dominant and based on his grip strength testing, he assigns a 20% strength loss, which translates to a 12% WPI using Table 3 of Chapter 3 of the Guides, 4^th Edition.

32I find, however, that the evidence does not support that the applicant suffers from an impairment to the shoulders or grip strength as a result of the accident. Rather, there is evidence that the applicant has a pre-existing shoulder injury, that she experienced left hand pain and tingling, and that she was diagnosed with carpel tunnel syndrome prior to the accident.

33Further, the applicant was assessed by Dr. Sabrina Ming-Wai Tu, physician, who completed a musculoskeletal report dated July 30, 2019. Dr. Tu did not provide an accident-related diagnosis for the applicant’s shoulder complaint. The applicant was assessed by Dr. Eric Silver, physician, who noted in his musculoskeletal report dated August 25, 2020 that the applicant did not complain of shoulder pain. Her left shoulder range of motion was full and pain free. Although she had subjective reports of pain with orthopaedic testing in her right shoulder, no accident-related shoulder impairment was noted. As for Dr. Dessouki’s examination, the range of motion in the applicant’s shoulders were generally within normal limit, and there was no objective evidence of impairment to the shoulders aside from self limited range of motion.

Lower Extremities: Gait Derangement

34Per Section 3.2b of the Chapter 3 of the Guides, 4^th Edition under Gait Derangement, a rating of 7%, 10%, or 15% WPI is permitted for mild lower extremity impairments. Four different patient’s signs are identified in Table 36 under Lower Limb Impairment from Gait Derangement to assist in determining the appropriate WPI rating for a mild impairment.

35I find that the evidence does not support an 11% WPI for gait derangement. Dr. Marciniak noted that the applicant has difficulty ambulating and uses a cane, which warrants a rating under the Guides, 4^th Edition. He found that the applicant’s gait impairment was as a result of restrictions to her left hip and right knee. He notes that her range of motion in her left hip is restricted, and that she re-injured her left hip when she tripped and fell in November 2020. Dr. Marciniak concluded that the applicant’s impairment was mild. However, the WPI rating assigned by Dr. Marciniak is not consistent with the ratings permitted by the Guides, 4^th Edition.

36I further find that the evidence does not support that the applicant sustained a left hip injury as a result of the accident, and I note that Dr. Marciniak did not provide a rating for impairment of the hip. Moreover, Dr. Seiden indicated that passive hip range of motion was untestable due to guarding, but in any event, the evidence supports that the applicant’s left hip impairment is not related to the accident. A review of the applicant’s diagnostic imaging taken following the applicant’s trip and fall accident of November 6, 2020, including the MRI of the left hip dated November 21, 2020, shows tendinosis in a specific area and findings that may be the result of degeneration or partial tear. There are no positive findings to support that these results are because of the accident.

Medication

37Per page 9 of Chapter 2 of the Guides, 4^th Edition 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.

38I find that the evidence does not support a 7% WPI for medication. While Dr. Marciniak included a list of medication in his report, there is no indication in his report that the medication is being taken to treat accident-related injuries. Further, the WPI rating assigned by Dr. Marciniak is not consistent with the rating range permitted by the Guides, 4^th Edition.

Chronic Pain

39Per Section 15.1 of Chapter 15 of the Guides, 4^th Edition under Basic Assumptions, pain is assumed in impairment ratings. As such, there is no need to rate pain separately.

40I find that the evidence does not support a 5% WPI for chronic pain. Dr. Marciniak notes that while pain is not an impairment according to the Guides, 4^th Edition, pain is an impairment when it impairs function. He assigned a rating for chronic pain because based on his review of in-home activities of daily living assessments and other functional assessment, the applicant has a number of limitations, and she is unable to function normally. However, assigning a rating for pain separately is inconsistent with the methodology set out in Chapter 15 of the Guides, 4^th Edition. Also, it is unclear what in-home activities of daily living assessments and other functional assessments Dr. Marciniak is referring to as none were identified in his report under “Review of Medical Brief and Additional Medical Records.”

41Accordingly, the applicant has not established, on a balance of probabilities, that she sustained a catastrophic impairment under Criterion 6.

The applicant does not suffer from a catastrophic impairment under Criterion 7

42I find that the applicant has not demonstrated, on a balance of probabilities, that she has a combination of physical and psychological impairments as a result of the injuries sustained in the accident that results in a WPI of 55% or more.

43To qualify under Criterion 7, the applicant must prove that she 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 Association’s Guides to the Evaluation of Permanent Impairment, 6^th Edition, 2008 (“Guides, 6^th Edition”) and is combined with the physical WPI rating from the Guides, 4^th Edition using the Combined Values Table. An impairment percentage derived by means of the Guides, 4^th Edition is intended to represent an informed estimate of the degree to which an individual’s capacity to carry out daily activities has been diminished.

44The applicant relies on a psychiatric catastrophic determination assessment dated March 30, 2021 completed by Dr. Felix Yaroshevsky, psychiatrist, and Dr. Marciniak’s report. Dr. Marciniak concluded that the applicant sustained a WPI of 75% under Criterion 7.

45The respondent relies on a psychiatry examination report completed by Dr. Joel Nathan Eisen, psychiatrist, an in-home occupational therapy assessment report and an occupational therapy situational assessment report, both completed by Christina Phillips, occupational therapist, all dated February 11, 2022, as well as the reports of Dr. Yahmad, Dr. Dessouki, and Dr. Seiden. Dr. Seiden concluded that the applicant sustained a WPI of 10% under Criterion 7.

46Further, although Dr. Seiden assigned a WPI of 0% under Criterion 6 for the applicant’s physical impairment, under Criterion 7, he assigned a WPI of 5% for the applicant’s physical impairment. The respondent did not provide an explanation for this discrepancy.

47The chart below provides a summary of both parties’ assessors’ rating regarding Criterion 7.

Impairment

Applicant’s WPI%

Respondent’s WPI%

Physical

Total Physical WPI%

59%

5%

Mental and Behavioural

Brief Psychiatric Rating Scales (BPRS)

40%

15%

Global Assessment of Functioning Scale (GAF)

30%

10%

Psychiatric Impairment Rating Scale (PIRS)

40%

10%

Total Mental & Behavioural WPI%

40%

10%

Total Combine Ratings

Total WPI%

75%

10%

48The applicant relies on Dr. Marciniak’s 40% WPI for a mental and behavioural impairment. Dr. Marciniak assigned this rating based on Dr. Yaroshevsky’s report. Dr. Yaroshevsky noted that there is a pre-existing history of affective dysregulation, and that the applicant meets the diagnosis of Dysthymia, now known as Persistent Depressive Disorder. Further, he found that as a result of the accident, the applicant experienced an exacerbation of her pre-existing chronic mood disorder.

49Utilizing Chapter 14.6 of the Guides, 6^th Edition, Dr. Yaroshevsky assigned the applicant a Brief Psychiatrist Rating Scale (“BPRS”) score of 69, corresponding to 40% BPRS impairment score; a Global Assessment of Functioning (“GAF”) score in the range of 21-30, corresponding to 30% GAF impairment score; and a Psychiatric Impairment Rating Scale (“PIRS”) score of 8, corresponding to 40% PIRS impairment score. Dr. Yaroshevsky found that this resulted in a percentage median value of 40% WPI.

50The respondent relies on Dr. Seiden’s 10% WPI for a mental and behavioural impairment. Dr. Seiden assigned this rating based on Dr. Eisen’s report. Dr. Eisen concluded that the applicant suffered from depressive disorder (not yet diagnosed), pre-existing, likely exacerbated by the accident, complex post-traumatic stress disorder, pre-existing, likely exacerbated by the accident, and specific phobia (passenger anxiety).

51Dr. Eisen assigned the applicant a BPRS score of 41, corresponding to 15% BPRS impairment score; a GAF score of 55, corresponding to 10% GAF impairment score; and a PIRS score of 4, corresponding to 10% PIRS impairment score. Dr. Eisen found that this resulted in a percentage median value of 10% WPI.

52I find that the applicant has not established, on a balance of probabilities, that Dr. Yaroshevsky ’s impairment scores should be preferred. Both Dr. Yaroshevsky and Dr. Eisen acknowledge the applicant’s well-documented pre-existing psychological condition, and they both agree that the applicant’s pre-existing psychological condition was exacerbated by the accident. They also agree that the applicant’s post-accident psychological presentation is partly due to the accident, and partly due to non-accident-related psychosocial factors. Despite these similarities, the impairment scores of the parties’ assessors differ significantly, and it is unclear why their opinions differ. Indeed, neither assessor provided particulars of the BPRS, GAF, and PIRS impairment scores, and they only identified the final scores in their reports. Further, Dr. Yaroshevsky relies heavily on the applicant’s self-reporting and reviewed significantly fewer medical records than Dr. Eisen, and there is no indication in Dr. Yaroshevsky ’s report that he considered the findings of an objective functional assessment such as an in-home occupational therapy assessment and an occupational therapy situational assessment.

53Additionally, even if the Tribunal were to accept Dr. Yaroshevsky ’s 40% WPI for mental and behavioural impairments, given that the applicant has not established any WPI% for a physical impairment, the total value of 40% WPI does not meet the 55% WPI threshold for a catastrophic impairment under Criterion 7.

54Accordingly, the applicant has not established, on a balance of probabilities, that she sustained a catastrophic impairment under Criterion 7.

The applicant does not suffer from a catastrophic impairment under Criterion 8

55I find that the applicant has not demonstrated, on a balance of probabilities, that she suffers from a marked impairment in three functional domains or an extreme impairment in one functional domain due to a mental or behavioural disorder as a result of injuries sustained in the accident.

56To qualify under Criterion 8, the applicant must prove that she suffers from an impairment due to a mental or behavioural disorder that, in accordance with the Guides, 4^th Edition, results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 (extreme impairment) in one or more areas of function that precludes useful functioning. When an impairment is not a result of mental or behavioural disorder, such as physically based impairments, it is not factored into the impairment level for a Criterion 8 catastrophic impairment.

57Further, Criterion 8 relies on the Guides, 4^th Edition which set out four areas of functional domains: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, and pace; and (4) adaptation (deterioration or decomposition in work or work like settings). There are five levels of impairment within each domain: Class 1 (no impairment), Class 2 (mild impairment), Class 3 (moderate impairment), Class 4 (marked impairment), and Class 5 (extreme impairment).

58The applicant relies on the reports of Dr. Yaroshevsky and Dr. Marciniak. Dr. Marciniak concluded that the applicant has a marked impairment in the domain of activities of daily living, social functioning, and adaptation, and that she has a moderate impairment in the domain of concentration, persistence, and pace.

59The respondent relies on the reports of Dr. Eisen, Dr. Seiden, and Ms. Phillips. Dr. Seiden concluded that the applicant has a marked impairment in the domain of adaptation and that she has a moderate impairment in the domains of activities of daily living, social functioning, and concentration, persistence, and pace.

Activities of Daily Living

60I find that the applicant does not suffer from a marked impairment or an extreme impairment in the domain of activities of daily living.

61The Guides, 4^th Edition specify that activities of daily living functioning include self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitations in these activities should be related to the mental disorder. In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction. What is assessed is not the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

62I find that there is insufficient evidence to support that the applicant’s accident-related injuries significantly impede useful functioning in the domain of activities of daily living. The applicant reported to Dr. Yaroshevsky that prior to the accident, she looked after all the household chores and responsibilities, and she took care of her adult daughter who has an intellectual disability. She also reported that since the accident, she relies on her son for help as she has difficulty with most activities of daily living and caregiving activities. However, the applicant’s representation to Dr. Yaroshevsky of her ability to engage in activities of daily living prior to the accident and after the accident is inconsistent with what she reported to other physicians and assessors.

63I find that the evidence supports that the applicant is independent in her self-care tasks. Indeed, the applicant testified that she continues to be independent with her self-care tasks, although she reports experiencing some difficulty due to pain.

64I further find that the evidence supports that prior to the accident, the applicant was limited in her ability to engage in her activities of daily living. According to an application for benefits through the Ontario Disability Support Program (“ODSP”) dated May 6, 2016, completed by Dr. Vahid Salimpour, physician, prior to the accident, the applicant was unable to complete her activities of daily living and her instrumental activities of daily living due to her psychiatric issues and chronic pain syndrome.

65Although the applicant reports that she now relies on her son to do laundry and shopping, the evidence does not support that her ability to do laundry is restricted by an accident-related mental or behavioural impairment. Rather, she testified that she was unable to lift heavy things. Also, she testified that she accompanies her son when they go shopping.

66I also find that the evidence supports that following the accident, the applicant continued to engage in social and recreational activities. According to the clinical notes and records of the Canadian Centre for Victims of Torture, following the accident, the applicant volunteered as a tailor at an embroidery class three times per week, and she helped with different art projects related to embroidery, jewelry making, and knitting.

67Considering the above, I find that the applicant has not met her onus of proving that she suffers from a marked impairment or an extreme impairment under the activities of daily living domain.

Social Functioning

68I find that the applicant does not suffer from a marked impairment or an extreme impairment in the domain of social functioning.

69The Guides, 4^th Edition specify that social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords, or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Strengths in social functioning may be documented by an individual’s ability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities. Cooperative behaviour, consideration for others, awareness of others’ sensitivities, and social maturity also need to be considered.

70I find that there is insufficient evidence to support that the applicant’s accident-related injuries significantly impede useful functioning in the domain of social functioning. The applicant reported to Dr. Yaroshevsky that she was having trouble navigating social interactions and that she did not go out or socialize with friends because she was not in the mood. Dr. Yaroshevsky concluded that the applicant had a marked impairment in social functioning because she has an impairment in affect regulation and loss of motivation that significantly restricts relationships with family, friends, and community members. He also noted that she became reclusive, isolative, and avoidant of social and familial interactions. However, Dr. Yaroshevsky does not appear to consider the applicant’s capacity to interact appropriately and communicate effectively with other individuals, nor does he appear to consider in detail the applicant’s pre-accident social functioning.

71Further, when the applicant was assessed by Dr. Eisen and Ms. Phillips, it was noted that prior to the accident, the applicant was mostly isolated because of her refugee status, the fact that she speaks almost no English, and she had a small social circle consisting of her immediate family, her sister, her mother, and two Farsi-speaking friends from the neighbourhood. Since the accident, the applicant enjoys a close relationship with her children. Although she has since separated from her husband, the separation is not because of the accident. Also, while she no longer goes to the park with friends, she continues to socialize with them via telephone. Further, she volunteered at the Canadian Centre for Victims of Torture on several occasions following the accident. She also reports getting along with her physicians and healthcare providers.

72Considering the above, I find that the applicant has not met her onus of proving that she suffers from a marked impairment or an extreme impairment under the social functioning domain. Accordingly, the applicant has not established, on a balance of probabilities, that she sustained a catastrophic impairment under Criterion 8.

73To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of the treatment plan, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

The applicant is not entitled to physiotherapy services in the amount of $3,710.72

74I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated January 13, 2023 for physiotherapy services in the amount of $3,710.72 is reasonable and necessary.

75It is well established that applicants to the Tribunal are obligated to make their own case, and as part of this obligation, applicants must adduce all evidence which they need or intend to rely on.

76In the present case, neither party included a copy of the disputed treatment plan in the evidentiary record. During the hearing, I inquired whether the applicant intended to include the disputed treatment plan as evidence before proceeding to closing arguments. In response, the applicant acknowledged that the disputed treatment plan had not been included as evidence, and she advised that she did not intend to include it. Further, although the respondent included a copy of the treatment plan in its hearing brief, the treatment plan was not marked as an exhibit at the hearing.

77I find that there is insufficient evidence to support that the disputed treatment plan is reasonable and necessary. According to a physiatry report dated August 11, 2023 completed by Dr. Mohammed Abdul Wahab Khan, physiatrist, the disputed treatment plan proposes a physiotherapy assessment, and facility-based physiotherapy, chiropractic, and massage therapy treatment. However, the applicant did not identify the goals of the treatment plan, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

78I further find that the applicant’s evidence and submissions not to be persuasive. The applicant argues that the clinical notes and records of her family physician and her assessors’ reports support that she continues to experience pain as a result of the accident, and therefore, further physiotherapy treatment is reasonably required. Also, relying on an occupational therapy in-home assessment dated October 10, 2020 completed by Varun Madan, occupational therapist, she submits that she requires facility-based therapy as she needs assistance to participate in an exercise program.

79However, Mr. Madan did not review the disputed treatment plan, nor did he express the opinion that the treatment plan was reasonable and necessary. Further, the applicant has not directed me to any evidence to support that the treatment plan was reasonable and necessary at the time that it was submitted to the respondent. Also, while pain relief is a legitimate goal for treatment, the applicant testified that she participated in physiotherapy in the past, and that it was not very helpful.

80Additionally, I find that further facility-based treatment is not reasonable and necessary. The applicant was assessed by Dr. Khan on August 9, 2023. In his report dated August 11, 2023, Dr. Khan diagnosed the applicant with soft tissue injuries, and he found that there were no significant objective accident-related physical impairments or objective ongoing musculoskeletal pathology identified during the examination which would necessitate further facility-based therapy. He opined that the applicant’s prognosis was good, and that the underlying pathology of her injuries was that they heal over time and do not spontaneously deteriorate or degenerate. He acknowledged that that applicant had already undergone a course of facility-based therapy, and he recommended that she engage in a self-directed exercise program with the goal of building strength, endurance, and overall fitness.

81Accordingly, I find that the applicant has not demonstrated entitlement to further physiotherapy.

Interest

82Interest 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.

Award

83Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit. As I have concluded that the applicant is not entitled to the disputed treatment plan, it follows that no benefits were unreasonably withheld or delayed. Accordingly, the respondent is not liable to pay an award.

ORDER

84For the reasons outlined above, I find that:

1. The applicant is not catastrophically impaired under Criterion 6, 7, or 8

2. The applicant is not entitled to the disputed treatment plan.

3. The applicant is not entitled to interest.

4. The respondent is not liable to pay an award.

85The application is dismissed.