Licence Appeal Tribunal File Number: 23-014159/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:
Patricia Black
Applicant
and
Western Assurance Company
Respondent
DECISION
ADJUDICATOR:
John Mazzilli
APPEARANCES:
For the Applicant:
David Donnelly, Counsel
For the Respondent:
Anju Sharma, Counsel
Court Reporter:
Victoria Janda
Heard by Videoconference:
December 9, 10, 11, 12, 13, and 16, 2024
OVERVIEW
1Patricia Black (the “applicant”) was involved in an automobile accident on August 13, 2018, 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”), Western Assurance 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 $6,774.45 for cognitive-communication therapy proposed by Sheila MacDonald in an OCF-18/treatment plan (“plan”) submitted January 10, 2022?
iii. Is the applicant entitled to $6,240.00 for vision therapy services proposed by Dr. Patrick Quaid in a plan submitted March 2, 2022?
iv. Is the applicant entitled to $2,466.64 for physiotherapy services proposed by Sumithra Indermohan in a plan submitted May 31, 2022?
v. Is the applicant entitled to psychological services proposed by Dr. Lesley Miller as follows:
a. $5,900.46 in a plan submitted October 19, 2022?
b. $598.44 (approved but not paid) in a plan submitted September 2, 2021?
vi. Is the applicant entitled to $619.95 (approved but not paid) for occupational therapy services proposed by Christine Farrell in a plan submitted November 18, 2021?
vii. Is the applicant entitled to $7,533.59 for speech language therapy, physiotherapy, neurology, pelvic health, and dentistry submitted in OCF-6 submitted July 8, 2022?
viii. Is the applicant entitled to $1,536.64 for internet services proposed by Leanne Farrell in a plan and schedule of expenses submitted November 23, 2021?
ix. Is the applicant entitled to transportation submitted as follows:
a. $146.40 in a schedule of expenses submitted November 25, 2021?
b. $489.64 in a schedule of expenses submitted September 2, 2022?
c. $892.32 in a schedule of expenses submitted December 22, 2022?
d. $723.28 in a schedule of expenses submitted April 20, 2023?
e. $137.50 in a schedule of expenses submitted August 15, 2023?
x. Is the respondent liable to pay costs to the applicant?
xi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xii. Is the applicant entitled to interest on any overdue payment of benefits?
3Withdrawn Issue: On the third day of the hearing the applicant withdrew catastrophic impairment under Criterion 4.
RESULT
4The applicant is not catastrophically impaired under Criterion 8.
5Having found that the applicant is not catastrophically impaired under Criterion 8, and the non-catastrophic limits of $65,000.00 have been exhausted, the applicant is not entitled to any of the disputed treatment plans.
6The applicant is not entitled to reimbursement of expenses.
7As no benefits are owing, interest is not owing.
8The applicant is not entitled to an award.
9The applicant is not entitled to costs.
PROCEDURAL ISSUES
Applicant Request for Exclusion of Respondent’s Expert Reports and Testimony
10On November 21, 2024, the applicant filed a Notice of Motion with the Tribunal. The applicant sought to have the reports and testimony of Dr. Jwely, Dr. Mandel, Dr. Mustafa, and Ali Habash deemed inadmissible, as none of them had signed the Acknowledgement of Expert’s Duty forms, and, in the case of Dr. Mandel, his report was not disclosed to the Tribunal and not included in the respondent’s hearing brief. They further argue that Dr. Jwely did not provide the raw test data and clinical notes and records (“CNRs”) that the applicant requested on December 5, 2023, by way of letter. They submit that, without the CNRs of the various assessors, they will not be able to conduct a proper cross-examination if allowed to testify, and that the respondent has failed in their obligations which would cause prejudice to the applicant.
11The respondent argues that the Acknowledgement of Expert’s Duty forms had been signed by Dr. Jwely, Dr. Mustafa, and Mr. Habash, however, in the case of Dr. Mandel, it was an oversight. The respondent also noted that the applicant has had Dr. Mandel’s report since sometime in 2020. The respondent blames poor photocopying for the quality of the forms; however, they submit that they are in the respondent’s document brief. They argue that the medical records from third parties requires an authorization from the applicant.
12The respondent further argues that the applicant has a conspirator theory of the respondent, and that they do not have any CNRs from the assessors that have not been disclosed to the applicant. The respondent argues that they have made best efforts to obtain those records, and they have provided the applicant with the requests sent to the third-party assessors to produce those records.
13Further, the respondent argues that raw test data from the IE assessors was not requested by the applicant at the case conference and not listed as a document or thing to be produced by the applicant nor was it ordered producible by the Adjudicator. The respondent argues that the prejudice to them would far outweigh the prejudice to the applicant if I do not allow their expert witnesses to testify and rely on their reports.
14In the case of Dr. Mandel, I find that the respondent did not produce the report in their document brief, and, as Dr. Mandel was not being called as a witness, the prejudice to the applicant would outweigh the prejudice to the respondent if the brief was admitted into evidence. Further, as Dr. Mandel was not being called to testify, the applicant would have no means of cross-examining Dr. Mandel. As such, I did not allow for the report of Dr. Mandel to be relied upon by the respondent.
15In the case of Dr. Mustafa, Dr. Jwely and Mr. Habash, I find that the respondent produced the Acknowledgement of Expert’s Duty forms to the applicant, in accordance with Rule 10.2 of the Licence Appeal Tribunal Rules, 2023 (“LAT Rules”). However, poor photocopying does not make them completely legible. I asked the respondent to resubmit the forms to the Tribunal and to the applicant prior to their testimony, and I received confirmation from the applicant that the respondent had reproduced the forms.
16I also find that the respondent can rely on the reports and testimony of their IE assessors as listed above, as their reports had been submitted to the applicant in accordance with the Case Conference Report and Order. Similarly, I find that no raw test data had been requested by the applicant at the case conference, therefore I find that the respondent did not breach the requirements of the Case Conference Report and Order in this regard and as such the raw test data did not need to be disclosed to the applicant.
17I further find that, by excluding the reports and testimony of the IE assessors, the prejudice to the respondent would far exceed the prejudice to the applicant, as the applicant has an opportunity to cross examine each of the assessors. For these reasons, except for Dr. Mandel above, I allowed the testimony and reports of the assessors.
Respondent's Challenge of the Applicant’s Expert Witnesses
18On November 21, 2024, the respondent notified the applicant and the Tribunal that they would be challenging the qualifications, findings, conclusions, and reports of the applicant’s witnesses: Sheila MacDonald, Dr. Vaidyanath, Dr. Miller, Dr. Basile and Christine Farrell. The respondent submits that these assessors mischaracterized findings, provided opinion beyond the scope of their expertise, lacked impartiality, breached their duty as agents, improperly made conclusions and gave opinions inconsistent with the facts, records and incomplete testing.
19The respondent further submits that the applicant’s witnesses relied upon incomplete, inappropriate, or unaccepted testing measures; conducted, interpreted, and relied upon testing which they were not qualified to administer; and incorrectly interpreted testing findings and records.
20The applicant argues that these challenges were not made in accordance with the LAT Rules, as the challenges were filed after the time permitted by the Rules and, as such, I should assign full weight to their testimony and reports.
21As the respondent’s intent to challenge the applicant’s expert witness was submitted 18 days prior to the commencement of the hearing, I find that the respondent did not challenge the expert witnesses within 21 days of the start of the hearing, in accordance with Rule 10.4. Further, the respondent is not in compliance with Rule 9.4.4 which is a provision that considers a witness, or a document not disclosed or exchanged prior to 21 days of the hearing, to be late filed. As such, I allowed the testimony and reports of the above witnesses. In the case of Dr. Basile, he was not called to testify, however, his neurological report was admitted into evidence by the applicant.
Exclusion Of the Respondent’s Surveillance Report
22On November 20, 2024, the applicant filed a Notice of Motion with the Tribunal. This motion was filed to exclude the surveillance evidence report produced by ISN Inc. dated August 5, 2021.
23At the outset of the hearing, the respondent withdrew the evidence and report from ISN Inc. Therefore, no ruling was required by the Tribunal.
Hearing Length
24This matter was scheduled for eight hearing days. When I considered the witness lists and the issues in dispute (and on consent of the parties), I allowed for six hearing days for this matter.
Summons of the Adjuster
25The applicant requested a summons for Melody Ashby, the Adjuster in this matter, for the purposes of testifying in relation to the denials of the issues in dispute, which they assert would also support their case for a special award. The applicant served the summons to the location that was on the respondent’s letterhead. They were under the assumption that the Adjuster worked out of that location.
26On the second last day of the hearing, the respondent notified me that the Adjuster was not properly served the summons, as the location of the letterhead is not the Adjuster’s work location, and, therefore, it was not served upon her properly. As such, she would not be able to testify.
27As the summons must be issued directly to the individual being summoned in accordance with s. 12(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, the Tribunal has no authority to make the witness available for testimony where the summons is not properly served. I advised the applicant that I would allow for extra time in their closing remarks to speak to the treatment plans in dispute, as the Adjuster’s log notes had been produced to the applicant in accordance with the case conference report and order. The applicant was agreeable and made submission regarding the treatment plans in dispute during closing remarks.
ANALYSIS
Has the applicant sustained a catastrophic impairment under Criterion 8?
28I find that the applicant has not proven on a balance of probabilities that she is catastrophically impaired under Criterion 8 as a result of the accident.
29To 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 she 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.
30Criterion 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)
31The applicant submits that she has a class 4 marked impairment in the domains of activities of daily living, social function, concentration, persistence, pace, and adaptation, caused by mental disorders that she sustained in the motor vehicle accident.
32In her report dated July 12, 2022, Dr. Miller, the applicant’s treating neuropsychologist and author of her catastrophic impairment report, , diagnosed the applicant with other specified trauma and stressor related disorder (persistent complex bereavement disorder) related to the death of her mother (post motor vehicle collision), Major depressive disorder with anxious distress, single episode, moderate (post MVC), persistent somatic symptom disorder, persistent depressive disorder (pre-existing).
33In his report dated January 18, 2024, Dr. Jwely, the respondent’s psychiatric assessor diagnosed the applicant with the DSM-5-TR criteria for major depressive disorder, mild to moderate, general anxiety disorder, mild to moderate and chronic somatic pain disorder.
34The respondent submits that the applicant has a class 4 marked impairment in adaptation, and a class 3 moderate impairment in social function (“SF”), concentration, persistence, pace (“CPP”), and activities of daily living (“ADL”).
35As both parties agree that the applicant has sustained a class 4 marked impairment in the adaptation domain, my review of the evidence will focus on whether the applicant suffers from a marked impairment in the SF, CPP, and ADL domains.
Pre-existing Medical Conditions
36The applicant is a 49-year-old woman who has been unable to be employed since the age of eighteen due to irritable bowel syndrome (“IBS”) and the depression associated with this condition. She received Ontario Works (“OW”) since the age of eighteen, until successfully appealing her denial of Ontario Disability Support Program (“ODSP”) payments from the Social Benefits Tribunal, decision dated July 12, 2023, with the assistance of Dr. Miller.
37Further, the applicant lost some close family members approximately two years pre-accident, including her mother, who she had resided with until her death in January 2020, approximately sixteen months post-accident. The applicant inherited her grandmother’s home and the home she shared with her mother where the applicant currently resides.
38Dr. Miller noted that the applicant was unemployed for many years pre-accident due to interference caused by irritable bowel syndrome and chronic depression. She further noted that pre-accident the applicant also suffered from mild osteoporosis in the left hip, uterine fibroid leading to irregular menses and a collapsing cyst over the left ovary.
39Dr. Miller in her cross examination testified that the accident was in part a material presentation, along with the applicant’s financial strain, IBS, and bereavement disorder. When asked to clarify what a partial contributor or a material presentation represented, she testified that it was equal to or more than 51% a contributing factor.
40Dr. Jwely opined that the applicant’s documented pre-existing conditions prior to the accident are longstanding depression and complex post traumatic stress disorders that suggest a baseline of psychiatric vulnerability. Further, that her pre-existing psychiatric status may be more related to a continuation or progression of the same rather than a direct causality. He opines that the absence of new psychiatric symptoms emerging immediately post-accident and the nature of her chronic somatic complaints are consistent with the applicant’s pattern of pre-existing and ongoing gastrointestinal issues.
41Dr. Jwely testified that, from a mental health perspective, the accident was a low category factor of the applicant’s impairments and that the applicant’s background symptomology, and the loss of her mother are the most difficult part of her life.
42It is important to note that the applicant was diagnosed with complex post traumatic stress disorder pre-accident by her social worker Ms. Quinn. However, Dr. Miller and Dr. Jwely agree that a social worker does not have the medical expertise to diagnose complex post traumatic stress disorder. Therefore, for the purposes of this decision I will not accept that the applicant suffered from complex post traumatic stress disorder as a pre-existing condition because a social worker does not the medical expertise to diagnose complex post traumatic stress disorder.
43Both Dr. Miller and Dr. Jwely did not consider causation in their ratings in the four domains, as their evidence shows that there is no mechanism for causation in the Guides.
44Therefore, as both Dr. Miller and Dr. Jwely agree that the applicant’s long standing medical condition of IBS and depression are pre-existing, I will consider the evidence of the applicant’s pre-accident and post-accident function in the four domains and the effect if any that her pre-existing conditions are attributable to her post-accident level of function.
Activities of Daily Living
45I find that the applicant has a class 3 moderate impairment as a result of the accident because her impairment levels are compatible with some, but not all useful function.
46The Guides specify that activities of daily living functioning incudes self-care, personal hygiene, communication, ambulation, travel, sexual functioning, sleep, and social and recreational activities. Any limitations in these activities should be related to the mental disorder. In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction. What is assessed is not the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
47In her report, Dr. Miller concluded that overall, regarding activities of daily living, the applicant’s mental and behavioral impairments severely impede useful functioning. Dr. Miller identified the areas of impairments that interfere with the applicant’s functioning as self-care, personal hygiene, meal preparation, household maintenance, community integration sleep, sexual function, driving, leisure pursuits, and caregiving. In this regard, Dr. Miller relies on Ms. Farrell’s situational assessment report, dated July 2022, and Dr. Vaidyanath’s physiatry report, dated October 2021.
48Dr. Miller highlights features of Ms. Farrell’s situational assessment report regarding ADL which show that the applicant has difficulty maintaining an effective self-care routine when mood is low, physical symptoms are elevated, or when overwhelmed. She opines that the applicant is unable to physically manage most housekeeping tasks or engage in outdoor maintenance and home repair. Further, the report notes that the applicant’s travel is limited due to limited sitting tolerance and anxiety and that she requires rest breaks for longer drives and avoids driving in snowy conditions and traffic.
49Further, in her report Dr. Miller highlights some notable findings in relation to the applicant’s self-care, personal hygiene, and household activities from Dr. Vaidyanath’s physiatry report, namely that the applicant does do some cooking, but is struggling with this and has left the stove and the oven on. She had attentional difficulties compounded by hearing difficulties and did not hear a timer she had set. She has been unable to keep up with her property maintenance and her indoor housework. She cannot tolerate the smell of cleaning fluids. Even doing the laundry is difficult due to her hypersomnia. From a physical aspect, bending over and scrubbing aggravates her symptoms.
50Dr. Miller further highlights Dr. Vaidyanath’s report in relation to the applicant’s transportation and financial management. In this regard Dr. Vaidyanath reports that the applicant is managing her money independently, although she forgets to pay the bills and she avoids driving after vision therapy and physiotherapy because she feels anxious as a driver, but it is even worse as a passenger, and the parallax error makes her feel as though cars are going to come and hit her.
51Since the accident, the applicant testified that she is no longer able to maintain her gardens, hedges or cut the grass and remove the snow. She no longer volunteers, cleans her house and baths once per month. She testified that all home maintenance and meal preparations are done by her family friend, Mr. Ayehart. She submits that her somatic symptoms, lack of sleep, headaches, dizziness, depression, cognitive challenges, and heightened sense of smell, due to post concussive symptoms, have left her unable to engage in her activities of daily living.
52The respondent argues that the applicant has suffered from long-standing depression attributable to her long-standing IBS, a condition that existed before the subject accident which rendered her unable to work since she was 18 years old. The respondent argues that the applicant’s IBS is the cause of her depression, along with the loss of many close family members pre-accident and the death of her mother post-accident.
53The respondent also argues that the applicant has been on OW since the age of 18, due to IBS and depression, and that the applicant is currently receiving ODSP payments while inheriting and owning two homes, one from her grandmother and the other, a home she resides in that she inherited after the passing of her mother. It argues that Dr. Miller assisted in the successful appeal of the applicant’s original denial of her ODSP application and therefore Dr. Miller lacks impartiality in assessing catastrophic impairment for the applicant.
54The respondent further argues that the applicant had difficulty sleeping prior to the accident, and that the applicant can bath, drive, and clean her home. Further, the applicant no longer volunteers because of the threat of lawsuits from a member of the Grey Bruce Parks Committee which predate the accident, and that the applicant became unable to maintain her property due to a physical leg injury also predating the accident.
55As already discussed, the applicant’s IBS and depression from her condition predate the accident and this is corroborated by the CNRs of Dr. Walley, the applicant’s family doctor for approximately 30 years, and the CNRs of Alicia Quinn, the applicant’s long time social worker.
56The applicant testified that pre-accident she was a functional, well put together woman that was independent in her personal hygiene and daily activities. She testified that she maintained a large property, full of flower beds, herb and vegetable gardens, hedges, and fruit trees. She cut the grass and removed the snow from the two properties that she owns. She was able to make complex meals from the foods she planted, maintained, and harvested on her own property. She testified that her herb and vegetable gardens were not only a source of pride, but also necessary for her to maintain a healthy diet to help control her IBS. She testified that she could perform electrical tasks, lay flooring, load a lawn tractor, and transport it to and from her other property, as well as remove and change the lawn cutting blades and replace them with a snow blower attachment in preparation for winter.
57She further testified that she was an active member of the community and volunteered as the chair of Grey Parks Committee. She spent time organizing fundraisers and judging flower contests. She was also an active member in horticultural societies, making sure that other volunteers were included in the decision-making process. She often made meals for fundraising events, prepared meeting agendas, and she would make the table bouquets with flowers from her home garden.
58I agree with the respondent that the applicant’s deteriorating relationships with the Grey Parks community which acted as a social and recreational activity that the applicant cherished had begun before the accident and that the abandonment of her gardens and property had also begun prior to the subject accident for the following reasons.
59On July 21, 2017, in a follow up appointment with Ms. Quinn, the applicant continued to discuss people in the West Grey Park’s Community sabotaging her and others, and she contemplated starting another branch to move forward. Then, on August 2, 2017, the applicant stated her leg was getting worse and she was on crutches. On August 11, 2017, the applicant complained of an X-ray technician being abusive and contemplated reporting her. On May 11, 2018, the applicant again complained about a friend from the horticultural society having a heart attack in what the applicant believes to be from stress related to recent horticultural meetings.
60I find on a balance of probabilities that the applicant’s social and recreational involvement in relation to her gardens and her deteriorating involvement in the Grey Parks horticultural community are not as a direct result of the accident and are not completely from a mental behavioral perspective as the evidence shows the applicants condition is further complicated by physical impairments in 2017 and 2018. Therefore, the applicant has failed in her onus to prove that as a result of the accident her impairment levels significantly impede useful function.
61It is important to note that both Dr Miller and Dr. Jwely agree that an occupational therapy report and assessment is extremely important and critical to their findings. For the purposes of this decision, I have placed less weight on the evidence of Ms. Farrell, because Ms. Farrell only conducted a situational assessment and not an in-home assessment, as the respondent has. It is difficult to place much weight on Ms. Farrell’s reports, as her findings are based mainly on self reports from the applicant and because the evidence shows that Ms. Farrell has never visited or assessed the applicant in her home.
62I find it is unclear how Ms. Farrell opines that the applicant shows difficulty maintaining an effective self care routine when mood is low, physical symptoms are elevated or when overwhelmed. I presume Ms. Farrell’s opinions are based on the applicant’s self report because Ms. Farrell in her report notes in terms of the applicant’s self care and personal hygiene, the applicant sits to shower.
63Ms. Farrell also noted that the applicant is slow to wash and brush her hair due to interference by pain, and she sometimes requires assistance with dressing. She then sometimes requires assistance to complete most household activities, such as meal prep, housekeeping, and home maintenance, due to interference by emotional, cognitive, and physical symptoms. I disagree for the following reasons.
64Mr. Ayehart’s testimony does not align with the applicant’s claim that there is a constant need for his help in relation to personal hygiene. Mr. Ayehart’s testimony was that one time, in the approximately 7 years he has been helping the family, did he have to help the applicant out of the shower. It is unclear to me if this one time was pre or post accident, however even if it was post- accident, needing assistance one time is not indicative of a class 4 marked impairment because the impairment level does not significantly impede useful functioning.
65In addition, Dr. Miller met with the applicant approximately six to twelve times as her treating neuropsychologist, and she reported the applicant as presenting in a polite and well-groomed manner. This is documented in the multiple visits with Dr. Miller. There is no evidence to the contrary from Ms. Farrell, her family doctor, Dr. Jwely, Mr. Habash, her social worker or anyone in a professional environment that noted poor hygiene, her inability to shower, bath or toilet herself.
66Finally, the applicant’s neurological assessor, Dr. Basile, also corroborates this point in his report. Specifically, he noted in his assessment of the applicant on May 12, 2022, that the applicant was alert, cooperative and well groomed. He also found the applicant had “a normal conversation and was grossly cognitively intact.”
67Dr. Basile’s observations of the applicant are in line with my observations of the applicant throughout her examination in chief and cross examination. She understood questions, did not have difficulty hearing, followed the screen, answered questions, and she even conveyed to me her disagreements and disregard for the respondent’s medical assessors, as she thought their assessments were not as fulsome as her own assessors. I placed more weight on the evidence of Dr. Jwely that a class 4 marked impairment would require someone to push a person to go to the washroom, sit next to them and tell them its time to perform the next task; this is not the case for the applicant, accordingly based on the evidence before me I find that the applicant is capable of initiating and participating independently in her personal hygiene and her communication as they relate to her activities of daily living.
68The applicant submits that she suffers from poor sleep and sleeps on a couch receiving only a few hours of sleep nightly due to headaches. She submits that she has difficulty driving and forgets to pay her bills. She testified that if not for the assistance of Mr. Ayehart she would not be able to cope.
69The applicant testified that she feels less anxiety as a driver than she does as a passenger. Mr. Ayehart testified that he drives the applicant most places, as she does not feel comfortable driving. However, Dr. Vaidanyath in her report dated October 2021 which included a highlight in Dr. Miller’s report, describes the applicant as an anxious driver, but her anxiety is worse as a passenger.
70Although being faced with conflicting evidence in this regard, I am confident that the applicant has been able to tend to her responsibilities of daily living either by scheduling Mr. Ayehart or by driving herself because the evidence shows that the applicant does drive. This is not indicative of a class 4 marked impairment, as the assessors and her treating medical professionals have not noted concerns of the applicant as being tardy or missing appointments, that were scheduled far in advance of her appointment dates and as such I find that the applicant’s ability to drive and schedule tasks to be compatible with some but not all useful functioning.
71The applicant testified that she has poor sleep and often sleeps in a chair or couch as a result of the accident, the evidence shows that this is not inconsistent with her pre-accident sleep disturbances as there are pre-existing issues surrounding the applicant’s sleep. This is evidenced in the applicant’s pre-accident medical records. Accordingly, I find that the applicant’s poor sleep is not as a result of the accident but rather a pre-existing condition. The applicant has failed in her onus to prove that her pre and post accident sleep related issues are directly related to the subject accident.
72The applicant’s life has not been the same post-accident, as she has become reliant on the help of her family friend, Mr. Ayehart, for yard work, cooking, driving, and laundry. However, the applicant can be independent and manage, with intermittent support, many aspects of her activities of daily living. Therefore, on balance I find that the applicant has not demonstrated that as a result of the accident that she suffers from impairments that severely impede useful functioning in her activities of daily living.
73Accordingly, I find that the applicant on a balance of probabilities has a class 3 moderate impairment as a result of the accident in the domain of activities of daily living.
Concentration, Persistence and Pace
74I find that the applicant has a class 3 moderate impairment in the domain of concentration, persistence, and pace as a result of the accident because her impairment levels are compatible with some, but not all useful functioning.
75The Guides specify that the factors to be considered under this domain are the concentration, persistence, and pace needed to perform many activities of daily living, including task completion. Task completion refers to the ability to sustain focused attention long enough to complete tasks commonly found in activities of daily living to sustain focused attention long enough to complete tasks commonly found in activities of daily living or at work. To consider strength and weaknesses in mental concentration, there is a consideration of frequency of errors, the time it takes to complete the task, and the extent to which assistance is required to complete the tasks.
76Dr. Miller opines that overall, the applicant’s impairments of post traumatic stress symptoms, mood issues, physical and cognitive limitations and associated reductions in mental stamina significantly impede the applicant’s useful functioning in concentration, persistence, and pace. She further opines that the areas where mental and behavioral impairments interfere with functioning include the applicant’s ability to persist with tasks in her personal life when faced with challenges. To this end, Dr. Miller relies on her Neuropsychological report dated January 2022, a cognitive communication report completed by Sheila MacDonald, speech language pathologist, and a situational assessment report dated July 2022 completed by Ms. Farrell, occupational therapist.
77Dr. Miller’s neuropsychological report indicates that the applicant has demonstrated a few discrete areas of cognitive weakness including auditory attention span, visual scanning, mental processing speed and modest weaknesses of sustained attention, working memory, vocabulary knowledge and thinking abstractly with verbal information which affect her daily life in the domain of CPP.
78Dr. Miller highlights Sheila MacDonald’s cognitive communication report which indicated the applicant as having “reduced speed of information processing particularly in complex tasks” and “impairments in executive functioning including difficulties with initiation, working memory, task monitoring, stamina and efficiency on complex tasks, and self regulation of attention depending on the complexity of the context (e.g. background noise, multiple speaker)”.
79Dr. Miller further highlights Ms. Farrell’s situational assessment regarding the applicant’s day to day life where she opines that “In completing everyday household tasks, throughout this assessment and in my OT intervention with Ms. Black, she has demonstrated substantial difficulty focusing on tasks and maintaining concentration and is vulnerable to visual and auditory stimulation”.
80The respondent argues that the applicant is independent in her decision making, and that she can start and finish tasks at a stable pace. It argues that the applicant schedules and attends medical appointments and arrives on time, and even seeks out medical specialists that align with her own medical beliefs, and that she is independent in her research in this regard.
81As outlined above, the applicant is the owner of two homes, and although she is, in part, unable to maintain some of the physical aspects associated with home ownership, I was not pointed to evidence that she is unable to maintain the non-physical tasks associated with home ownership, other than her home telephone bills having not being paid.
82For example, I was not pointed to evidence that she does not manage her finances independently, pay her utility bills, property taxes or any other clerical responsibilities associated with home ownership. Dr. Miller states that the applicant is “independent in managing her finances but has been late in paying some bills due to memory issues”. Dr. Vaidyanath also states that the applicant “is managing her money independently, although she forgets to pay bills at times”. On balance, I find this is not indicative of a class 4 marked impairment because the applicant has largely maintained useful functioning by managing her own day to day finances.
83Further the applicant has been and continues to be a strong advocate in her medical journey. She continually seeks out medical professionals and alternative methods of medicine to help her cope. The level of persistence in seeking out medical professionals is consistent with the applicant’s pre-accident level of function, and I find it is not supportive of a class 4 marked impairment because the applicant’s impairment levels are compatible with some but not all useful functioning and are consistent with her pre-accident function.
84This is evidenced by her family doctor’s notes, in which her doctor asks the applicant to let him know which facility she would like him to refer her to. This is corroborated by Dr. Miller, as she testified that the applicant is averse to OHIP services in her area as she does not trust their competencies. This is further evidenced by Sheila MacDonald’s testimony that the applicant had self-referred herself to Ms. MacDonald through her family doctor.
85Further, in May 2018, the applicant discussed an unpleasant experience with an orthopaedic surgeon and shares with Ms. Quinn that it was a “waste of time” and that she will look some up and discuss with Dr. Walley. This continues following her mother’s death, as she discusses the terrible experience with doctors and care people that were looking after her mother prior to her death and contemplates taking on and investigating the system. The level of persistence in seeking out medical professionals is consistent with the applicant’s pre-accident level of function, and I find it is not supportive of a class 4 marked impairment attributable to the accident.
86I placed more weight on the respondent’s evidence, as Dr. Jwely’s report was inclusive of both an occupational situational assessment and an occupational in-home assessment conducted by Mr. Habash on the same day.
87Mr. Habash noted that the applicant displayed good attention and concentration during the lengthy interview, despite her apparent physical discomfort. He noted that she presented as being well-groomed and appropriately dressed, with her hair tied back in a bun and that there were no signs of personal neglect.
88Following the lengthy interview lasting approximately one hour and forty-five minutes, Mr. Habash asked the applicant to put together a thorough meal plan and grocery list. They then went to a local Walmart, where the applicant was able to gather items from the list independently.
89Mr. Habash met the applicant at the Walmart, as the applicant did not want to drive on her own and instead relied on Mr. Ayehart to drive her. Following the Walmart outing, the applicant agreed to attempt several housekeeping tasks, such as loading the top and bottom of her dishwasher, which Mr. Habash noted she did with some observed stiffness to her neck and back, however, the task was completed slowly and cautiously and correctly.
90Mr. Habash then asked the applicant to mop the tiled area of her kitchen floor, which he noted she did, however, she needed to take a break outdoors as she struggled with secondary nausea related to the scent of the cleaning agent she was using. The final task was to scrub her tub, which she managed to complete albeit with discomfort and pain.
91Mr. Habash noted that the applicant’s main functional issue was repetitive bending. This to me is not indicative of a class 4 marked impairment in CPP as the applicant’s impairments on balance do not significantly impede her useful functioning because the applicant was able to persist and complete the assigned task throughout a lengthy occupational assessment both in and out of the home.
92I find on a balance of probabilities that the applicant has a class 3 moderate impairment in the domain of concentration, persistence, and pace as a result of the accident, because her impairment levels are compatible with some, but not all useful functioning.
Social Functioning
93I find that the applicant has a class 3 moderate impairment in social functioning as a result of the accident because her impairment levels are compatible with some, but not all useful functioning all function.
94The Guides specify that social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords, or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Strengths in social functioning may be documented by an individual’s ability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities. Cooperative behaviour, consideration for others, awareness of others’ sensitivities, and social maturity also need to be considered.
95the applicant’s position is that her impairment in social function has significantly impeded her useful functioning. Dr. Miller identifies areas where the applicant’s mental and behavioral impairments have the greatest negative impact on the applicant’s social functioning pertaining to initiating and maintaining regular contact with members of the community, extended family, communicating effectively, and actively participating in groups.
96The applicant submits that, despite her pre-existing IBS, she was an active member of the community, took pleasure in her volunteer activities, and she had many friends and family that she advocated for.
97She submits that she was always looking to help others, learn German from her family friends, Mr., and Mrs. Rankin, and that she cannot initiate or maintain or actively participate in group activities post-accident. She further submits that she used to play the fiddle and the piano, and she is no longer able to play either. She further testified that she spends much of her day alone at home sitting in a chair and staring out the window.
98The respondent argues that the applicant’s relationships with her community-based volunteer groups had deteriorated pre-accident, and that the applicant did not have a highly active social life prior to the accident. It further argues that the applicant maintains some level of social interaction and demonstrates the capacity to communicate effectively.
99It is apparent to me that the applicant’s main source of a social life revolved around her volunteer work with the Grey Parks Committee and family relationships. However, as already outlined above, I find the applicant had begun to distance herself from her horticultural involvement with the Grey Parks Committee prior to the accident, due to disagreements and possibly from harassment from another member. Her response to this pre-accident was to avoid these people which is consistent with her post-accident response as the applicant has maintained distance from the Grey Parks Committee and Horticultural society post-accident. This to me is not indicative of someone with a class 4 marked impairment, but rather I find it is the behaviour of a person with the mental capacity and social maturity to understand that escalation would be unavoidable if she were to continue.
100Furthermore, the applicant did not have many close friends prior to the accident, other than her long-standing friend Mr. Ayehart, and a somewhat social relationship with some friends of her mother, Mr., and Mrs. Rankin, who had been teaching her German prior to the accident. Although Mrs. Rankin visited the applicant after the accident, the applicant complained that she could not tolerate Mrs. Rankin’s perfume as she has a heightened sense of smell since the accident, so the applicant did not open the door to allow the Rankins to visit. Further, the applicant testified that she did not remember any of the German that was taught to her because of her poor memory after the accident.
101Outside of these relationships, it is evident that her family was her support group. Unfortunately, I find this support group had begun to diminish pre-accident with the death of her uncle, grandmother, and other close family members. The applicant’s testimony underscored the fact that these people had passed away prior to the accident, and, with the death of her mother, she had no other family members remaining and whatever few she had have moved away.
102The only family remaining that I was pointed to are two female cousins which are referred to as nieces in various clinical notes, although the applicant clarified that they were her mother’s nieces, presumably making them her cousins. In any event, the applicant was encouraged to set boundaries by her social worker Ms. Quinn in a clinical note dated April 13, 2017, over one year pre-accident. This was because the applicant could not deal with the drama that these individuals bring to her life.
103I am not pointed to the applicant ever having a romantic relationship either pre- or post-accident. I rely on the subjective reporting from the applicant and Mr. Ayehart that the applicant was a social butterfly prior to the accident, however I am not pointed to any other evidence of romantic relationships or the applicant being a social butterfly.
104Mr. Ayehart is the applicant’s main longstanding friend/caregiver that she has had prior to the death of the applicant’s mother. This relationship continues today. I find this evidence does not support the applicant’s position that she has sustained a class 4 marked impairment in her social function because she has maintained a longstanding relationship with Mr. Ayehart.
105Furthermore, Mr. Ayehart testified that he often will bring the applicant to visit his grandchildren and spend hours with them which gives the applicant great pleasure and satisfaction. This to me is not indicative of a class 4 marked impairment because Dr. Miller in her report indicates that the applicant can provide childcare independently for two to three hours which is consistent with Mr. Ayehart’s evidence and therefore I find that the applicants impairments are compatible with some but not all useful function.
106In addition, the applicant continues to reside in her own home for which she has resided in for most of her adult life. I am not pointed to any inability on the applicant’s part to have a good or bad relationship with her neighbours, or other members outside of her community other than those already mentioned above.
107This is underscored in Mr. Habash’s situational assessment, where the applicant demonstrated appropriateness in her interactions with store clerks, as the applicant was tasked with finding certain items at a Walmart store during this assessment.
108For example, in his report and testimony Mr. Habash noted that the applicant faced difficulty finding an item she was tasked to find, and she sought out the assistance from a store clerk. Mr. Habash testified that this is appropriate behavior under the circumstance, and I agree, further suggesting that the applicant’s impairments are compatible with some but not all useful functioning.
109Although I do not discount Dr. Miller’s opinion that the applicant has difficulties being part of a team and is limited by her combination of withdrawal and avoidance on the one hand, and proneness to angry outbursts or tearfulness on the other, I place more weight on the evidence of Dr. Jwely, because Dr. Jwely’s evidence is more in line with the totality of the medical evidence before me.
110Accordingly, I find that the applicant has a class 3 moderate impairment in social functioning as a result of the accident because her impairment levels are compatible with some, but not all useful functioning.
111Having found that the applicant does not have a class 4 marked impairment in three of the four domains or an extreme impairment class 5 in one of the four domains as a result of the accident, the applicant has failed to meet her onus in demonstrating a catastrophic impairment.
112Accordingly, I find on a balance of probabilities that the applicant is not catastrophically impaired in accordance with the Schedule under Criterion 8.
Were the denials of the treatment plans done in accordance with section 38 of the Schedule?
113In this case, the applicant has exhausted the non-catastrophic limits of $65,000.00 and therefore there is no further funding available for medical and rehabilitation benefits in accordance with the Schedule.
114However, in his closing submissions, the applicant’s counsel submits that the treatment plans for occupational therapy, psychological services, physiotherapy speech language and vision therapy services are deemed to be reasonable and necessary by the treatment provider and that the denials by the respondent were not in accordance with s.38(8) and s.38(11) of the Schedule.
115To 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.
116Section 38 of the Schedule provides a provision for claims of medical and rehabilitation benefits and for approval of assessments. Section 38(8) reads that within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.
117The respondent argues that the applicant has exhausted her non-catastrophic limits in accordance with the Schedule and that all the denials of the treatment plans in dispute were done in accordance with s.38 of the Schedule.
Occupational Therapy
118On November 18, 2021, Christine Farrell, occupational therapist, submitted an OCF-18 in the amount of $3,720.53. The applicant alleges that $619.95 of this treatment plan has not been paid by the respondent.
119I was not pointed to a denial letter from the applicant or the respondent for this treatment plan.
120As a denial letter was not submitted into evidence by either party and the non-catastrophic limits have been exhausted the applicant has failed in her onus to prove entitlement under s.38 of the Schedule because I am unable to determine if the respondent’s denial letter was in accordance with the Schedule.
121The applicant is not entitled to the remaining $619.95 for the disputed occupational therapy treatment plan.
Physiotherapy Services
122On May 31, 2022, the applicant submitted an OCF-18 completed by Sumithra Indermohan, physiotherapist, in the amount of $2,466.64 for physiotherapy services. The goals of the treatment plan were to increase range of motion, pain reduction, increase strength, with the functional goals set for the applicant to return to activities of normal living and return to pre-accident work activities.
123Via letter dated June 8, 2022, the respondent denied the OCF-18 for physiotherapy on the basis that it had approved medical rehabilitation and attendant care benefits in the amount of $65,000.00, of which the insurer had paid $60,653.67 as of June 8, 2022. It further advised the applicant that the policy limits of catastrophic impairment are $1,000,000.00, and, if the applicant would like to pursue that, she will require an OCF-19. The letter further copied and pasted sections from the Schedule to provide guidance of the various criteria under the Schedule for catastrophic impairment.
124I find that the respondent did comply with s.38 of the Schedule in their denial of the OCF-18, as they responded with medical and all the other reasons for their denial. Further I agree with the respondent because the applicant has failed to prove entitlement to catastrophic impairment and accordingly, I find that the applicant is not entitled to the disputed physiotherapy plan in the amount of $2,466.64.
Vision Therapy Treatment Plan
125On March 2, 2022, the applicant submitted an OCF-18 for $6,240.00 for vision therapy services proposed by Dr. Patrick Quaid, optometrist.
126On March 9, 2022, the respondent denied this OCF-18 on the basis that it approved medical, rehabilitation and attendant care benefits in the amount of $65,000.00, for which it had issued payment to date in the amount of $57,608.36. Therefore, the respondent denied the treatment plan on that basis.
127Although the proposed goods section of the OCF-18 is not clear due to poor photocopying or scanning, I find the respondent responded to the applicant with valid medical or other reasons and advised the applicant her funding was exhausted under the non-catastrophic limits.
128Accordingly, I find that the respondent’s denial letter compliant with s.38 of the Schedule. Therefore, the applicant is not entitled to $6,240.00 for vision therapy services.
Speech Language-Cognitive Communication Therapy
129On January 10, 2022, the applicant submitted an OCF-18 in the amount of $6,774.45 for speech language-cognitive communication therapy, proposed by Sheila MacDonald, speech language pathologist.
130On January 19, 2022, the respondent denied the OCF-18 based on its review of the file and concluded that the applicant had already incurred the combined maximum medical, rehabilitation and attendant care limit of $65,000.00 available in her policy. The letter went on to explain that, in accordance with Schedule, they are unable to provide further funding. The letter went on to provide information for the potential for further medical, rehabilitation and attendant care coverage more than the $65,000.00 and explained that the applicant would be required to file an application for catastrophic impairment and the respondent attached the OCF-19 form, which is required to be completed for an application for catastrophic impairment.
131I find that the respondent denied the OCF-18 in accordance with s.38 of the Schedule, because the letter states that the applicant had exhausted the available $65,000.00 non-catastrophic funding and because the respondent provided medical and other reasons for the denial of the treatment plan.
132Therefore, the applicant is not entitled to $6,774.45 for speech language-cognitive communication therapy.
Psychological Services
133On October 19, 2022, the applicant submitted an OCF-18 in the amount of $5,900.46 completed by Dr. Miller for psychological services. The OCF-18 lists the proposed goods or services are for therapy, mental health, and addictions, planning service, brokerage service, documentation support activity, educational material, assessment, mental health and addictions and documentation, and support activity for claim form.
134On October 28, 2022, the insurer denied this treatment plan based on the applicant’s exhaustion of the $65,000.00 medical/rehabilitation/attendant care benefits and advised again that they had issued payment of the non-catastrophic limits of $65,000.00. It again cited the criteria for catastrophic impairment and the limits of those benefits to be $1,000,000.00.
135It is important to note that the OCF-18 provided as evidence from the applicant in this regard was dated January 31, 2022, completed by Dr. Miller, and, on February 9, 2022, it was partially approved by the adjuster. It is unclear to me if this is the same OCF-18 as listed above, having been submitted by the applicant on October 19, 2022, as the amount of the OCF-18 is listed as $5,900.46, which is the same amount requested in the OCF-18 provided as evidence.
136Further, I am not pointed to a second OCF-18 from Dr. Miller or to the denial letter for the second OCF-18 submitted by Dr. Miller. As such the applicant has failed in her onus to prove entitlement to the treatment plan under s.38 of the Schedule. Further, as previously noted funding for the non-catastrophic limits have been exhausted by the applicant.
137For the reasons above, I find that the applicant was given sufficient reasons for the denial of the treatment plan by the respondent on October 28, 2022, in accordance with s.38 of the Schedule. Further, I agree with the respondent as the applicant has not demonstrated entitlement to catastrophic impairment and accordingly, I find that the two treatment plans for psychological services are not owing.
Issues in Dispute as Listed Above as vii, viii, ix.
138Issue vii is in relation to $7,533.59 for speech language therapy, physiotherapy, neurology, pelvic health, and dentistry submitted on an OCF-6, submitted July 8, 2022. Issue viii is in relation to internet expenses in the amount of $1,536.64 and issue ix (a) through (e) are in relation to transportation expenses.
139The applicant’s counsel provided me with approximately 121 pages of receipts, some paid by the applicant and some not, however, the applicant deems them incurred. The applicant requests that the respondent pay the summarized items directly to the applicant.
140The respondent sent letters to the applicant on April 18, 2022, July 14, 2022, September 20, 2022, November 21, 2022, and August 25, 2023, in their denials to the above expenses. Most of these letters say that the applicant has exhausted her non-catastrophic limits of $65,000.00.
141The applicant bears the onus to demonstrate entitlement to the disputed expenses. Unfortunately, in this case there are far too many photocopied receipts that render it impossible for me to match up the issues in dispute to the items being requested to be reimbursed by the applicant. In this regard, I am unable to recognize what has and what has not been paid. however, what is abundantly clear is the parties agree that the non-catastrophic limits of $65,000.00 have been completely exhausted.
142The respondent sent a letter dated July 14, 2022, and advised the applicant that there was $2,105.32 remaining in her limits, and it asked the applicant if she wanted to use the funds for dental work as previously discussed. It then requested a written reply by July 27, 2022. Unfortunately, I was not pointed to any written correspondence in reply from the applicant, however, this does inform me that the respondent had continued to adjust the file accordingly within the $65,000.00 limits available to the applicant in accordance with the Schedule.
143On a balance of probabilities, I find that the denial letters vii, viii, ix were in accordance with s.38 of the Schedule and that the applicant has exhausted her non-catastrophic limit of $65,000.00 and as she has been found to not be catastrophically impaired entitlement to further funding is not available. Further the applicant did not make any submissions on why internet services are included as a payable benefit under the Schedule.
Interest
144Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not owing.
Award
145The applicant sought an award under s. 10 of Reg. 664. Under s. 10. As previously noted, the applicant was to rely on Melody Ashby, the adjuster on the file to support her claim to an award. As already noted, Ms. Ashby did not testify to support the applicant’s claim to an award and the applicant did not make any submissions in her closing remarks to support her claim to an award.
146Furthermore, the applicant did not provide the respondent with written submissions in accordance with the Case Conference Report and Order which states that, within 30 days of the case conference, the applicant shall provide the respondent with particulars of the award claim in writing to support her claim to an award. I find that the applicant is not entitled to an award.
COSTS
147LAT Rule 19.1 allows a party who believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, to make a request to the Tribunal for costs.
148Costs appear as an issue in dispute in the case conference report and order, however the applicant did not provide any submissions regarding costs, therefore, I find the applicant is not entitled to costs from the respondent.
ORDER
149It is ordered that:
i. The applicant is not catastrophically impaired under Criterion 8.
ii. The respondent’s denials of the disputed treatment plans are in accordance with s.38 of the Schedule; therefore, no treatments plans are owing.
iii. Since no treatments plans are owing, interest is not owing.
iv. The applicant is not entitled to payments for the expenses requested in items vii, viii and ix.
v. The applicant is not entitled to an award.
vi. The applicant is not entitled to costs.
vii. The application is dismissed.
Released: April 24, 2025
John Mazzilli
Adjudicator