Licence Appeal Tribunal File Number: 24-000438/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:
Richard Janssen
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Caley Howard
APPEARANCES:
For the Applicant:
Derek L Smith, Counsel
For the Respondent:
Dan Hynes, Counsel
Ada Lika, Counsel
Court Reporter:
Deb Fraser
HEARD: by Videoconference:
January 20, 21, 22, 23 and 24, 2025
OVERVIEW
1Richard Janssen, the applicant, was involved in an automobile accident on July 16, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, 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 $11,396.75 for other assistive devices proposed by Karen Rucas & Associates (KRA) in a treatment plan/OCF-18 (“plan”) submitted April 26, 2023?
iii. Is the applicant entitled to $2,260.00 for a mental/behavioural assessment, proposed by Omega Medical Associates in a plan submitted March 10, 2022?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3During the hearing, the applicant withdrew part of his claim for assessments proposed by Omega Medical Associates, leaving the amount set out in paragraph 2(iii) above.
RESULT
4I find:
i. The applicant has not sustained a catastrophic impairment as defined in the Schedule;
ii. The applicant is partially entitled to the treatment plan for assistive devices;
iii. The applicant is not entitled to the treatment plan for a mental/behavioural assessment;
iv. The respondent is not liable to pay an award under s. 10 of Reg. 664; and
v. The applicant is entitled to interest on the part of the treatment plan for assistive devices to which he is entitled.
PROCEDURAL ISSUES
Motion to exclude the Form 1 Assessment of Attendant Care Needs
5On the first day of the hearing, the respondent sought an order to exclude the Form 1 from evidence on the basis that it was irrelevant to the issues in dispute. Although I denied the respondent’s motion and asked for submissions as to the weight to be given the document in closing submissions, and although the respondent made submissions respecting weight, the issue became moot because the applicant did not rely on the Form 1 in his closing submissions.
Motion to exclude the applicant’s book of authorities
6On the fourth day of the hearing, the respondent sought an order to exclude the applicant’s book of authorities, which was filed that day. Although I denied the respondent’s motion and asked for further submissions on the book of authorities in closing remarks, the issue became moot when the applicant confirmed that he was not relying on any of the authorities included in his late-filed book of authorities.
Motion to exclude the testimony of the respondent’s witness, Dr. Hassouna
7On the fourth day of the hearing, the applicant sought an order excluding Dr. Magdy Hassouna, urologist, from providing testimony during the hearing because the respondent did not provide a signed Acknowledgment of Expert Duty (AED) from Dr. Hassouna 21 days prior to the hearing in accordance with the Case Conference Report and Order.
8The applicant submitted that he was prejudiced by the late filing of the AED because the combination of Dr. Hassouna’s failure to provide his AED within the deadline, in combination with Dr. Hassouna’s failure to produce his clinical notes and records and draft reports in accordance with the Case Conference Report and Order, led the applicant to doubt whether Dr. Hassouna understood his duty as an expert.
9The respondent acknowledged that Dr. Hassouna’s signed AED was not filed 21 days before the hearing. The respondent explained that Dr. Hassouna’s office originally sent it an unsigned copy of the AED and that this error, combined with the holidays, led to the late filing. The respondent submits that the applicant was not prejudiced by the late filing and that, if he had been truly prejudiced, he would have objected sooner to the respondent’s reliance on Dr. Hassouna’s testimony, rather than waiting until the fourth day of the hearing to raise his concerns.
10I declined to grant the applicant’s motion. I found that the applicant was not prejudiced by the late-filing of Dr. Hassouna’s AED and we would hear his testimony as scheduled because the signed AED was filed prior to the beginning of the hearing and an identical AED was included in Dr. Hassouna’s signed report dated February 16, 2024, approximately a year before the start of the hearing.
ANALYSIS
Catastrophic Impairment – Criterion 7
11For the following reasons, I find that the applicant is not catastrophically impaired as defined by the Schedule.
12An insured person is catastrophically impaired under Criterion 7 when an accident causes them an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (the Guides), results in a 55% or more whole person impairment (WPI) rating.
13The test to determine causation is the “but for” test. Causation is a factual determination made on a balance of probabilities: see Sabadash v. State Farm et al, 2019 ONSC 1121. The applicant must show that she would not have suffered the injuries “but for” the subject accident. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause.
14The applicant submits that he sustained combined impairments that result in a WPI rating of 55%. He relies on the Catastrophic Impairment Evaluation performed by Omega Medical Associates and dated August 17, 2022. He also relies on the testimony of Dr. Lisa Becker, physiatrist, who was responsible for the clinic summary, Dr. Christian Fortin, physiatrist, who performed the physiatry assessment, and Dr. Lara Davidson, psychologist, who performed a psychological assessment and a mental/behavioural analysis assessment.
15The respondent submits that the applicant sustained a 40% WPI rating. It relies on the responding Catastrophic Impairment Determination report prepared by HVE Healthcare Assessments and dated February 16, 2024. It also relies on the testimony of Dr. Curt West, neuropsychologist, who performed a neurocognitive assessment and a psychology assessment, and Dr. Hassouna, urologist, who performed a urology assessment and urodynamic study.
16The parties agreed with respect to the ratings assessed for several of the applicant’s impairments and disagreed with respect to others. The applicant’s impairments as assessed by the applicant’s and respondent’s experts, Omega and HVE respectively, are summarized as follows:
Impairments
Omega
HVE
Patellofemoral pain
4%
4%
Lumbosacral spine impairment
5%
5%
Cervicothoracic spine impairment
25%
25%
Neurogenic bowel/ fecal incontinence
5%
5%
Right upper extremity
5%
0%
Neurogenic bladder
5%
0%
Sexual impairment
9%
0%
Psychological impairment
17%
7%
TOTAL
55%
40%
17As the parties are in agreement, I accept the ratings set out above for the applicant’s patellofemoral pain, lumbosacral spine impairments, cervicothoracic spine impairment and neurogenic bowel/ fecal incontinence. I will examine each of the remaining areas of impairment in turn.
What is the appropriate rating for the applicant’s psychological impairment?
18For the following reasons, I find that the appropriate WPI rating for the applicant’s psychological impairments is 15%.
19The applicant relies on the psychological assessment and mental/behavioural assessment performed by Dr. Lara Davidson, psychologist, for Omega, on June 7 and 8, 2022. The applicant submits that Dr. Davidson’s opinion and WPI rating should be preferred to Dr. West’s because Dr. Davidson provided more analysis to support her opinion. Dr. Davidson diagnosed the applicant with:
i. Somatic Symptom Disorder with predominant pain, mild; and
ii. Other Specified Depressive Disorder, depressive episode with insufficient symptoms.
20The respondent relies on the psychology assessment report of Dr. Curt West, psychologist, dated February 16, 2024. Dr. West assessed the applicant on May 1, 2023. The respondent submits that Dr. West’s score is to be preferred as Dr. Davidson did not provide her own pinpoint score. Rather, it was Dr. Becker, a physiatrist, who chose the pinpoint of 17% within the range provided by Dr. Davidson. The respondent also submits that Dr. West’s score of 7% is more reasonable and is more supported by the evidence generally.
21I find that Dr. Davidson assigned the applicant a Global Assessment of Functioning (GAF) score of 59-61, which straddles the upper end of the mild impairment rating and the lower end of the moderate impairment rating, and then applied the GAF to the Schedule for Rating Permanent Disabilities published by the State of California to convert the mental and behavioural impairment into a WPI rating range of 14-17%. This method of evaluation is known as the “California Method”, which the parties agreed was the appropriate method to use in the circumstances.
22I find that Dr. West diagnosed the applicant with Somatic Symptom Disorder with predominant pain, mild, but found no clinically significant symptoms of depression. Dr. West assigned the applicant a GAF score of 61-70, which corresponds to the mild impairment range and used the California Method to convert this impairment to a WPI rating range of 0-14%. I find that Dr. West provided a pinpoint of 7% within that range for use in calculating the total WPI rating.
23I prefer Dr. Davidson’s report to Dr. West’s report because I find that she included in her report a more in-depth analysis of why she chose a GAF range of 59-61, by addressing the applicant’s functioning in different areas of his life and addressing how his psychological impairments affect his functioning in each area. In contrast, Dr. West’s choice of impairment ratings did not involve an analysis of the applicant’s functioning in different areas, but relied on a global conclusion that none of the applicant’s limitations were attributable to mental health factors.
24I accept Dr. Davidson’s explanation that the “mild” qualifier in her diagnosis is an indicator of the number of symptoms reported by the applicant rather than the severity of those symptoms or the level of impairment caused by them. I note that Dr. West did not disagree with this explanation, although he did opine that there was generally a correlation between the mild qualifier and the level of impairment.
25I find that Dr. Davidson subjected the applicant to 9 psychometric tests, compared to the three tests performed by Dr. West, and reported no validity concerns, which I find likely provided her with additional data with which to form her opinions when compared to Dr. West.
26I find that Dr. Davidson’s observations and reports of the applicant’s impairments are more in line with the evidence provided by the applicant at the hearing, such as his low drive and ambition, lower ability to complete tasks, increased irritability with his wife and children, and his reduced engagement in social activities, when compared with Dr. West’s report.
27I further find that Dr. Davidson’s observations and opinions correspond with and account for the observations of Dr. Fortin and Shahla Kara, occupational therapist, whose assessments were also part of the Omega Catastrophic Impairment Evaluation.
28At the hearing, Dr. West opined that the depressive symptoms observed by Dr. Davidson could be attributed to the death of the applicant’s mother, father-in-law and dog, which all occurred at around the time of Dr. Davidson’s assessment. However, I find that Dr. Davidson considered the 2014 death of the applicant’s mother, the 2021 death of the applicant’s dog, the 2022 death of the applicant’s father-in-law and the death of a close friend, as well as the stressors of the COVID-19 pandemic, and opined that because the applicant’s symptoms related primarily to his perception of pain and his related limitations, it was reasonable to conclude that the accident was a cause of his psychological impairments. I find that the described events may have contributed to the applicant’s impairments but I agree with Dr. Davidson’s assessment and find that the applicant has proven that these impairments were the result of the accident.
29Dr. West also opined at the hearing that the applicant’s psychological impairments may have improved in the year between Dr. Davidson’s assessment and his own, which would account for the differences between their reports and the WPI ratings advanced by each. While the respondent submits that this improvement demonstrates that the applicant’s psychological impairments are not permanent and should not be given a WPI rating, I do not accept Dr. West’s theory respecting the cause for the differences between Dr. Davidson’s report and Dr. West’s report because I was not directed to evidence, outside of the difference between the two reports, that would support Dr. West’s theory.
30With respect to the pinpoint score, I agree with the respondent that Dr. Davidson did not provide a pinpoint WPI rating within the range that she provided of 14% - 17% for use in calculating a total WPI. The evidence shows that it was Dr. Becker who chose the pinpoint of 17% to calculate a total WPI. As Dr. Becker is not a psychologist and did not evaluate the applicant directly, I do not accept her pinpoint of 17%.
31I find that Dr. Davidson gave a reasoned analysis as to why she chose her GAF score range of 59-61. She explained that she felt the applicant fell at the upper end of the mild impairment range or the lower end of the moderate impairment range and that out of the three scores she chose, two of those scores fell at the lower end of the moderate range (59 and 60) and only one fell at the upper end of the mild range (61) because she felt that his impairments leaned more to the moderate than the mild, although he was right on the cusp. I find that of the range provided by Dr. Davidson, the GAF score of 60 is most representative of Dr. Davidson’s opinion as to where the applicant’s impairment fell. Specifically, I find that 60, as the score that corresponds with the lower end of the moderate range, leans more toward moderate than mild, while still being right on the cusp between a mild and moderate impairment.
32I further find that a GAF score of 59 would be at odds with Dr. Davidson’s agreement during her cross-examination that the applicant’s impairments were not severe enough to place him decidedly in the moderate range of impairment. I therefore find that Dr. Davidson’s analysis supports a GAF score of 60, which corresponds to a WPI rating of 15%.
33On a balance of probabilities, I find that the applicant’s WPI rating for psychological impairments is 15%.
WPI rating for a neurogenic bladder
34I assign the applicant a WPI rating of 0% for a neurogenic bladder.
35The applicant submits that he has suffered from a neurogenic bladder since the accident, which has resulted in a reduced stream when he urinates, an increased urinary urgency, and occasional mild incontinence. The applicant relies on his testimony and on the physiatry assessment of Dr. Fortin, which occurred on June 8, 2022. Dr. Fortin advanced a WPI rating of 4-5% for the applicant’s urinary dysfunction, which Dr. Fortin opined was likely a consequence of his cervical spondylotic myelopathy. The applicant further submits that he did not report his urinary dysfunction to Dr. Taylor or any other medical practitioner for several years after the accident because he felt it was a minor issue and he could handle it himself. He testified that it was only as the issue became worse over time that he decided to report it to Dr. Taylor. The applicant testified that he found speaking about this issue embarrassing and any failure to report urinary dysfunction to a medical practitioner was due to his reluctance to talk about it.
36The respondent submits that the applicant’s urinary dysfunction is not due to a neurogenic bladder and that his “lower urinary tract symptoms” are caused by an enlarged prostate, which is typical for men over 45. The respondent relies on the Urology Assessment Report and Urodynamics and Cystospcopy Report of Dr. Hassouna and submits that Dr. Hassouna’s WPI rating of 0% for a neurogenic bladder should be preferred over Dr. Fortin’s opinion as it was based on Dr. Hassouna’s objective testing of the applicant.
37I accept the applicant’s submission that he did not want to discuss symptoms relating to urinary dysfunction due to embarrassment and that he did not report such symptoms as soon as they occurred. However, I find that the length of time between the accident and when the applicant started reporting urinary dysfunction to medical professionals was approximately 9 years. I find that this is a long time for anyone’s memory to retain an accurate account of the advent of symptoms. I further find that the applicant’s testimony respecting his urinary symptoms was vague and unclear with respect to timing. I therefore give less weight to the applicant’s testimony respecting when his symptoms of urinary dysfunction began.
38I find that the CNRs of Dr. Taylor show that the applicant did not report urinary issues to Dr. Taylor until October 5, 2022, when he reported that his symptoms had been gradually worsening. I further find the CNRs of Dr. Taylor show that the applicant underwent an ultrasound on June 2, 2023, which showed an enlarged prostate.
39I prefer Dr. Hassouna’s opinion respecting the applicant’s bladder dysfunction over that of Dr. Fortin because Dr. Hassouna’s opinion relies primarily on the results of his objective urodynamic tests, while Dr. Fortin’s opinion relies on the applicant’s reports to Dr. Fortin and a co-incidence between cervical myelopathy with neurogenic bowel and neurogenic bladder. I further find that the medical records do not corroborate the applicant’s reports that his urinary symptoms began shortly after the accident. In addition, I find that Dr. Hassouna’s opinion that the applicant’s urinary symptoms are caused by an enlarged prostate is conrroborated by Dr. Taylor’s CNRs, which show that he had an enlarged prostate in June 2023.
40I find that the applicant has not demonstrated on a balance of probabilities that his bladder dysfunction was the result of the accident. Therefore, I assign the applicant a WPI rating of 0% for a neurogenic bladder.
WPI rating for sexual dysfunction
41I assign the applicant a WPI rating of 9% for sexual dysfunction.
42The applicant submits that a WPI rating of 9% for sexual dysfunction is appropriate and relies on the addendum to the physiatry assessment report of Dr. Fortin, dated August 10, 2022, in which Dr. Fortin advanced a WPI rating of 7-9% based on a telephone conversation with the applicant. Dr. Fortin opined that the applicant’s sexual dysfunction was likely related, at least in part, to his cervical radiculomyelopathy.
43The respondent submits that a WPI rating of 0% should be advanced for sexual dysfunction. The respondent relies on the urology assessment report, urodynamic testing report and testimony of Dr. Hassouna. The respondent also relies on Dr. Hassouna’s testimony that the applicant does not have sexual dysfunction because it cannot occur without neurogenic bladder, and Dr. Hassouna ruled out the neurogenic bladder. The respondent further submits that Dr. Fortin’s addendum should be given less weight because of the confusion with respect to how and when he was asked to assess the applicant for sexual dysfunction. The respondent submits that the timing of the addendum report allowed Dr. Fortin to review the WPI scores from the remaining assessments and increase the applicant’s total WPI score accordingly so that it fell within the CAT range. The respondent also submits that the applicant’s sexual dysfunction cannot be considered permanent because he has refused medications that may be able to treat the condition.
44While I find that the respective testimony of Dr. Becker, Dr. Davidson and Dr. Fortin was uncertain with respect to exactly who asked Dr. Fortin to look into the issue of sexual dysfunction and when that request was made, I find that this uncertainty is not relevant to the reliability of Dr. Fortin’s opinion because I accept Dr. Fortin’s testimony that he did not look at Dr. Davidson’s WPI rating or the combined WPI ratings to date prior to advancing a rating for sexual dysfunction.
45Dr. Fortin testified that in his practice he regularly sees a co-incidence between neurogenic bowel, neurogenic bladder and sexual dysfunction in his patients with cervical myelopathy. He testified that the nerve pathways for these three functions are close together and so if one pathway is damaged it is not uncommon for another pathway to be damaged as well.
46I find that the applicant’s sexual dysfunction is likely permanent and that it was appropriate for Dr. Fortin to assign it a WPI rating because the applicant’s evidence is that the dysfunction has been consistent for more than ten years since the accident. I further find that the applicant testified about his reluctance to take medications due to a concern about side-effects and I was not directed to evidence with respect to the efficacy and side-effects of any specific treatments that were recommended to the applicant for his sexual dysfunction.
47I find that Dr. Hassouna’s urology assessment report indicates that the applicant advised him that he was experiencing no sexual dysfunction. However, the applicant testified that he told Dr. Hassouna about his sexual dysfunction symptoms after he underwent the urodynamic testing with Dr. Hassouna.
48The applicant submits that I should draw an adverse inference with respect to this difference between the accounts of Dr. Hassouna and the applicant because Dr. Hassouna did not provide his clinical notes and records (CNRs) to the applicant in accordance with the Case Conference Report and Order. However, I find that an adverse inference is not necessary. I do not place significant weight on this sentence of Dr. Hassouna’s urology assessment report because I find that Dr. Hassouna agreed during his testimony that he was not asked to provide a WPI rating for sexual dysfunction and that he did not do so.
49I find that the applicant did not report his sexual dysfunction to Dr. Taylor or to another medical practitioner for several years after the accident. I accept his explanation that he found this topic embarrassing and did not wish to discuss it, even with medical practitioners. I find that the applicant’s testimony respecting his symptoms of sexual dysfunction was clear and unequivocal. I therefore place significant weight on the applicant’s testimony that he had no problems with sexual function prior to the accident, but that he and his wife have stopped having a sexual relationship since the accident.
50I do not accept the respondent’s submission that Dr. Hassouna’s opinion that the applicant cannot have sexual dysfunction because Dr. Hassouna ruled out bladder dysfunction should be preferred over Dr. Fortin’s opinion and score for sexual dysfunction. During his testimony, Dr. Hassouna opined that a person could not have sexual dysfunction without also having bladder dysfunction and, as Dr. Hassouna had ruled out bladder dysfunction with his tests, the applicant did not have sexual dysfunction. In contrast, Dr. Fortin opined that there was often a co-incidence between bladder dysfunction and sexual dysfunction in myelopathy patients, because the respective nerve pathways are so close together, but did not agree that one was impossible without the other. I prefer the opinion of Dr. Fortin in this regard because Dr. Hassouna’s testimony, in particular his definitive opinion on the applicant’s sexual functioning, which he had not specifically assessed, came across as defensive and advocating for the respondent.
51I find that Dr. Fortin is qualified to assess the applicant’s sexual functioning and that he was the only medical professional to do so for the purposes of the CAT assessments. I find that Dr. Hassouna was not specifically asked by HVE to perform such an assessment and so he did not perform one. I find that his critiques of Dr. Fortin’s assessment do not persuade me to discount Dr. Fortin’s assessment. In his testimony, Dr. Fortin justified his decision to advance a WPI rating of 7-9% for sexual dysfunction due to the severity of the applicant’s symptoms. Dr. Fortin opined that because the applicant continued to have some sensation and some partial erections, a first tier impairment rating was appropriate, but the severity of the applicant’s symptoms placed him at the higher end of that range.
52Based on Dr. Fortin’s justification for his WPI rating of 7-9% and the applicant’s testimony respecting the severity and duration of his symptoms, I find, on a balance of probabilities, that the applicant’s WPI score for sexual dysfunction is 9%.
WPI rating for the applicant’s right upper extremity impairment
53I assign a 5% WPI rating for the applicant’s right upper extremity impairment.
54The applicant submits that the rating of 5% for the applicant’s right upper extremity impairment, as assessed by Dr. Fortin, is appropriate. The applicant submits that he provided unchallenged evidence respecting his reduced grip strength, tingling and weakness in his right upper extremity that resulted in his inability to return to work after the accident because he could no longer steer a truck. The applicant submits that Dr. Fortin’s rating with respect to this impairment should be preferred over those of Dr. Angel and Dr. Yee because neither Dr. Angel nor Dr. Yee testified at the hearing and so the evidence from their reports remains unchallenged, unlike the evidence of Dr. Fortin.
55The respondent submits that the reduced grip strength, tingling and weakness that the applicant has reported in his right hand were accounted for by Dr. Angel in his neurological assessment report dated February 16, 2024.
56The applicant testified that he suffered from weakness in his right arm and reduced grip strength almost immediately after the accident and this was one of the main factors involved in his inability to return to work after the accident. The applicant also testified that his reduced grip strength caused him to drop plates and that he needed to use his left hand for certain chores, like sweeping.
57I find that Dr. Yee’s orthopedic assessment found no ratable accident-related impairments leading to an upper extremity rating. However, I find that Dr. Yee did not test the applicant’s grip strength, I therefore prefer Dr. Fortin’s opinion to Dr. Yee’s report.
58Dr. Angel advanced a WPI of 25% for the applicant’s myelopathy with hyperreflexia and mild hip flexion weakness. Dr. Angel’s report refers to Table 73 on page 110 of the AMA Guides, which describes the levels of impairment that apply to cervicothoracic impairment. I find that both Dr. Fortin and Dr. Angel assigned the applicant to the DRE IV level of impairment, which includes a finding of radiculopathy.
59I find that there is nothing in Dr. Angel’s report that supports the respondent’s submission that Dr. Fortin was essentially double-counting when he scored both a DRE IV level of cervicothoracic impairment and a right upper extremity impairment. Dr. Fortin justified his methods during his cross-examination by the respondent and maintained that had the applicant’s cervicothoracic impairment been assigned a higher rating (DRE V, pursuant to the AMA Guides), the higher rating would have accounted for the applicant’s loss of function in his dominant hand. However, Dr. Fortin opined that the applicant’s loss of function in his dominant hand was not accounted for in the DRE IV rating that both Dr. Fortin and Dr. Angel agreed upon, despite the radiculopathy symptoms that are required for a DRE IV rating. As a result, Dr. Fortin opined that it was appropriate to advance a separate rating to account for the loss of grip strength and loss of dexterity to the applicant’s dominant hand. In the circumstances, I accept Dr. Fortin’s justification for his methods.
60With respect to the WPI range for upper body extremity impairment, I prefer the opinion of Dr. Fortin to that of Dr. Angel because Dr. Angel’s report does not indicate that the applicant’s grip strength was measured despite noting that the applicant reports reduced grip strength in his right hand. In addition, Dr. Angel’s report does not specify that the applicant’s reduced grip strength is factored into the 25% rating for the applicant’s cervicothoracic impairment.
61In his testimony, Dr. Fortin opined that the applicant’s symptoms landed him within the mid-point of first tier impairment. Five percent is the mid-point of the first tier (1-9% for an upper body extremity impairment affecting the dominant hand). Therefore, I find, on a balance of probabilities, that the applicant’s WPI rating for the right upper body extremity impairment is 5%.
Total WPI rating
62In light of the WPI ratings I have accepted, as summarized below, I find that the applicant has a total WPI rating of 52%. The AMA Guides state that a final WPI is rounded up or down to the nearest 0 or 5. As the final WPI is 52%, the applicant does not meet the threshold of 55% and therefore has not sustained a catastrophic impairment.
Impairments
Accepted Rating
Patellofemoral pain
4%
Lumbosacral spine impairment
5%
Cervicothoracic spine impairment
25%
Neurogenic bowel/ fecal incontinence
5%
Right upper extremity
5%
Neurogenic bladder
0%
Sexual impairment
9%
Mental and behavioural impairments
15%
TOTAL
52%
63I find that the applicant is not catastrophically impaired as a result of the injuries he sustained in the accident.
Entitlement to treatment plans
64To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
65I find that the applicant is partially entitled to the treatment plan for assistive devices.
66The treatment plan for assistive devices, completed by Heather Pickin, occupational therapist and submitted April 26, 2023 sought funding of $11,396.75 for various assistive devices and services as follows:
i. A bath scrubber, reacher, dustpan and brush, pails/mops, food processor, cordless string trimmer to assist the applicant with household chores, at a cost totaling $571.59;
ii. A split bed, mattresses and a cervical pillow at a cost of $7,808.00;
iii. Occupational therapist services, including education and documentation support at a cost of $798.00; and
iv. A toenail clipper, foot brush, shoe horn and shipping costs at a total of $269.92.
67The applicant submits that the treatment plan is reasonable and necessary because it will supply the applicant with modestly priced devices that will help prevent the exacerbation of his pain symptoms and promote his participation in more of his pre-accident activities. The applicant relies on the treatment plan and the occupational therapy in-home assessment report of Heather Pickin, occupational therapist, dated November 29, 2021 and Ms. Pickin’s testimony.
68The respondent submits that the applicant has not demonstrated that the treatment plan is reasonable and necessary and relies on the occupational therapy in-home assessment report of Shaynee Mehta, occupational therapist, dated September 19, 2023. The respondent submits that I should prefer Ms. Mehta’s report to that of Ms. Pickin due to the 18 months that passed between Ms. Pickin’s assessment and her submission of the treatment plan.
69I find that Ms. Pickin made the recommendations for assistive devices based on her assessment of the applicant approximately 18 months prior to submitting the treatment plan. The applicant submits that the permanent nature of the applicant’s injuries means that I can assume that the applicant’s needs did not change in the 18 months prior to the submission of the treatment plan. However, I find that this is not the case. While I heard much evidence that the applicant continued to suffer from his accident-related impairments, I was not directed to evidence that the applicant continued to require the recommended assistive devices at the time of the treatment plan. Ms. Pickin testified at the hearing that she suggested doing an updated assessment prior to submitting a treatment plan but was asked to just submit the treatment plan based on the existing assessment. Ms. Pickin also confirmed that she had not received any updated medical documents to review prior to submitting the treatment plan.
70In contrast, I find that Ms. Mehta conducted her assessment on August 18, 2023, which was four months after the submission of the treatment plan. With the exception of Ms. Mehta’s opinion respecting the reasonableness and necessity of the bed, mattress and pillow, I place more weight on Ms. Mehta’s opinions respecting the assistive devices, as they are based on observations that she made more contemporaneously with the submission of the treatment plan. I find that Ms. Mehta opined that the applicant demonstrated sufficient ranges of motions that he did not require the assistive devices. Therefore, I prefer the opinion of Ms. Mehta with respect to the assistive devices, except for the bed, mattress and pillow.
71I note that Ms. Mehta’s opinion respecting the bed, mattress and pillow was based on a physiatry assessment performed by Dr. Alfonse Marchie, dated April 14, 2022, which was not in evidence before me and which appeared to include opinions that were contradictory to those made by both the Omega assessors and the HVE assessors, such as that the applicant’s knee pain was not related to the accident. Therefore I give little to Ms. Mehta’s opinion respecting the reasonableness and necessity of the bed, mattress and pillow.
72With respect to the bed, mattress and pillow, I accept Ms. Pickin’s opinion that they are reasonable and necessary, which was supported by the applicant’s testimony that his pain levels make it difficult for him to fall asleep and stay asleep at night. The treatment plan itself indicates that the cost of the bed and mattress was sourced from casper.com, which I accept as reasonable in the circumstances.
73With respect to the occupational therapy services proposed in the treatment plan, I find that these were tied to the assistive devices. Ms. Pickin testified that when an occupational therapist recommends an assistive device, they are required to teach the recipient how best to use the device. Because I found that the bed, mattress and pillow are reasonable and necessary, but not the remainder of the assistive devices, I find that a portion of the occupational therapy services are reasonable and necessary. Because the bed and mattress represent what I find is likely the most complex of the proposed assistive devices, I find that 50% of the proposed cost of occupational therapy services is reasonable and necessary in the circumstances.
74For the foregoing reasons, I find that the applicant has proven, on a balance of probabilities, that he is entitled to the bed, mattress and pillow and to 50% of the proposed occupational therapy services.
75I find that the treatment plan for a mental/behavioural assessment is not reasonable and necessary.
76In order for an assessment plan to be found reasonable and necessary, the insured has the onus of proving that there are reasonable grounds to believe that a condition exists that would warrant further investigation.
77The treatment plan, completed by Omega Medical Associates and submitted March 10, 2022, sought funding for various assessments related to the CAT evaluation, including $2,260.00 for a mental/behavioural assessment under criterion 8.
78The applicant submits that the assessment was reasonable and necessary as part of the applicant’s CAT evaluation and that despite the respondent’s agreement to pay for a psychological assessment, that a mental/behavioural assessment is a different assessment used to make a different determination under the Schedule. The applicant relies on the treatment plan in support of his claim.
79The respondent submits that it denied the assessment on the basis that it was a duplication of services given it had agreed to pay for the proposed psychological assessment. The respondent submitted that Dr. Davidson did not need to perform two assessments to assess the applicant under Criterion 7 and Criterion 8. The respondent relies on its denial letter dated December 19, 2022.
80I find that I was not directed to evidence supporting the need for the mental/behavioural assessment, which was to be completed for the purpose of determining the applicant’s CAT impairment under criterion 8.
81Therefore, I find that the treatment plan for the mental/behavioural assessment was not reasonable and necessary.
Interest
82Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the portion of the treatment plan for assistive devices to which I have found he is entitled.
Award
83The 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this criteria.
84The applicant made no submissions respecting his claim for an award. As I have not been directed to evidence of the respondent’s unreasonable conduct, I find that an award is not warranted.
ORDER
85I find:
i. The applicant has not sustained a catastrophic impairment as defined in the Schedule;
ii. The applicant is partially entitled to the treatment plan for assistive devices;
iii. The applicant is not entitled to the treatment plan for a mental/behavioural assessment;
iv. The respondent is not liable to pay an award under s. 10 of Reg. 664; and
v. The applicant is entitled to interest on the part of the treatment plan for assistive devices to which he is entitled.
Released: March 19, 2025
Caley Howard
Adjudicator
