Licence Appeal Tribunal File Number: 23-014973/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:
Zayed Al Bechwat
Applicant
and
The Dominion General Insurance Company
Respondent
DECISION
ADJUDICATOR:
John Mazzilli
APPEARANCES:
For the Applicant:
Malcolm H Zoraik, Counsel
For the Respondent:
James Armstrong, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Zayed Al Bechwat, (the “applicant”), was involved in an automobile accident on November 18, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by The Dominion General 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:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to an income replacement benefit of $400.00 per week from November 25, 2017, and ongoing?
iii. Is the applicant entitled to an attendant care benefit of $7,338.73 per month from September 5, 2023, and ongoing?
iv. Is the applicant entitled to $3,118.80 for catastrophic impairment assessments (“CAT”) proposed by Humber River Medical Diagnostics in an OCF-18/treatment plan (“plan”) submitted January 4, 2023?
v. Is the applicant entitled to occupational therapy services proposed by Brain Injury Rehabilitation as follows:
$7,974.64 in a plan submitted November 3, 2023?
$7,418.86 in a plan submitted October 10, 2023?
$999.17 in an OCF-21 submitted March 8, 2024?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not catastrophically impaired under Criterion 7 & 8.
4The applicant is not entitled to an IRB in the amount of $400.00 from November 25, 2017, and ongoing.
5The applicant is not entitled to occupational therapy services.
6The applicant is not entitled to attendant care benefits.
7The applicant is not entitled to catastrophic impairment assessments.
8The applicant is not entitled to interest or an award.
PROCEDURAL ISSUES
The Respondent’s notice of motion requesting a sur-reply and the applicant’s request to exclude surveillance evidence
9This motion arises from the applicant’s submission to exclude the surveillance and social media evidence produced by the respondent. Therefore, I will discuss my ruling on the exclusion of the surveillance evidence together with the respondent’s request for a sur-reply.
10The respondent’s request for a sur-reply is denied. The applicant’s submission to exclude the surveillance and social media reports is also denied.
11In his reply to submissions the applicant sought to disallow the respondent’s social media and surveillance reports as evidence because he alleges that these reports were not disclosed to the applicant at the time of the case conference held on April 30, 2024.
12The applicant submits at the time of the case conference the respondent had already obtained surveillance evidence, however failed to disclose this evidence at the case conference. He argues that allowing the reports as evidence will be contrary to the principles of natural justice and procedural fairness because he is unable to cross examine the authors of the videos and reports.
13The applicant submits that I should not allow the surveillance and social media reports into evidence, in the alternative that I assign no evidentiary weight to these unreliable documents.
14In response the respondent filed a notice of motion requesting permission from the Tribunal to submit a sur-reply.
15The respondent argues that the applicant specifically requested production of surveillance it intended to rely upon at the hearing at the case conference and that the applicant was aware of the possibility that the respondent would present surveillance evidence. It further argued that the surveillance and social media reports were served to the applicant in accordance with the Case Conference Report and Order dated May 1, 2024.
16I find that the respondent can rely on the surveillance and social media reports because the applicant’s assertion that the surveillance and social media reports ought to have been disclosed at the case conference is unfounded. In this case the Case Conference Report and Order issued on May 1, 2024, provided the parties with 205 days after the case conference for final document exchange deadlines, and it is not disputed that the respondent complied with this Order.
17I further find that the respondent’s request to grant a sur-reply is denied because a dispute over admittance of surveillance and social media reports disclosed to the applicant in accordance with the Case Conference Report and Order is not an exceptional circumstance that warrants a sur-reply and because the remedy is most efficiently dealt with by way of a notice of motion.
18For the reasons above I find that the respondent can rely on the surveillance and social media reports. I further find that the respondent’s request for a sur-reply is denied.
ANALYSIS
Causation
19The applicant submits that as a result of the subject accident he has suffered serious and permanent physical and psychological injuries that have culminated in catastrophic impairment. He submits that pre-accident in 2011, he was struck in the head and had a loss of consciousness for a few seconds and that his symptoms resolved without any residual deficits. In 2015, while living in Lebanon, he was involved in an accident as a pedestrian when he was struck by a motor vehicle. He experienced loss of consciousness and was hospitalized for 45 days, however he did not suffer a brain injury. In 2016, the applicant underwent aorta surgery and right arm surgery in Ontario as he was unable to obtain these medical services in Lebanon.
20The applicant submits that while he did have pre-accident trauma and health concerns, he was nonetheless in such good health that he was employed full time at a physically demanding factory job at the time of the accident in 2017. He submits that any pre-existing physical pain was not sufficient to impair him but should be considered as a factor for his inability to achieve maximum medical recovery.
21The applicant submits that he did not immediately rush for treatment after the 2017 accident because he was resilient and hopeful that he would feel better.
22The respondent argues the applicant has an extensive pre-accident history as he was struck as a pedestrian by a motor vehicle in December 2015 in Lebanon resulting in degloving of the left foot, displaced fractures of the right radius and ulna, and aortic dissection. It further argues that the applicant had been kidnapped and tortured in Syria for 3 months and that the combination of this and the 2015 accident caused the applicant to suffer from post traumatic stress disorder (“PTSD”) with complaints of hypervigilance, sleep disturbance and anxiety.
23It argues that the applicant moved to Canada in early 2016 and underwent two surgeries that year: one to repair the right ulna and radius, and a vascular repair/stent of a thoracic pseudoaneurysm. It argues that the respondent denied any injury from the subject accident at the time of the property damage claim and that his first accident-related medical complaint was on April 17, 2018, approximately five months post MVA. The respondent argues that the applicant returned to his pre-accident employment following the motor vehicle accident and went on a planned paternity leave and did not return to his pre-accident employment following paternity leave, but rather worked as an Uber Driver.
24It is well established that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121(Sabadash). To satisfy this test, the applicant must demonstrate on a balance of probabilities that “but for” the 2015 accident, he would not have suffered the impairments forming the basis for his catastrophic-impairment (“CAT”) claim. The Court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, the Court states that the accident need not be the only cause of the impairment, but it must be a necessary cause. The Court further instructs the decision maker to conduct a robust analysis given the unique circumstances of the case at hand.
The applicant does not suffer from a whole person impairment (“WPI”) Under Criterion 7
25I find that the applicant has not demonstrated, on a balance of probabilities, that he has sustained a combination of physical and psychological impairments as a result of the injuries sustained in the accident that results in a whole person impairment (“WPI”) of 55% or greater.
26To meet the threshold of catastrophic impairment under Criterion 7, the applicant must prove that he has a combination of physical and psychological impairment ratings assigned by 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, 6th Edition, 2008 (“Guides, 6th Edition”) and is combined with the physical WPI rating from the Guides, 4th Edition using the Combined Values Table. An impairment percentage derived by means of the Guides, 4th 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.
27The applicant submits that as a result of the accident the combination of his physical and mental/behavioral impairments render him to have suffered a 61% WPI. The applicant relies on the following reports: neurology/pain medicine report of Dr. Pathak, physician, dated August 8, 2023, and the addendum report of Dr. Pathak dated June 1, 2024; as well as the pain medicine report of Dr. Ta, anesthesiologist, dated June 30, 2023, and the rebuttal report dated June 2, 2024; the psychiatric report of Dr. Abrams, psychiatrist, dated June 6, 2023, the rebuttal report dated June 1, 2024, and the executive summary report of Dr. Ta dated June 2, 2024. These reports outline the WPI% assigned by the applicant’s assessors which are detailed in the chart below.
28The respondent argues that the applicant is not catastrophically impaired under Criterion 7 because the combination of the applicant’s physical and mental /behavioural impairments amount to a 22% WPI. The respondent relies on the report of Dr. Waseem, physiatrist, dated March 21, 2024, the report of Dr. Sivasubramanian, psychiatrist, dated March 21, 2024, and the report of Dr. Moddel, neurologist, dated March 21, 2024, which found that the applicant does not suffer from a WPI% that renders him catastrophically impaired in accordance with Criterion 7.
29Both the applicant and the respondent agree that the applicant suffers from a permanent impairment of 5% WPI of his cervical spine, 5% WPI of his lumbosacral spine and a 3% WPI for medications. The parties disagree on the remainder of the applicant’s physical impairments and mental/behavioral impairments as outlined in the chart below:
30Dr. Pathak, the applicant’s neurological assessor, signed the acknowledgement of Expert Duty form on June 22, 2023, as an expert in neurology. However, at this time and at the time of the applicant’s assessment The Royal Collage of Physicians and Surgeons of Canada website lists Dr. Pathak as being certified to practice independently in the area of pain medicine not in neurology. As such I placed less weight on Dr. Pathak’s evidence in the area of disturbance of consciousness of awareness, sexual dysfunction, smell, cervicogenic and headaches.
| Impairment | Applicant’s WPI | Respondent’s WPI |
|---|---|---|
| Disturbance of Consciousness and Awareness | 15% (Dr. Pathak) | 0% (Dr. Moddel) |
| Sleep and Arousal Disorders | 9% (Dr. Ta) or 5% (Dr. Pathak) | 0% (Dr. Moddel) |
| Sexual Dysfunction | 5% (Dr. Pathak) | 0% (Dr. Moddel) |
| Smell | 5% (Dr. Pathak) | 0% (Dr. Moddel) |
| Cervicogenic Headaches | 10% (Dr. Pathak) | 0% (Dr. Moddel) |
| Migraine Headaches | 2% (Dr. Pathak) or 3% (Dr. Ta) | 0% (Dr. Moddel) |
| Tension Headache | 1% (Dr. Pathak) | 0% (Dr. Waseem) |
| Cervical Impairment | 5% (Dr. Pathak) | 5% (Dr. Waseem) |
| Lumbosacral Impairment | 5% (Dr. Pathak) | 5% (Dr. Waseem) |
| Upper extremity (right arm) | 4% (Dr. Ta) | 0% (Dr. Waseem) |
| Polypharmacy (medications) | 3% (Dr. Pathak and Dr. Ta) | 3% (Dr. Waseem) |
| Mental Behavioural | Dr. Abrams: GAF: 15% PIRS: 20% (middle score) BPRS: 30% |
Dr. Sivasubramanian: GAF: 5% PIRS: 10% (middle score) BPRS: 10% |
| Combined WPI | 61% | 22% |
31I placed more weight on the report of Dr. Moddel, who has been certified in the specialty of neurology by the Royal College of Physicians and Surgeons of Canada since 1976. Dr. Moddel concluded that the applicant does not have any current or unresolved neurological injuries related to the accident and that from a neurological point of view, the applicant’s prognosis is excellent.
32Dr. Moddel assigned a 0% WPI from a neurological perspective for sexual dysfunction, smell, and cervicogenic headaches. I accept Dr. Moddel’s ratings because in this case Dr. Moddel is the only certified neurologist by the Royal College of Physicians and Surgeons of Canada that can provide an impairment rating in accordance with the Guides that provided evidence to the Tribunal.
Disturbances of consciousness and awareness
33The applicant submits that as a result of the accident he has sustained a 15% WPI in the area of disturbances of consciousness and awareness. The applicant relies on Dr. Pathak’s rating in this area.
34Dr. Pathak relies on the applicant’s report that he experienced loss of consciousness for a few seconds because he hit his head on the headrest and that he felt dizzy afterwards but was able to drive the car back safely. Dr. Pathak diagnosed the applicant to have suffered post concussive syndrome.
35The other evidence before me does not support that the applicant suffered from a concussion as a result of the accident. The applicant did not seek any accident-related medical attention until approximately five months after the accident. The CNRs from the applicant’s family doctor show that his first accident-related complaint was in May of 2018.
36While Dr. Pathak assigns a 15% WPI for disturbances of consciousness and awareness which were included in the applicant’s executive summary, in his rebuttal report Dr. Pathak clarifies his position and opines that a psychiatric/neuropsychiatric evaluation and assessment is warranted for disturbances of consciousness and awareness. Therefore, I do not accept Dr. Pathak’s 15% WPI because in accordance with the Guides he is unable to provide a WPI rating based on his medical expertise in the area of disturbances of consciousness and awareness.
37Dr. Moddel did not provide a rating for disturbances of consciousness and awareness on the basis that, from a neurological perspective, there was no evidence that the applicant had a significant traumatic brain injury and that a neuropsychologist should assess the applicant to provide a WPI rating in the area of disturbances of consciousness and awareness.
38As both Dr. Pathak and Dr. Moddel defer their impairment rating in the area of consciousness and awareness to a psychiatrist or neuropsychologist, and no rating was provided by a psychiatrist or a neuropsychologist, accordingly I find on a balance of probabilities that the applicant does not suffer from a 15% WPI in the area of disturbances of consciousness and awareness and as such I assign a 0% WPI.
Combined values analysis under Criterion 7
39Although the parties disagree on other areas of WPI as outlined in the chart above, given my finding on disturbances of consciousness and awareness above, the applicant has not met his onus to prove that he is catastrophically impaired in accordance with Criterion 7 because his impairments are less than the 55% WPI required to be deemed catastrophically impaired under Criterion 7.
40The chart below reflects my findings based on the applicant’s reduced WPI% in the area of sexual disfunction, disturbance of consciousness and awareness, cervicogenic headaches and smell. If I accept the applicant’s WPI% ratings in the remaining areas the applicant still will not meet the threshold of 55% WPI based on the combined WPI conversion table in the Guides and therefore it is not necessary to undertake an analysis of the remaining areas of impairment.
| Areas of Impairment | WPI % Criterion 7 |
|---|---|
| Disturbance of consciousness and awareness | 0% |
| Sleep and arousal disorders | 9% |
| Sexual dysfunction | 0% |
| Smell | 0% |
| Cervicogenic headaches | 0% |
| Migraine headaches | 3% |
| Medication effects | 3% |
| Tension headaches | 1% |
| Cervical impairment | 5% |
| Lumbosacral impairment | 5% |
| Upper extremity (right arm) | 4% |
| Mental Behavioral | 20% |
| Under Criterion 7 | 41% |
41Accordingly, I find on a balance of probabilities that the applicant is not catastrophically impaired as a result of the accident and even if I accept that the subject accident is a necessary cause of his physical and psychological impairments in accordance with the AMA Guides under Criterion 7, the applicant has not met his onus of a 55% WPI or greater.
Criterion 8 mental and behavioral
42I find on a balance of probabilities that the applicant is not catastrophically impaired as a result of the accident in accordance with Criterion 8.
43To determine whether an insured person is catastrophically impaired under Criterion 8, the Tribunal considers whether the accident caused a mental or behavioral disorder, the impact of the disorder to the person’s life, and the level of impairment, as described in section 3.1(1)8 of the Schedule. The applicant bears the onus to prove on a balance of probabilities that he is catastrophically impaired. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test, not a medical test: see Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571.
44Criterion 8 requires evidence of the insured person’s impairment levels due to a mental or behavioural disorder. Impairment levels are to be assessed in relation to four functional domains: (1) Activities of Daily Living (ADL); (2) Social Functioning (SF); (3) Concentration, Persistence and Pace (CPP); and (4) Adaptation (deterioration or decomposition in work or work like settings) (AD). To meet the Schedule’s threshold for a catastrophic impairment designation under Criterion 8, an individual must have three marked (class 4) impairments out of the four spheres of functioning or one extreme (class 5) impairment as a result of the accident due to a mental and behavioural disorder. These impairments are assessed under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (“Guides”). Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The spheres of functioning and the levels of impairment are outlined in the chart below:
| Area or Aspect of Functioning | Class 1: No Impairment |
Class 2: Mild Impairment |
Class 3: Moderate Impairment |
Class 4: Marked Impairment |
Class 5: Extreme Impairment |
|---|---|---|---|---|---|
| Activities of Daily Living | No impairment is noted | Impairment levels are compatible with most useful functioning | Impairment levels are compatible with some, but not all useful functioning | Impairment levels significantly impede useful functioning | Impairment levels preclude useful functioning |
| Social Functioning | |||||
| Concentration, Persistence and Pace | |||||
| Adaptation (Deterioration in a work-like setting) |
45The applicant submits that he has class 3 marked impairments in the domains of activities of daily living, concentration, persistence, pace, and adaptation, and a moderate impairment in social function caused by mental disorders that he sustained in the motor vehicle accident. The applicant relies on the report of Dr. Abrams, psychiatrist, dated June 6, 2023, Dr. Abrams’ rebuttal report dated June 1, 2024, the situational assessment report of Laura Burnett, occupational therapist, dated May 3, 2023, and the executive summary report of Dr. Ta dated June 2, 2024.
46The respondent argues that the applicant does not suffer any marked impairments in the domains of function. The respondent argues that the applicant has a class 2 mild impairment in his ADLs, SF, CPP and a class 1 no impairment in the AD domain. The respondent relies on the report of Dr. Sivasubramanian dated March 21, 2024, and the In-home and situational assessment reports of Vinita Tandon, occupational therapist, dated January 11, 2024.
47In her report, Dr. Abrams diagnosed the applicant with three marked impairments, however Dr. Abrams, and the applicant’s submissions and Dr. Ta in the executive summary report, consistently refer to the use of the 6th edition, (2008) chapter 14, of the AMA Guides in assigning the applicant’s level of impairment.
48While the 6th edition of the Guides is considered under the Schedule in determining in part the applicant’s impairment under Criterion 7, which I note Dr. Abrams correctly applied, under Criterion 8, the Schedule considers mental/behavioral impairments in accordance with the 4th edition of the Guides.
49I placed less weight on the catastrophic impairment report of Dr. Abrams because on a balance of probabilities I find that the applicant’s impairment ratings assigned by Dr. Abrams were determined under the 6th edition (2008) and not under the Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993.
50In addition, I preferred the report of Dr. Sivasubramanian and placed more weight on his report for the following reasons.
51Dr. Sivasubramanian assessed the applicant in person for one hour and 45 minutes, whereas Dr. Abrams assessed the applicant via video which do not provide the assessor in part with the clinal observations that Dr. Sivasubramanian observed in person such as that the applicant was well groomed and casually attired, he ambulated somewhat slowly, with a slight limp favouring his left leg, that he did not appear in any significant physical distress but kept his left leg outstretched, and that he did not display any significant anxiety when describing his index accident.
52Finally, I preferred the report of Dr. Sivasubramanian over that of Dr. Abrams because Dr. Sivasubramanian’s report proved to be more substantive because he relied on the occupational therapy reports of both an in-home assessment and a situational assessment, which provide an insight of how the applicant is able to function at home and in the community that align with the contemporaneous evidence whereas Dr. Abrams was only reliant upon a situational assessment.
53The parties agree that the applicant does not suffer from a marked impairment in the domain of social function, therefore I accept that the applicant does not suffer from a class 4 or 5 impairment in his social function as a result of the accident.
Adaptation
54I find that the applicant does not suffer from a marked impairment in the domain of adaptation as a result of the accident.
55The Guides specify that adaptation (deterioration or decompensation in work or work like settings) refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances, the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder, that is, decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers.
56The applicant submits that he has suffered a class 4 marked impairment in the domain of Adaptation. In her report Dr. Abrams opines that because of the applicant’s reported pain, reduced stamina, distractibility, poor focus, and problems with irritability, he is likely unable to meet the prolonged and complex activity demands of his pre-accident employment as a machine operator, a job he previously enjoyed for almost one year without limitations.
57Dr. Abrams opines that the applicant’s physical and cognitive demands of such work would likely exacerbate his chronic pain disorder and other psychological conditions. He is preoccupied by his physical symptoms and avoidant of any activity that he perceives will aggregate his pain or exacerbate his vascular problems. He is also unable to maintain employment as an Uber driver due to limitations in sitting and anxiety associated with car travel. When he attempted to engage in some light construction work with a friend in December 2020, he developed a thrombus in his leg resulting in a three-day hospitalization for heparin infusions, exacerbating his activity-related anxiety.
58The respondent argues that the applicant does not suffer from an accident-related impairment in the domain of adaptation. In his report Dr. Sivasubramanian notes that the applicant did return to his work primarily as an Uber driver following his accident and that he briefly returned to work as a machine operator after the subject accident and attempted to work a few weeks in construction but then developed lower leg pain. Dr. Sivasubramanian opines that the applicant seems to suggest that it is his physical pain that primarily would impede him from returning to work at present. He remains relatively independent with his personal care, he drives independently, maintains control of his medications and finances, he has travelled nationally and internationally, and he maintains good relationships with a number of friends and family.
59I find that the applicant does not suffer from an accident-related class 4 or 5 marked impairment solely attributable to his accident related mental and behavioral impairments because the contemporaneous evidence shows that the applicant’s impairment levels are compatible with most useful functioning.
60While being alive to the applicant’s unrelated physical impairment’s, namely his left leg, Dr. Abrams does not go to any length in explaining how this impairment is related to the subject accident. Dr. Nasser, vascular surgeon, in his report dated May 7, 2019, concluded that the November 2017 accident did not cause the applicant’s left leg pain as it was caused by the occlusion of his left popliteal artery, which in turn is related to the graft in the thoracic aorta and not the accident, thereby providing the basis for the applicant’s inability to work.
61In addition, the evidence shows that the applicant’s pre and post accident level of function does not substantially differ. Post accident the applicant continues to drive independently, travel nationally and internationally. I assigned full weight to the social media report because on a balance of probabilities the social media posts come from the applicant’s own publicly accessible social media accounts which shows that the applicant traveled to Cuba with friends in 2023, and in 2024 travelled to the Dominican Republic and Alberta, all post-accident. In addition, the social media report shows that the applicant was at Wasaga Beach, Big Island Beach in Nova Scotia and Guelph Lake which indicates that the applicant’s travel is not restricted and not indicative of a class 4 marked impairment in the domain of adaptation because the applicant’s impairment levels are compatible with most useful functioning.
62While I place full weight to the social media report it is important to note that I placed no weight to the respondent’s surveillance evidence and it did not factor into my decision.
63While the applicant argues that the evidence does not support the applicant having independently traveled abroad the report of Dr. Sivasubramanian notes the applicant’s self report, specifically that he traveled to Jordan independently to visit his mother and remained in Jordan for one month. This is not indicative of a class 4 marked impairment because the applicant’s Impairment levels are compatible with most useful functioning.
64The occupational therapy report of Vinita Tandon further supports Dr. Sivasubramanian’s impairment rating as Ms. Tandon’s report shows that the applicant participated in the in-home portion of the examination for approximately three hours and no significant deterioration in his presentation was observed. He proceeded to the Situational Assessment after the in-home examination portion. During the Situational Assessment the applicant attended the examination unaccompanied and arrived at the Walmart where the assessment was to be conducted on his own.
65Ms. Tandon noted that the applicant was punctual for the appointment and moved at a normal pace through the tasks. He walked independently with no aids. He attempted thirteen of the fourteen tasks on the list in approximately 35 minutes. All thirteen of the attempted thirteen tasks were completed correctly. Ms. Tandon opines that the applicant presented with adequate orientation skills, problem solving and adequate social skills during this outing. The applicant completed a lengthy in-home and situational assessment and did not withdraw from the situation, he did not decompensate, nor did he experience exacerbations of symptoms, which is indicative of Impairment levels that are compatible with most useful functioning.
66I find on a balance of probabilities that the applicant has not suffered a class 4 marked impairment in the domain of adaptation because the applicant is able to access the community on his own, he has shown that he is able to adapt to stressful situations such as international travel independently by airplane, he has continued social relationships with his friends and family, and that he is able to adapt in his activities of daily living as the evidence shows that he has further advanced family relationships as he and his wife have been blessed with a fifth child post accident.
67Having found that the applicant does not have a class 4 marked impairment in at least two of four domains, and that the applicant does not assert that he has a class 5 impairment, the applicant has not established that he is catastrophically impaired under Criterion 8.
Pre-104 IRB
68I find that the applicant is not entitled to a pre-104 IRB in the amount of $400.00 per week for the period of November 25, 2017, to November 24,2019.
69To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of his employment, which tasks he unable to perform and to what extent he is unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that he meets the test.
70The applicant submits that he has been unable to be gainfully employed after the accident and was forced to apply and obtain benefits from the Ontario Disability Support Program. The applicant submits that at the time of the accident he was employed as a machine operator which included duties such as loading and unloading parts and the inspection of parts, and that following the accident he was not able to return to his pre-accident employment due to back pain, leg pain, and frequent mood swings. In addition, the applicant submits that he began driving for Uber out of financial necessity, hoping that his accident-related injuries would not persist.
71The respondent argues that the applicant continued to work the full hours and duties of his pre accident employment following the accident until the applicant took a planned paternity leave in December 2017, one month after the accident. The respondent argues that the applicant was unable to return to his pre-accident employment following paternity leave in 2018 due to his left leg vascular complaints and subsequently the applicant began driving Uber for many years.
72The respondent further agues that only one disability certificate dated August 9, 2018, was provided which indicated the applicant’s duration of disability would last nine to twelve weeks. The respondent relies on the multidisciplinary assessments of Dr. Stacy, physiatrist, Dr. Souter, chiropractor, Dr Reis, psychologist and Dr. Nasser, vascular surgeon which determined that he does suffer a substantial inability to perform the essential tasks of his employment
73The applicant’s medical evidence appears to be the OCF-3 dated August 9, 2018, completed by Jayesh Mistry, chiropractor. The OCF-3 lists the expected period of disability to be 9 to 12 weeks and refers to the extended injuries list attached to the document. However, this list was not provided to the Tribunal.
74In this case, I accept that at the time of the accident the applicant was employed as a machine operator which included duties such as loading and unloading parts and the inspection of parts. I find, however, that the applicant has not met his onus to demonstrate that he suffers a substantial inability to do the essential tasks of his pre-accident employment.
75I was not pointed to medical evidence that as a result of the accident, the applicant was unable to return to the essential tasks of his employment. I also note that the evidence indicates that he did return to those duties post-accident and subsequently took a planned paternity leave.
76I find that the applicant has not met his onus to prove entitlement to the IRB because I am unsure when the applicant stopped driving Uber altogether. The CNRs from the various assessors based on the applicant’s self report are not consistent. Some of the CNRs show he stopped driving as an Uber driver approximately one-year post-accident and some show that he continued to drive Uber until 3 to 4 years post accident. Complicating matters further, the applicant has only disclosed his notice of assessment from the Canada Revenue Agency and not his complete tax records, so it is not possible to know where his post-accident income is derived from.
77I find the multidisciplinary assessments undertaken by the respondent to be persuasive. In this regard, I note that Dr. Stacey in his report dated May 2, 2019, opines that from a musculoskeletal perspective the applicant’s accident-related neck and back pain does not render him to suffer a substantial inability to perform the essential tasks of his pre-accident employment. Dr. Stacey defers his medical opinion related to the applicant’s popliteal artery non-occlusive clot as it is not in his scope of practice. Dr. Nasser, vascular surgeon, in his report dated May 7, 2019, concluded that the November 2017 accident did not cause the applicant’s left leg pain as it was caused by the occlusion of his left popliteal artery, which in turn is related to the graft in the thoracic aorta and not the accident.
78I find on a balance of probabilities that the applicant is not entitled to a pre-104 IRB in the amount of $400.00 per week from November 25, 2017, to November 24, 2019, because he did not meet his onus to prove entitlement to the IRB.
Post-104 IRB
79I also find that the applicant is not entitled to a post-104 IRB in the amount of $400.00 per week from November 25, 2019, and ongoing.
80To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.
81The applicant did not make any submissions to support his claim to a post-104 IRB, therefore the applicant has failed in his onus to prove entitlement to the IRB.
82Accordingly, I find on a balance of probabilities that the applicant is not entitled to an IRB from November 25, 2019, and ongoing.
Attendant Care Benefits
83I find that the applicant is not entitled to an attendant care benefit of $7,338.73 per month from September 5, 2023, and ongoing.
84Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
85The applicant submits that a completed Form 1 was submitted to the respondent on September 5, 2023, however the respondent refused to approve the claim without any medical or legal reasons. He submits that the Schedule requires the respondent to begin the payment of attendant care within 10 days after receiving the assessment of attendant care needs. He further submits that he is entitled to this benefit under his insurance policy because his policy included optional benefits.
86The respondent argues that the applicant’s medical, rehabilitation and attendant care benefits are not payable in accordance with the Schedule beyond 260 weeks after the accident and that on September 8, 2022, by way of letter it explained to the applicant that he will soon have reached the end of the 260-week mark for which medical, rehabilitation and attendant care benefits will expire.
87While the applicant submits that optional benefits were purchased by the applicant, I am not pointed to evidence that the applicant’s optional benefits extend beyond 260 weeks, nor am I pointed to evidence that the applicant incurred any of the attendant care services. While the 260-week mark can be extended for attendant care if the applicant is deemed CAT under the Schedule, my finding of him as not being impaired at CAT levels follows that the 260-week mark applies in accordance with s.20 of the Schedule.
88I find on a balance of probabilities that the applicant is not entitled to an attendant care benefit of $7,338.73 per month from September 5, 2023, and ongoing.
The disputed treatment plans
89To 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.
90According to s. 20 of the Schedule, medical, rehabilitation and attendant care benefits are not payable for expenses beyond 260 weeks or 5 years, unless the person is under the age of eighteen, has catastrophic injuries or has purchased optional benefits.
Catastrophic impairment assessment
91I find that the applicant is not entitled to $3,118.80 for a catastrophic impairment assessment.
92The applicant submits that the disputed treatment plan was necessary and essential for the applicant to be deemed catastrophic. He argues that the respondent does not have legal grounds to deny this benefit regardless of what level of impairments the respondent believes the applicant sustained as a result of the accident.
93The respondent argues that it denied the disputed treatment plan on January 18, 2023, by way of letter relating to a denial for a catastrophic impairment screening assessment in the amount of $3,118 and it advised the applicant to submit an OCF-18 for catastrophic assessments, rather than simply a screening, which it argues was subsequently submitted and approved on February 3, 2023.
94I find that the respondent’s denial of the assessment to be appropriate as at the time the disputed OCF-18 was submitted the applicant had yet to complete an OCF-19, namely an application for catastrophic determination. I find that the respondent advised the applicant appropriately and subsequently the respondent approved the applicant’s catastrophic impairment assessments, therefore the disputed OCF-18 is a duplicate of services rendered.
95I find on a balance of probabilities that the applicant is not entitled to the treatment plan in the amount of $3,118.80 for catastrophic impairment assessments.
Occupational therapy disputed treatment plans
96I find that pursuant to s. 20 of the Schedule, the applicant is not entitled to the disputed treatment plans for occupational therapy because the disputed plans were all submitted after the 260-week mark and because I was not pointed to evidence that the applicant’s optional benefits extend beyond the 260-week mark.
Interest
97Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As not benefits are owing interest is not owing.
Award
98The applicant sought an award under s. 10 of Reg. 664. Under s. 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.
99Having found that the respondent acted appropriately in its denial of the applicants claims to the disputed benefits, I find that the respondent did not unreasonably withhold or delay any benefits from the applicant and accordingly the applicant’s request for an award is denied.
ORDER
100It is ordered that:
i. The applicant is not catastrophically impaired under Criterion 7 or 8.
ii. The applicant is not entitled to an IRB in the amount of $400.00 per week from November 25, 2017, to November 24, 2019.
iii. The applicant is not entitled to an IRB in the amount of $400.00 per week from November 25, 2019, and ongoing.
iv. The applicant is not entitled to attendant care benefits.
v. The applicant is not entitled to catastrophic impairment assessments in the amount of $3,118.80.
vi. The applicant is not entitled to the disputed plans for occupational therapy.
vii. The applicant is not entitled to interest or an award.
viii. The application is dismissed.
Released: December 2, 2025
__________________________
John Mazzilli
Adjudicator