Pozhenska v. Wawanesa Insurance, 2025 CanLII 1820

Citation: Pozhenska v. Wawanesa Insurance, 2025 ONLAT 23-007780/AABS

Licence Appeal Tribunal File Number: 23-007780/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:

Kateryna Pozhenska

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Timothy Porter

APPEARANCES:

For the Applicant:

Ilya Kirtsman, Counsel

Nicole Taylor, Counsel

For the Respondent:

Ken Yip, Counsel

Interpreter:

Vladimir Dubrovsky - (Russian language) September 4, 2024

Court Reporter:

Alyssa Scott

Heard by Videoconference:

September 3-11, 2024

OVERVIEW

1Kateryn Pozhenska, the applicant, was involved in an automobile accident, as a pedestrian, on May 21, 2021, 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 respondent, Wawanesa Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The preliminary issue raised by the respondent was withdrawn.

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 $14,690.74 per month from July 26, 2021, to date and ongoing?

iii. Is the applicant entitled to $5,296.64 for chiropractic services, proposed by Polyclinic Rehabilitation Institute in a treatment plan/OCF-18 (“plan”) submitted on August 19, 2021?

iv. Is the applicant entitled to $900.00 for transportation, proposed by Polyclinic in a plan submitted on September 7, 2021?

v. Is the applicant entitled to $646.47 for assistive devices, proposed by FunctionAbility in a plan submitted on February 14, 2021?

vi. Is the applicant entitled to $1,771.23 for an in-home assessment, proposed by FunctionAbility in a plan submitted on June 30, 2021?

vii. Is the applicant entitled to $200.00 ($2,400.00 less $2,200.00 approved), proposed by Baskakova Psychology in a psychological assessment plan submitted on October 26, 2021?

viii. Is the applicant entitled to $2,200.00 for a housing assessment, proposed by FunctionAbility in a plan submitted on November 1, 2021?

ix. Is the applicant entitled to $1,634,100.00 for housing modifications proposed by FunctionAbility in a plan submitted on September 15, 2022, and denied on September 26, 2022?

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

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

RESULT

4For the reasons that follow I find:

i. The applicant has not sustained a catastrophic impairment as a result of the accident.

ii. The applicant is not entitled to the attendant care benefits in dispute.

iii. The applicant is not entitled to the treatment and assessment plans in dispute.

iv. The applicant is not entitled to the proposed housing modifications.

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

vi. As there are no overdue benefits payments, the applicant is not entitled to interest.

PROCEDURAL ISSUES

Motion to allow addendum report into evidence

5In the case conference report and order (“CCRO”) on consent, the respondent was provided the opportunity to call s. 44 assessors to testify about the s. 25 reports at the hearing. On August 19, 2024, the respondent filed a motion requesting permission to rely on the insurer’s examination CAT addendums of Dr. Anil Joseph, psychiatrist, and Mr. R. Kassam, occupational therapist (“OT”) dated August 16, 2024. The motion was scheduled to be heard at the beginning of the hearing.

6The respondent submits that receipt of the addendum reports prior to the hearing was not a certainty and thus the agreement in the CCRO. Unexpectedly, the reports were received prior to the hearing and were acknowledged to be served outside of the timelines agreed in the CCRO. The respondent further submits that a motion was brought as soon as the reports were received, that delays in receipt were caused by the applicant’s lack of attendance at scheduled insurer’s examinations, and that the applicant’s CAT reports were delivered in June along with 5000 pages of records. The respondent continued by acknowledging the agreement in the CCRO and submitted that with the reports in hand it is better to admit them than to rely solely on viva voce evidence and requested that the addendum report by Dr. Anil Joseph be admitted into evidence.

7The applicant opposed admission of the addendum report, submitting that nothing has changed; there is no reason to admit the reports; and that the parties agreed to a path to call the witness and receive the evidence that still exists. In answer to the respondent’s submission that the CAT reports and 5000 pages of records were exchanged in June, the applicant submitted that the suggestion that this was late is incorrect. The applicant submitted that all exchanges of documents have been completed as agreed in the CCRO.

8I admitted the addendum report into evidence. I find that according to rule 9.2a of the Common Rules of Practice and Procedure the reports were exchanged more than 10 days prior to the hearing; and as per rule 9.3e I find that the addendum report is relevant to the proceedings.

Summons of a witness

9On August 1, 2024, a summons for Michelle Berlin, Wawanesa adjuster, was properly issued by the Tribunal. On August 19, 2024, applicant’s counsel attempted to serve the summons on respondent’s counsel via email.

10The applicant submits that the need to cross examine two Wawanesa adjusters was identified in the CCRO; that the summons for one of them was sought and received; that the summons was served on respondent’s counsel as representative of Ms. Berlin. The applicant further submits that he has heard nothing from Ms. Berlin, and should she not appear to give evidence, that an adverse inference should be drawn.

11The respondent submits that he is not counsel for Ms. Berlin and does not act for individuals; that the respondent has shared log notes; that the applicant has not identified any particulars for the award being sought; and that there is no basis for the adjuster to testify.

12The applicant replied that the summons had been served on the counsel for the respondent and it should be deemed to have been served; that the basis for the award being sought were provided June 27, 2023, and that as per rule 8 of the Licence Appeal Tribunal Rules, 2023 the summons had been issued properly and on time.

13I find that the summons was properly issued, however, the SPPA states that a summons must be served personally. I find that the summons was not properly served on Ms. Berlin. As log notes are in hand, arguments regarding the award can be made with that evidence. No inference has been drawn regarding the whereabouts of Ms. Berlin.

Witness lists and timing not finalized

14At the beginning of the hearing there was one witness and one witness scheduling issue raised.

i. The applicant sought to call the applicant’s father Alex Pozhenska, submitting that the father’s testimony would be helpful to the Tribunal in that he is aware of the applicant’s medical history and is submitted as a witness in replacement of a family doctor.

ii. The respondent objected to the applicant’s father being called, submitting that this is the first they have heard of this witness; and that the evidence would be unduly repetitious to the mother’s testimony and that it is the brother who has a power of attorney for property.

15I find, as per rule 9.2 that notice of the intent to have the father testify is late filed and in consideration of rule 3.1(a) and (b), I find that the father’s testimony would be unduly repetitious and would not support hearing efficiency. Therefore, I do not grant permission for the father to testify.

16The respondent objected to the applicant’s witness timing and in particular the intention to call Ms. Chalova, OT, as the last witness in the hearing.

iii. The respondent submits that hearing time had been divided equally such that each party could freely arrange their witnesses, evenly splitting the eight days available with four days each. The respondent further submitted that they had been generous and allowed the applicant’s witnesses to be slotted into the morning of day 5, conceding some of their apportioned time to the applicant. Finally, respondent’s counsel submitted that their client had a right to know the full case against them prior to proceeding with their defence which would not be possible if Ms. Chalova were called as the final witness in the hearing. The respondent concluded by submitting that the Superior Court does not allow a witness to be called out of order like this.

iv. The applicant submitted that the long-weekend holiday had created some challenges in scheduling witnesses. The applicant further submits that Ms. Chalova is an extremely important witness who accompanied the applicant to many of the s. 44 insurer’s examinations and due to commitments was only available on the last two days of the hearing. The applicant concluded by submitting that while the Superior Court does not allow this, the Tribunal is a less formal setting, and such a thing can be allowed as there is nothing prejudicial about a witness being called out of order.

v. I find that the timing of witnesses has not followed the agreed division of time between the parties. While this Tribunal is less formal than Divisional Court, and such ‘out-of-order’ testimony is not against the rules of this Tribunal, the combination of the previous agreement not being honoured, and the respondent’s objection led me to conclude that the applicant must call all of their witnesses prior to resting their case and that the applicant must rest their case no later than noon on the fifth day of the hearing.

Right of reply in closing submissions denied

17Following the respondent’s closing submission, the applicant requested a right of reply, which had not been discussed prior to the closing submissions; per the CCRO, both parties were given 30 minutes for closing submissions. The applicant requested a right of reply to address some statements by the respondent. The respondent objected to this as it had not been discussed previously and was not part of the original CCRO.

18I find that there were no new arguments advanced by the respondent in their closing, and as the issue had not previously been discussed and the fact that the respondent objected to a reply submission; I denied the applicant’s request to provide a reply to the respondent’s closing statement to ensure procedural fairness, and the hearing concluded.

ANALYSIS

18The applicant has a complex and extensive history with the healthcare system and prior to the accident was diagnosed by multiple treating medical professionals with bipolar disorder, schizophrenia and as having several behavioural issues including impulsivity, aggression, oppositional defiance disorder and a developmental delay. There are several years of noted alcohol and substance abuse issues in hospital records. The applicant is currently homeless.

19In addition to developmental and psychological diagnosis’ it is agreed that the applicant had serious functional impairments prior to the subject accident. The applicant has received three separate diagnosis of a traumatic brain injury (“TBI”) following falls from a bike, a second-floor balcony, and in 2007 the applicant was involved in a motor vehicle accident as a pedestrian, in a similar fashion to the current accident.

20The applicant’s brother is her guardian for property with a Form C having been filed with the Office of the Public Guardian and Trustee on July 25, 2008. The applicant’s mother has identified herself as the litigation guardian for this action. While multiple healthcare professionals have over many years advocated strongly that a guardian for care be appointed, no guardian for care has been identified.

The applicant is not catastrophically impaired as a result of the accident

21I find that the applicant has not, on a balance of probabilities, demonstrated that she sustained a catastrophic impairment as a result of the subject accident.

22Catastrophic impairment is a legal definition and not a medical test, although the legal test involves consideration of medical evidence. The applicant is proceeding under s. 3(1)(8) of the Schedule and in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th edition, 1993 (the “Guides”). This section of the Schedule explores mental and behavioural impairments that are rated according to how seriously they affect a person’s useful daily functioning, physical impairments have no bearing within these ratings. Chapter 14 of the Guides set out the four spheres of functioning and the classification of impairments as represented 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 ("Social")
Concentration, Persistence and Pace ("CPP")
Adaptation (In a work-like setting) ("Adaptation")

23The applicant has the burden of proving, on a balance of probabilities, that she is catastrophically impaired, under criterion 8, as a result of the accident. Given that the accident occurred on May 21, 2021, a catastrophic impairment under criterion 8 requires at least three of the four spheres of functioning to be a Class 4 marked impairment or one sphere to be a Class 5 extreme impairment.

24The applicant submits that she has suffered marked impairments in spheres of Activities of Daily Living, Social Functioning and Adaptation, as a direct result of the subject accident. The applicant relies on the testimony of her mother, assessments from Dr. Nina Belyakova, psychologist, Ms. Deena Rogozinsky, OT, and Ms. K. Chalova, OT in support of this position.

25The respondent submits that the applicant has a significant, pre-existing medical and psychiatric history and has suffered multiple traumatic brain injuries unrelated to this accident. The respondent challenges the findings of all s. 25 assessors and submits that the applicant is not catastrophically impaired as a result of the subject accident, relying on the reports of Dr. A. Joseph, psychiatrist, Mr. R. Kassam, OT, Dr. G. Model, neurologist, and Dr. A. Oshidari, physiatrist.

26The applicant underwent a multi-disciplinary, catastrophic determination assessment by her own assessors. A report was issued by Dr. Irina Kay, with a psychological assessment by Dr. Belyakova on May 29, 2024, and a functional assessment by Deena Rogozinsky, OT on April 30, 2024. The assessment by Dr. Belyakova provided the following ratings of the applicant in the four spheres of function:

Area or Aspect of Functioning	Class 3: MODERATE Impairment	Class 4: MARKED Impairment
Activities of Daily Living		Class 4 marked
Social Functioning		Class 4 marked
Concentration, Persistence and Pace	Class 3 moderate
Adaptation (In a work-like setting)		Class 4 marked

27The applicant also underwent a multi-disciplinary catastrophic impairment assessment by the respondent’s assessors. A report was issued as a result of these assessments by Dr. Todd Levy, general practitioner, Dr. Anil Joseph, Psychiatrist, Rasul Kassam, OT, Dr. Albor Oshidari, Physiatry, and Dr. Garry Moddel, Neurologist, on March 5, 2024. The assessment by Dr. Joseph provided the following ratings of the applicant in the four spheres of function:

Area or Aspect of Functioning	Class 2: MILD Impairment	Class 3: MODERATE Impairment
Activities of Daily Living	Class 2 mild
Social Functioning	Class 2 mild
Concentration, Persistence and Pace	Class 2 mild
Adaption (In a work-like setting)		Class 3 moderate

28The lack of pre-accident documentation review and the lack of acknowledgement in the ratings of pre-existing diagnosis’ causes me to place diminished weight on the report of Dr. Belyakova. I note that the applicant’s psychological assessment by Dr. Belyakova does not in any way account for the applicant’s pre-existing functional deficits, which is contrary to the Guides general rating principle 5 which states “Preexisting impairment is to be estimated and subtracted from the final impairment score”. Further, the documentation review section reveals that Dr. Belyakova did not review any document dated prior to November 11, 2021, therefore, all documentation reviewed was post accident documentation. During testimony Dr. Belyakova acknowledged prior events that led to diagnosis of TBI’s, and diagnosis of bipolar, schizophrenia, organic inborn brain injury, impulsivity, behavioural issues, oppositional defiant disorder, developmental disability, alcohol and substance abuse but did not outline how knowledge of these prior events and diagnosis were accounted for in her report. In her report, Dr. Belyakova also accepts the applicant’s self-reports that she has not been hospitalized for psychiatric reasons (although the evidence clearly demonstrates multiple Form 1 apprehensions and periods of residence in the Neurologic Rehabilitation Institution of Ontario (“NRIO”) a 24/7 supervisory care facility), and that she does not drink alcohol (although the evidence clearly demonstrates over multiple years that the applicant has alcohol abuse issues documented in multiple North York General Hospital records).

Does the applicant have a marked impairment in the sphere of activities of daily living?

29The Guides specify that activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities 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 simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

30For the reasons that follow, I find that, on a balance of probabilities, the applicant does not suffer from a marked impairment of her activities of daily living, as a result of the subject accident.

31The applicant’s assessor concludes that the applicant has suffered a marked, Class 4 impairment to her activities of daily living as a direct result of the subject accident.

32The respondent’s assessor concludes that the applicant has suffered a mild, Class 2 impairment to her activities of daily living as a direct result of the subject accident; acknowledging that there may be an increase in the applicant’s mood instability due to multiple factors, some of which are accident-related.

33I am not persuaded by the evidence of Dr. Belyakova because she concluded that the applicant was able to reside independently prior to the subject accident and now is not able to, which is not supported by the evidence from the applicant’s mother and her treating psychiatrist. Dr. Belyakova also concluded the applicant was able to take care of herself and maintain a sufficient level of grooming prior to the accident and now is unable to do so, which is counter to the evidence from police and hospital records. For example, the applicant was apprehended on a Form 1 on February 1, 2019 (more than 2 years pre-accident) and again on May 1, 2019. On both occasions, North York General hospital records indicate that the police reported the living quarters of the applicant were in significant disarray with broken furniture and windows and visible feces and blood strewn about. In addition, a letter from Dr. Felix Yaroshevsky, the applicant’s care providing psychiatrist, from May 26, 2008, states specifically that the applicant requires 24-hour supervisory care, which follows the applicant’s 2007 pedestrian knock-down accident and separate traumatic brain injury from a bicycle accident.

34I find that the applicant’s assessment by Dr. Belyakova failed to consider important, pre-accident incidents. During cross examination, it became apparent that Dr. Belyakova did not have a robust understanding of the applicant’s pre-accident function. She was unaware that Dr. Yaroshevsky had been strongly recommending a structured environment with skilled supervision as early as 2009. She was also unaware of the applicant’s engagements with the criminal justice system, her apprehension on Form 1s or her aggression toward her mother as documented in 2017. In addition, while Dr. Belyakova was aware of some incidents, such as the applicant’s 2017 fall from the balcony and the applicant’s extensive history with addiction, this knowledge was derived from the applicant’s self-reports and those of the applicant’s mother. Dr. Belyakova did not review records related to these instances to corroborate or enhance her understanding of the applicant from independent or objective sources. Dr. Belyakova was also contradicted by the respondent’s OT assessor, Ms. Chalova, in her report of August 18, 2021, which highlights that the applicant’s living situation (with threats of eviction, unhygienic and damaged quarters) has been a long-standing situation. Ms. Chalova’s report highlighted that functional deficiencies around personal hygiene, grocery shopping and remembering to eat were reported by the applicant’s mother to the OT, immediately following the subject accident, as having existed for “some time”.

35I prefer the evidence of Dr. Joseph over the applicant’s psychiatric assessor because he has a robust understanding of the applicant’s pre-accident function drawn from his review of her functional capabilities and deficits. Dr. Joseph also corroborates his observations with the applicant’s self-reports and the objective testing of Mr. Kassam, OT, to reach a unified conclusion.

36I agree with the respondent’s assessor, Dr. Joseph, who reviews the applicant’s capabilities for bathing, self-grooming, dressing, feeding, and toileting concluding that the applicant is capable to undertake these activities, but is not able or willing to keep herself clean, which he notes was the case prior to the subject accident. Dr. Joseph also notes that the applicant is not capable of managing her finances or grocery shopping, which was the case prior to the subject accident.

37On a balance of probabilities, the applicant’s activities of daily living such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities have been mildly impaired, as a result of the subject accident, when considering the applicant’s pre-accident function. The evidence demonstrates that the applicant’s pre-accident activities of daily living functional deficits negatively impacted the independence, appropriateness, effectiveness, and sustainability of these activities. On a balance of probabilities, the applicant was not capable of initiating and participating in these activities independent of supervision or direction; I agree with the respondent’s assessors that the applicant has suffered a mild Class 2 impairment in this domain of function, as a direct result of the subject accident.

38The Guides specify an individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others such as family members, friends, neighbours, grocery clerks, lenders, etc. 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 and interact and actively participate in group activities, consideration for others, awareness of others’ sensitivities and social maturity.

39I find that the applicant, on a balance of probabilities, has not suffered a marked impairment of her social functioning as a result of the subject accident.

40The applicant’s assessor concludes that the applicant has suffered a marked, Class 4 impairment to her social functioning as a direct result of the subject accident.

41The respondent’s assessor concludes that the applicant has suffered a mild, Class 2 impairment to her social functioning as a direct result of the subject accident.

42I prefer the majority of evidence of the respondent’s assessors. Dr. Joseph who opines that the applicant has difficulty with her social functioning, highlighting a bad temper and the propensity to throw and break things such as her cellphone and corroborates these current findings with past North York General Hospital records, which indicate very similar problems prior to the subject accident.

43I am not persuaded by the applicant’s assessors. Dr. Belyakova reports that the applicant has lost most of her interest in other people or things now, finding no pleasure in activities she previously enjoyed, highlighting that the applicant is impaired by depressed mood, irritability and verbal and physical outbursts. As noted previously, the assessors’ lack of consideration of pre-accident reports causes me to diminish the weight of the multidisciplinary report. The evidence, provided by the applicant to assessors, the extensive rescheduling of s. 44 assessments and Ms. Chalova, OT, demonstrates that the applicant regularly reports prioritizing her boyfriend over assessment appointments post-accident. The reasons for the Form 1 apprehensions and observations by police attending the scene clearly outline socially isolating behaviour pre-accident, and NRIO reports highlight the applicant’s difficulty in adhering to social norms for interaction with peers. Finally, the findings of Dr. Belyakova are virtually identical to the report of Dr. Gozlan of October 2008: “She did volunteer that she has become somewhat withdrawn socially since the MVA in question… and started talking about her solitude… she often feels lonely.”

44I do not find the applicant’s mother’s testimony compelling. The applicant’s mother testified to worsening of the applicant’s symptoms of aggression and impulsivity post-accident. There is no empirical measure of this worsening provided and no assessor independently corroborated this assessment by the applicant’s mother. In contrast to the mother’s testimony, a review of clinical notes and records and reports highlights that the applicant has been aggressive and impulsive for a number of years prior to the subject accident. I note incidents over the applicant’s past that appear as aggressive and impulsive as any evidence submitted by the applicant’s mother: in 2018, the applicant threw a lamp at a local health authority worker during a home visit; in 2011, Dr. Yaroshevsky’s CNRs indicate that the applicant broke her mother’s nose with a bottle; in 2016, police records indicate that the applicant was apprehended for possession of a weapon, possession of a controlled substance and assault; North York General Hospital records indicate an emergency visit in December of 2016 for a cut foot which was reportedly sustained by kicking a glass window in; and in February 2019, the applicant was chemically and physically restrained for safety of hospital staff. In addition, I agree with Dr. Joseph’s assessment when he testified that violence between members of this family appears to be the norm.

45I agree with the respondent’s assessor, Dr. Joseph, when he opines that the applicant has difficulty with her social functioning because of a non-accident-related problem.

Does the applicant have a marked impairment in the sphere of adaptation?

46The factors to consider under the domain of deterioration or decompensation in work or work-like settings (otherwise known as “Adaptation”) refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances, the individual may withdraw from the situation or experience exacerbating signs and symptoms. He or she may decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stressors common to a work environment include attendance, making decisions, scheduling, completing tasks and interacting with others.

47For the reasons that follow, I find, on a balance of probabilities, that the applicant did not suffer a Class 4 marked Impairment in the sphere of adaptation, as a result of the subject accident.

48The applicant’s assessor concludes that the applicant has suffered a marked, Class 4 impairment in the domain of Adaptation as a direct result of the subject accident.

49The respondent’s assessor concludes that the applicant has suffered a moderate, Class 3 impairment in the domain of Adaptation as a direct result of the subject accident.

50I prefer the evidence of the respondent’s assessor. Dr. Joseph opines that the applicant is unable to work, which was the situation prior to the subject accident. Dr. Joseph’s conclusion that the applicant cannot work and that this was the case pre-accident is supported by the evidence from the applicant’s mother and Dr. Yaroshevsky which outlines that the applicant has never had a job. On a balance of probabilities, the applicant has not been able to work due to her pre-existing developmental delay.

51I am not persuaded by the applicant’s assessor, Dr. Belyakova, who draws a correlation between her findings in the area of activities of daily living and the functional sphere of adaptation to opine that the applicant was more functional pre-accident with regard to self care and grooming. The evidence from police and hospital records demonstrates that the applicant was not able to care for herself prior to the subject accident. Dr. Belyakova also opines that the applicant is “unable to make decisions on her own at the present time”. The evidence demonstrates that the applicant has been unable to make decisions on her own for some time prior to the accident and has been assigned a guardian for property by the courts.

52Evidence from hospital and police records that correlate to the dates of the applicant’s first eviction and actions following the break-up of a romantic relationship that pre-date the subject accident is to me demonstrative of the applicant’s adaptation skills pre-accident and are consistent with documented behaviours post accident.

53I find, on a balance of probabilities, that the applicant did not suffer a Class 4 marked Impairment in the sphere of adaptation, as a result of the subject accident.

Attendant care benefits

52I find that the attendant care benefits of $14,690.74 per month are not reasonable or necessary as a result of the accident.

53Section 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”).

54The Form 1 was completed by Ms. K. Chalova, OT on August 18, 2021. Ms. Chalova submitted that the applicant required 30 minutes (“min”) a day of assistance with dressing and undressing; 17 min per day of grooming support; 30 min per day of feeding support; one hour per day of mobility assistance; 17 min per day of laundry support; 13 min per day of cleaning support; approximately five min per day of bathing support; 10 min per day of incontinence support and 20 hours per day of skilled supervisory care totaling more than 23 hours of care per day and estimated at $14,690.76 per month.

55According to invoices submitted by Advanta Health Care Services Inc. between January 2022 and June 2023, the applicant was supported for a total of $47,656.29, for an average of $3,177.08 per month of attendant care services with a low of $894.23 in June 2022 and a high of $5,733.53 in April 2023. The recommended level of care by Ms. Chalova was never delivered. There wasn’t a single bill that saw attendant care services delivered daily.

56I am not persuaded by the evidence of Ms. Chalova, OT because her findings were diminished during cross-examination. Under cross examination, Ms. Chalova conceded that she was unaware of the opinions of Dr. Marciniek and Dr. Yaroshevsky that pre-date the subject accident by more than 10 years and submit that the applicant needs 24/7 supervisory care. Ms. Chalova was also not aware that the applicant had a guardian for property since 2008 and was not aware of the apprehensions by police on a Form 1 and conceded that the applicant’s addiction issues are a fundamental problem.

57I prefer the evidence of the respondent’s assessors:

i. Dr. Tugg, psychiatrist, in his report of March 5, 2024, opined that the applicant does not require the services of an aide or attendant to assist with personal care activities as a result of any impairment sustained in the subject accident, and that there isn’t enough evidence to show that her functional status has changed since the accident in any significant way. A great deal of evidence corroborates this opinion including the opinions of Dr. Yaroshevsky and Dr. Marciniek. It is also notable that the applicant, following her 2007 accident, required 24/7 supervisory care, which the applicant had been receiving at NRIO in Hamilton prior to her being signed out by her parents.

ii. Dr. Moddel, neurologist, in his report of December 20, 2022, stated that, from a neurological perspective, there is no evidence of impairment as far as the motor vehicle accident is concerned, that the applicant has not sustained an impairment which necessitates the services of an aide or attendant to assist with personal care activities. This strongly suggests that there are no physical reasons for 24/7 supervisory care.

iii. Dr. Oshidari, physiatrist, in his report of February 20, 2024, assessed that the applicant’s neurological examination was completely within normal limits. Dr. Oshidari found that, from a musculoskeletal point of view, the assessment failed to reveal any structural or physiological abnormality. This strongly corroborates Dr. Moddel’s findings.

58Exploring earlier evidence that followed the accident of 2007, Dr. Z. Marciniak, medical director of the Sports Medicine and Rehabilitation Clinic, opined on October 16, 2008, that the applicant is unmanageable without 24/7 supervision, she is at risk of getting hurt or hurting somebody, and she is quite erratic and unstable in her behaviour. I find that the applicant has demonstrated troubling mental and behavioural outbursts since at least 2008 and that these outbursts are of the same nature as those being reported on now. On a balance of probabilities, the applicant has required 24/7 supervisory care since at least 2007, well before the subject accident.

59On a balance of probabilities the applicant has required 24/7 supervisory care since her 2007 accident and there has not been adequate evidence to demonstrate that this situation has demonstrably changed as a result of the subject accident.

60The applicant has not met their onus to demonstrate on a balance of probabilities that their accident-related injuries are the cause for the need for 24/7 supervisory care.

61To 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 because 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.

Chiropractic Treatment Plan

62The applicant is not entitled to the balance of the chiropractic services, proposed by Polyclinic Rehabilitation Institute on July 15, 2021.

63The OCF-18 submitted by Polyclinic Rehabilitation Institute recommends an assessment, 18 sessions of 1.5 hours in length of chiropractic services, 18 sessions of 45 minutes in length of massage therapy, 18 sessions of 30 minutes in length of acupuncture and one hour of counseling, promoting health and preventing disease. The total cost of the recommended treatment is $5,296.64. The treatment plan was partially approved for $2,115.00. Additional medical documentation was requested, and it is noted that the North York General hospital record following the accident notes physical injuries that are all minor in nature. The goals of the treatment plan are pain reduction, increase in strength and range of motion. It is noted in the adjuster’s log notes that the applicant hadn’t attended physical therapy after November of 2021, and it is unclear whether the approved portion of the plan was fully utilized.

62No further evidence was submitted regarding the treatment plan and the applicant did not testify. I have no medical evidence regarding physical treatments. In my eyes, the OCF-18 alone is not sufficient to prove that a treatment is reasonable or necessary.

Transportation Plan

63The applicant is not entitled to the transportation plan, proposed by Polyclinic, to support the applicant’s attendance at Polyclinic.

64The OCF-18 submitted by Vladimir Levitin, chiropractor, is for supervised transportation, supporting the applicant to attend chiropractic sessions.

65The OCF-18 was denied by the respondent on the basis that the costs exceed the Transportation Expense Guideline produced by the Financial Services Commission of Ontario (“FSCO”) and referenced s. 15(2)(b) of the Schedule. The respondent also proposed that the applicant could utilize an OCF-6 to submit transportation expenses that transported her to services that were further than 50 kilometres from her residence.

66No specific submissions were made regarding the transportation plan by the applicant.

67The applicant has not met her onus of demonstrating the reasonable and necessary nature of this plan.

Psychological Assessment

68The applicant is not entitled to the $200.00 fee for a psychological screening in addition to the approved $2,200.00 psychological assessment from the OCF-18 dated October 26, 2021.

69Section 25(5)(a) of the Schedule is clear. Despite any other provision in the Schedule, an insurer shall not pay more than a total of $2,000.00 plus applicable harmonized sales tax in respect of fees and expense for conducting any one assessment or examination.

70The OCF-18 submitted by Yana Shcherbina, psychotherapist of Baskakova Psychology Professional Corp, proposes a psychological assessment, the goals for which are pain reduction and identification of symptoms of psychological distress.

71In partially approving the treatment plan, the respondent noted that, as per FSCO Costs of Assessments and Examinations Guideline of November 2010 and s. 25(5)(a) of the Schedule that the maximum payable for any one assessment was $2,200.00 and concluded that inclusion of the $200.00 for psychological screening is not reasonable or necessary.

72I find that the respondent has approved the maximum payable for this assessment. The applicant has not addressed why she is entitled to the remaining cost over the maximum payable. I find that, as per s. 25(5)(a) of the Schedule the respondent is not liable to pay a sum greater than the maximum payable for this assessment.

Assessment Plans

In-Home Assessment Plan

74The applicant is not entitled to the in-home assessment.

75The applicant submits that the plan is reasonable and necessary and relies on the testimony of Ms. K. Chalova, OT.

76The respondent submits that the plan is not reasonable or necessary and challenges the findings of Ms. Chalova as being contrary to the evidence.

77The plan proposes document support activity, 1.5-hour assessment, travel time, further document support activity, brokerage service and personal protective equipment for a total of $1,771.23. The stated goal of the service was “unknown at this time”. The assessment was to focus on the applicant’s physical, psychosocial, and cognitive function, in particular function in self-care, productivity and leisure as well as completion of a Form 1 (assessment of attendant care needs). In the barriers to recovery section, it is noted that the applicant has pre-existing oppositional defiance disorder and a developmental disability and that she required assistance with her normal activities of daily living.

64I am not persuaded by the evidence of Ms. Chalova, OT, who did not speak directly to this treatment plan during testimony. Based on submissions in the OCF-18, Ms. Chalova seems somewhat aware that the applicant had pre-existing issues but did not attempt to tease out what observable functional limitations were related to the accident, and which were pre-existing. As stated previously, Ms. Chalova conceded during testimony that she was unaware of the opinions of Dr. Marciniek and Dr. Yaroshevsky that pre-date the subject accident by more than 10 years and submit that the applicant needs 24/7 supervisory care. Ms. Chalova was also not aware that the applicant had a guardian for property since 2008 and was not aware of the apprehensions by police on a Form 1 and conceded that the applicant’s addiction issues are a fundamental problem.

78The necessity of the OCF-18 is not entirely clear when the stated goal is “unknown at this time”. Outside of Ms. Chalova, whose evidence did not persuade me, there is no other evidence to support the reasonableness or necessity of this plan.

79I find that the applicant has not met their burden to demonstrate that the plan is reasonable and necessary.

Assistive Devices Plan

80The assistive devices plan is not reasonable or necessary.

81The applicant relies on the testimony of Ms. K. Chalova, OT, and submits that the plan is reasonable and necessary.

82The respondent challenges the testimony of Ms. Chalova and submits that the plan is not reasonable or necessary as a result of the subject accident.

83The OCF-18 proposes a pre-paid cell phone and seven pairs of incontinence underwear along with document support activity and “prescription support activity” and is proposed by FunctionAbility in a plan submitted on February 14, 2021.

84Ms. Chalova proposes the pre-paid cell phone because the applicant regularly smashes her phone when she is upset. Her mother has suggested this is a new behaviour that arose following the subject accident, as stated previously I was not persuaded by the applicant’s mothers’ testimony. Ms. Chalova proposed the incontinence underwear because the applicant’s mother maintains that incontinence has arisen following the subject accident.

85I am not persuaded by the applicant’s evidence. The state of the applicant’s apartment during police apprehensions in 2019 and the evidence regarding the state of the applicant’s apartment in her first and second eviction demonstrate a great deal of damage to the applicant’s apartment and its contents. In addition, all assessors since 2008 note in their reports that the applicant is volatile. This evidence, taken together, leads me to conclude, on a balance of probabilities, that the applicant’s destruction of things is a behaviour which pre-dates the subject accident. In addition, no clear line of cause and effect has been drawn between the accident and the subsequent smashing of phones.

86The issue of incontinence was raised regularly by applicant’s counsel but has not been diagnosed by any care giver or assessor and details on the state of the applicant’s apartment during police apprehensions in 2019, with feces strewn throughout the apartment, demonstrates that on a balance of probabilities, the incontinence issues existed prior to the subject accident.

Housing Assessment Plan

87Section 16(1) of the Schedule states that rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person that are reasonable and necessary to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the person reintegrating into their family, society, and the labour market. Section 16(3)(i) of the Schedule states that these activities include home modifications and home devices that accommodate the needs of the insured person.

87I find that the housing assessment, the goal of which was to increase safety and accessibility of the applicant’s residence, was not reasonable or necessary.

88The applicant relies on the report and testimony of Allison Poole, OT. And submits that the plan is reasonable and necessary for the applicant’s recovery from accident-related injuries.

89The respondent challenges the report of Allison Poole, OT and questions the degree to which the functional limitations identified are related to the subject accident.

90The evidence shows the applicant has a precarious living situation with long standing difficulties maintaining housing and became homeless due to eviction, for a second time, a year and a half following the subject accident. It is apparent the applicant had been living with a boyfriend in a city-contracted hotel being operated as a homeless shelter, since before the date of the accident and her eviction. The applicant has also been apprehended on a Form 1 multiple times following police attendance at her residence. It is not apparent that the applicant is seeking any form of permanent shelter.

91I am not convinced the applicant is interested in home modifications. Ms. Poole testified that the applicant was present during the assessment but didn’t want to participate, became agitated, upset, and threw her phone and has not consented to any of the three options explored in the report. Ms. Chalova, OT was also present for the housing assessment and indicated in her report that the first assessment was cut short as the applicant became emotionally explosive and threw her cell phone and chairs. The fact that the applicant has not consented to any of the resulting options and was demonstrably agitated during the assessment suggests on a balance of probabilities that the applicant is not interested in housing modifications; if the applicant is not supportive, and in the absence of evidence from the guardian for property (the applicant’s guardian for property is her brother, he was not called as a witness) any arguments for the reasonableness and necessity of the plan are afforded a lesser weight.

92I am not persuaded by the evidence of Ms. Poole who identified several safety concerns with the residence including security, as the front door was missing the door handle; safety, as the flooring is inconsistent with some parts missing, lighting was broken and inconsistent and there was damage to all cabinets, windows, and mirrors. All noted damage is as a result of the applicant and based on the apprehension on the Form 1 by police in February and May of 2019 and the related North York General hospital records which indicate that this was the state of the apartment prior to the subject accident. During cross examination, it became apparent that Ms. Poole was not aware of the 2008 and 2016 opinions of Dr. Yaroshevsky that the applicant was not functional at all and required a 24/7 sheltered environment; was not aware the applicant had previously been admitted to a 24/7 sheltered environments at NRIO in Hamilton and Mary Fraser House in Toronto, in both situations she was signed out by one of her parents and deserted from each in 2009; and, was not aware that the applicant had previously been evicted from an Etobicoke apartment for the exact same reasons as the most recent eviction.

93I provide Ms. Chalova OT’s evidence a diminished weight because she worked very closely with the applicant but appears to be unaware of the serious pre-existing mental and behavioural issues the applicant faces. By this time, Ms. Chalova had moved from working with the client in a treating OT capacity, as the applicant was hard to engage in OT work, to a case management role. Ms. Chalova as case manager acted as a translator, provided emotional support, and attempted to ensure the applicant participated in s.44 and s.25 assessments. Ms. Chalova worked with the applicant from June 2021 through to August 2023. Ms. Chalova was not aware that the applicant did not have a guardian for care; had been a resident multiple times of a 24/7 supervisory care facility and was not aware of the 2009 opinion of Dr. Yaroshevsky, that the applicant required 24/7 supervised care. Ms. Chalova was aware of the applicant’s substance abuse issues and the 2018 Developmental Services Ontario report which highlighted that the applicant must deal with her substance abuse issues prior to admission to a 24/7 supervisory care facility; however, Ms. Chalova was unable to state why such a pervasive and fundamental issue was not addressed in any way in any of her reports.

94I find that the applicant has not met their burden to demonstrate that the plan is reasonable and necessary as a result of the subject accident.

Housing modification plan

95The OCF-18 for the housing modification plan was submitted by Ms. Chalova, OT and proposes three options for modifications that range from $1,340,000.00 to $1,633,900.00 in modifications and was submitted September 26, 2022.

96As set out above, the applicant was a resident of a 24/7 supervisory care facility, the applicant, with her parent’s assistance, permanently departed these services against the recommendation of the staff. The applicant has had recommendations for 24/7 supervisory care by Dr. Yaroshevsky well prior to the subject accident. The applicant applied for Developmental Services Ontario (“DSO”) supports prior to the subject accident and the assessment by DSO was that the applicant needed to deal with substance abuse issues before being accepted into a 24/7 supervisory care residence, it is noted that the applicant was not interested in dealing with those issues at that time.

97As the applicant has not been found to be catastrophically impaired as a result of the subject accident, the housing modification plan is not reasonable or necessary.

Interest

98As there is no outstanding payment of benefits, interest does not apply.

Award

99The 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. No submissions regarding the particulars of an award were made. I therefore find that no award is due.

ORDER

100For the reasons above, I find:

i. The applicant, on a balance of probabilities, has not sustained a catastrophic impairment as a result of the accident.