Licence Appeal Tribunal File Number: 23-005876/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:
Trajan Fisca
Applicant
and
Nordic Insurance Company of Canada
Respondent
DECISION
ADJUDICATORS:
Ludmilla Jarda
Mary Henein Thorn
APPEARANCES:
For the Applicant:
Mark Stoiko, Counsel
For the Respondent:
Curtis Zizzo, Counsel
Court Reporters:
Amy Armstrong (July 15, 2024)
Beryl Capicciotti (July 16, 17 and 18, 2024)
Interpreters:
Joran Velikoja, Serbian Language (July 15, 2024)
Gordana Nikolic, Serbian Language (July 16, 2024)
Heard by Videoconference:
July 15, 16, 17, and 18, 2024
OVERVIEW
1Trajan Fisca, the applicant, was involved in two automobile accidents, on November 4, 2013 and December 2, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits for both accidents by Nordic Insurance Company of Canada, the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2At the request of the applicant, the Tribunal arranged for Serbian language interpreters to attend the hearing and to provide interpretation services to the applicant. However, the Serbian language interpreters who attended the hearing were dismissed after the applicant advised that no interpretation services were required.
3Pursuant to the Case Conference Report and Order (“CCRO”) released on January 19, 2024, the Tribunal scheduled a 5-day videoconference hearing for this matter. However, given that the parties reduced the number of witnesses being called to give oral testimony at the hearing from 10 witnesses to five witnesses, the length of the hearing was reduced to a 4-day hearing.
ISSUES
4The issues in dispute are:
Has the applicant sustained a catastrophic impairment as defined by the Schedule?
Is the applicant entitled to $11,165.60 for chiropractic services, proposed by Spinetec Health Care Solutions in a treatment plan/OCF-18 (“treatment plan”) dated July 9, 2021?
Is the applicant entitled to the following assessments, proposed by Meditecs Independent Medical Examinations:
a. $2,486.00 for a functional ability evaluation, proposed in a treatment plan submitted May 18, 2021
b. $2,486.00 for an attendant care assessment, proposed in a treatment plan submitted May 18, 2021
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
5At the start of the hearing, the applicant withdrew Issue 2 as listed in the CCRO.
RESULT
6For the reasons that follow, we find that:
The applicant is not catastrophically impaired under Criterion 8.
The applicant is not entitled to the disputed treatment plans.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
7The application is dismissed.
PROCEDURAL ISSUES
Respondent’s request to exclude expert reports
8The respondent’s request to exclude expert reports relied upon by the applicant is denied.
9At the start of the hearing, the respondent requested to exclude the following reports completed by the applicant’s experts: three occupational therapy reports dated December 24, 2018, December 15, 2020, and February 25, 2021, completed by Julian Amchislavsky, occupational therapist; a catastrophic impairment summary report dated May 28, 2021, completed by Dr. Joseph Kwok, orthopaedic surgeon; a future care cost report dated October 26, 2020, completed by Frank Kakarelis, physiotherapist; a psychiatry assessment report dated May 24, 2021, completed by Dr. Emily Gavett-Liu, physiatrist; and an orthopaedic assessment report dated January 28, 2021, completed by Dr. Kwok.
10The respondent noted that the above reports were prepared by Meditecs Health Management and IME (“Meditecs”) and Spinetec – Health Care Solutions (“Spinetec), both owned and operated by Omar Irshidat. The respondent argued that the Tribunal should not consider these reports as they contained bias opinions given that Mr. Irshidat is the spouse of Georgiana Masgras, the owner of Masgras Professional Corporation, the law firm of the applicant’s legal representative. The respondent stated that Ms. Masgras’ firm directed the applicant to be assessed by Meditecs and Spinetec, which is a clear conflict of interest. Further, the applicant did not disclose this conflict; rather, it was discovered by the respondent in preparation for the hearing.
11In support of its position, the respondent relied on recent decisions of the Superior Court of Justice, Ashrafian v. Kavarana, 2023 ONSC 6944 and Ashrafian v. Kavarana, 2024 ONSC 2420. In these decisions, the Court found that Ms. Masgras’ firm had an obligation to disclose to her clients her relationship with Meditecs and Spinetec and to confirm their consent in being assessed and treated through these companies. The respondent argued that these decisions create a positive obligation on the applicant’s legal representative to inform the parties of a conflict of interest.
12In response, the applicant submitted that the respondent’s request amounts to a high-handed collateral attack. The applicant stated that the respondent knew, or ought to have known, about the rulings in the above Superior Court of Justice decisions prior to the commencement of the hearing. The applicant submitted that in any event the respondent was notified of the conflict issue by way of letter; however, the applicant did not specify the date of the letter, nor did he provide the Tribunal with a copy of the letter. The applicant further argued that the respondent ought to have brought a motion to exclude any expert reports rather than making an oral request at the start of the hearing. The applicant’s counsel stated that he did not have notice of the respondent’s request and he did not have time to prepare a response. He submitted that it would be procedurally unfair in the circumstances to grant the respondent’s request.
13We denied the respondent’s request to exclude the applicant’s expert reports. Pursuant to s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), the Tribunal may admit as evidence at the hearing any document relevant to the subject-matter of the proceeding and may act on such evidence. The applicant’s expert reports contain information relevant to the issue of a catastrophic impairment determination. As such, the Tribunal shall afford the weight it deems appropriate to the applicant’s expert reports.
Applicant’s request to allow Karina Lopez-Campos to testify
14The applicant’s request to allow Karina Lopez-Campos to testify at the hearing is granted.
15At the start of the hearing, the applicant requested that the Tribunal allow Ms. Lopez-Campos, his stepdaughter, to testify at the hearing.
16The respondent opposed the applicant’s request on the basis that it did not have notice of the applicant’s intention to call Ms. Lopez-Campos as a witness nor did it have a will-say statement of Ms. Lopez-Campos’ anticipated testimony.
17After hearing submissions from the parties, we granted the applicant’s request to call Ms. Lopez-Campos as a lay witness as her evidence may be relevant to the issue of a catastrophic impairment determination. Pursuant to s. 15(1) of the SPPA, the Tribunal may admit as evidence at a hearing any oral testimony relevant to the subject-matter of the proceeding. However, given that the applicant had not identified Ms. Lopez-Campos as a proposed witness at the case conference or when the parties exchanged their final list of witnesses, we ordered the applicant to provide the respondent with a will-say statement for Ms. Lopez-Campos by the end of the day. We also limited the length of the parties’ examination to 30 minutes each. Ms. Lopez-Campos testified on the third day of the hearing allowing time for the respondent to prepare its cross-examination.
Applicant’s request to change the order of witnesses
18The applicant’s request to change the order of witnesses is denied.
19On the second day of the hearing, the applicant requested that Ms. Lopez-Campos be called at 9:30 am on the third day of the hearing and that the applicant’s expert, Dr. Ramakrishna Surapaneni, psychiatrist, be called at 10:30 am on that day instead of the respondent’s expert, Dr. Ranjith Chandrasena, psychiatrist. The applicant stated that it was usual practice for him to close his case before the respondent calls any of its witnesses, and he suggested that Dr. Chandrasena be called to testify in the afternoon of the third day of the hearing.
20The respondent argued that Dr. Chandrasena should be permitted to testify on the third day of the hearing at 9:30 am. It stated that Dr. Chandrasena was initially scheduled to testify on the fifth day of the hearing, and to accommodate the Tribunal’s decision to reduce the length of the hearing from a 5-day hearing to a 4-day hearing, the respondent indicated that Dr. Chandrasena’s only other availability was for the third day of the hearing. The respondent noted that Dr. Chandrasena was the only witness it was calling to give oral testimony, and that his evidence was highly relevant to the issue of a catastrophic impairment determination.
21After considering the parties’ submissions, we denied the applicant’s request to change the order of witnesses.
22In the present case, at the end of the first day of the hearing, the parties discussed the proposed timetable for witnesses to testify for the remainder of the hearing. At that time, the applicant advised that he was unable to provide a date and time for Dr. Surapaneni to testify. Correspondingly, the respondent advised that Dr. Chandrasena’s only availability to testify to accommodate a 4-day hearing was on the third day of the hearing, and that it would confirm the time for his examination the following morning.
23In the circumstances, the Tribunal directed the applicant to secure Ms. Lopez-Campos’ attendance for the third day of the hearing, and Dr. Surapaneni’s attendance for the fourth day of the hearing, and it directed the respondent to secure Dr. Chandrasena’s attendance for the third day of the hearing. The following morning, the respondent confirmed that Dr. Chandrasena would testify at 9:30 am on the third day of the hearing as he was not available in the afternoon. The applicant’s request to change the order of witnesses was made after a direction from the Tribunal regarding the order of witnesses and after the respondent confirmed Dr. Chandrasena’s only availability to testify at the hearing.
24While we appreciate that it is usual practice that the applicant would call all of his witnesses before the respondent calls its witnesses, the Tribunal also has the power to control its own process and to determine its own procedures and practices (see: SPPA, 25.0.1). Due to the particular facts of this case, it would have been procedurally unfair for us to grant the applicant’s request to change the order of witnesses. Therefore, to ensure a fair and efficient hearing, we ordered that Dr. Chandrasena would testify on the third day of the hearing at 9:30 am, Ms. Lopez-Campo would testify on the third day of the hearing after the lunch break, and Dr. Surapaneni would testify on the fourth day of the hearing at 9:30 am.
ANALYSIS
Catastrophic Impairment Determination
25We find that the applicant has not demonstrated, on a balance of probabilities, that he is catastrophically impaired as a result of the November 4, 2013, and December 2, 2014 accidents.
26The test to determine whether the applicant is catastrophically impaired is a legal test and not a medical one. The criteria to establish a catastrophic impairment are found under s. 3(2) of the Schedule. In this case, the applicant claims that he is catastrophically impaired under Criterion 8 as a result of both accidents.
27To qualify under Criterion 8, the applicant must prove that he suffers from an impairment due to a mental and behavioural disorder that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”), results in a Class 4 (marked impairment) or a Class 5 (extreme impairment) in any one of the four areas of function. When an impairment is not a result of a mental or behavioural disorder, such as physically based impairments, it is not factored into the impairment level for a Criterion 8 catastrophic impairment.
28Further, Criterion 8 relies on the Guides which set out four areas of functional domains: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, and pace; and (4) adaptation (deterioration or decomposition in work or work like settings). There are five levels of impairment within each domain: Class 1 (no impairment), Class 2 (mild impairment), Class 3 (moderate impairment), Class 4 (marked impairment), and Class 5 (extreme impairment).
The applicant does not suffer from a catastrophic impairment under Criterion 8 as a result of the November 4, 2013 accident
29We find that the applicant has not demonstrated, on a balance of probabilities, that he suffers from a catastrophic impairment under Criterion 8 as a result of injuries sustained in the November 4, 2013 accident.
30As noted above, the applicant was involved in two accidents, on November 4, 2013, and on December 2, 2014.
31After the November 4, 2013 accident, the applicant reported that he sustained injuries to his left shoulder, left elbow, left knee, whiplash, injury to his back, and that he had sleep issues and stress. As a result of this accident, the applicant relies on an Application for Determination of Catastrophic Impairment (OCF-19) dated December 14, 2018, completed by Dr. Naguib Milad, physician, to support his claim that he sustained a catastrophic impairment.
32The applicant also relies on multi-disciplinary assessment reports including: a catastrophic impairment determination assessment and analysis summary report dated May 8, 2019, completed by Dr. Milad; an occupational therapy assessment report dated December 24, 2018, completed by Mr. Amchislavsky; and a psychological assessment report dated December 19, 2018, completed by Dr. Romeo Vitelli, psychologist.
33Dr. Milad concluded that the applicant has a marked impairment in the domains of activities of daily living, social functioning, and concentration, persistence, and pace, and that he has a moderate impairment in the domain of adaptation as a result of the November 4, 2013 accident.
34The respondent relies on multi-disciplinary assessment reports, all dated June 24, 2021, including: a psychiatry assessment report completed by Dr. Velan Sivasubramanian, psychiatrist; an occupational therapy activities of daily living assessment report completed by Joan Saunders, occupational therapist; and an executive summary report completed by Dr. David Mula, physician.
35Dr. Mula concluded that the applicant does not have an impairment in any of the functional domains as a result of the November 4, 2013 accident.
Mental and Behavioral Impairment
36We find that the applicant has not demonstrated that he suffers from a mental and behavioural disorder as a result of the November 4, 2013 accident.
37The applicant submits that he suffers from a mental and behavioural impairment as a result of the November 4, 2013 accident, and he relies on Dr. Vitelli’s opinion. Dr. Vitelli diagnosed the applicant with chronic pain syndrome, major affective disorder, and depression, with symptoms of post-traumatic stress as a result of the November 4, 2013 accident.
38In contrast, the respondent submits that the applicant does not suffer from a mental and behavioural impairment as a result of the November 4, 2013 accident, and it relies on Dr. Sivasubramanian’s opinion. Dr. Sivasubramanian concluded that from a psychiatric perspective, the applicant does not meet the criteria for any diagnosable disorder or condition as a direct result of the November 4, 2013 accident.
39We find that the evidence does not support a finding that the applicant suffers from a mental and behavioural impairment as a result of the November 4, 2013 accident. The applicant has not directed us to records from the period between the two accidents, i.e. between November 4, 2013 and December 2, 2014, indicating that he was experiencing mental and behavioural impairments that could be attributed to the November 4, 2013 accident.
40Although Dr. Vitelli diagnosed the applicant with a mental and behavioural impairment as a result of the November 4, 2013 accident, the evidence does not support Dr. Vitelli’s findings. Dr. Vitelli assessed the applicant on December 19, 2018. At that time, the applicant reported that he continued to experience headaches as well as chronic pain in his upper back, lower back, shoulders, elbow, knees, and arms. He reported experiencing adjustment disorder symptoms, including disturbed sleep, depression, anxiety, and somatic pain as well as problems such as memory and concentration problems. However, Dr. Vitelli did not consider the applicant’s pre-existing psychiatric impairment.
41In his report, Dr. Vitelli indicated that the applicant did not have a psychiatric history or any contact with a psychiatrist prior to the November 4, 2013 accident, which is inconsistent with the applicant’s medical records. Indeed, according to the clinical notes and records and testimony of Dr. Surapaneni, prior to the November 4, 2013 accident, the applicant was diagnosed with chronic pain syndrome, major affective disorder, major depression, and post traumatic stress disorder, and he has been undergoing psychiatric treatment with Dr. Surapaneni since April 1992. Further, since January 2012, the applicant has been taking narcotic medication, including Oxycocet, OxyContin, Dilaudid, and Nexium, to treat his chronic pain due to injuries he sustained to his knees, hips, and left leg as a result of a workplace injury that occurred in or around 1984. There is no indication in Dr. Vitelli’s report that he reviewed the clinical notes and records of Dr. Surapaneni pre-dating the November 4, 2013 accident.
42We place greater weight on the findings of Dr. Sivasubramanian over those of Dr. Vitelli as Dr. Sivasubramanian’s assessment was more comprehensive and considered the applicant’s pre-existing psychiatric impairment. When Dr. Sivasubramanian assessed the applicant on January 27, 2021, he found that the applicant presented with somatic symptom disorder with predominant pain. However, he did not attribute this diagnosis to the November 4, 2013 accident. He noted that the applicant’s physical injuries following the November 4, 2013 accident appeared to have been relatively minor. In Dr. Sivasubramanian’s view, there was little indication of any significant mental health concerns following the November 4, 2013 accident, and there was no indication of any worsening of his pre-existing psychiatric symptoms following that accident. As such, Dr. Sivasubramanian concluded that, from a psychiatric perspective, the applicant did not meet the criteria for any diagnosable disorder or condition as a direct result of the November 4, 2013 accident.
43Having found that the applicant has not established that he suffers from a mental and behavioural impairment as a result of the November 4, 2013 accident, it follows that the applicant has not established, on a balance of probabilities, that he sustained a catastrophic impairment under Criterion 8 as a result of that accident.
44Even if we are wrong, we further find that the applicant has not demonstrated, on a balance of probabilities, that he suffers from a marked impairment in three out of the four functional domains or an extreme impairment in at least one functional domain as a result of the November 4, 2013 accident.
Activities of Daily Living
45We find that the applicant does not suffer from a marked impairment or an extreme impairment in the domain of activities of daily living as a result of the November 4, 2013 accident.
46The Guides specify that activities of daily living functioning include self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitations in these activities should be related to the mental disorder. In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction. What is assessed is not the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
47We find that the evidence does not support a finding that the applicant’s accident-related mental and behavioural impairment significantly impede useful functioning in the domain of activities of daily living. Although Dr. Milad found that the applicant sustained a marked impairment in this domain, we place limited weight on his findings. Dr. Milad relies primarily on the findings of Dr. Vitelli and Mr. Amchislavsky, who in turn heavily relied on the applicant’s self-reporting.
48We find that the applicant is a poor historian, and that his evidence is not reliable. Based on the applicant’s medical record, he experienced strokes in 2015 and December 2017, and he suffers from dementia. When the applicant testified at the hearing, he was unable to articulate clearly which injuries he sustained as a result of the November 4, 2013 accident and which injuries he sustained as a result of the December 2, 2014 accident. Further, his timelines were blurred, and throughout his testimony, there was a great deal of ambiguity and confusion regarding his level of functioning prior to the November 4, 2013 accident, between the November 4, 2013 accident and the December 2, 2014 accident, and after the December 2, 2014 accident. Similarly, Dr. Vitelli, Dr. Milad, and Mr. Amchislavsky do not appear to distinguish between these relevant time periods.
49We find that the evidence does not support a finding that the applicant experiences functional limitations in his ability to carry out his activities of daily living because of a mental and behavioural impairment related to the November 4, 2013 accident. In his report, Dr. Vitelli noted that at the time of the accident, the applicant was retired, and he continued to enjoy an active lifestyle. The applicant reported that he was a fully functioning, independent, and an active person who was capable of managing all aspects of his activities of daily living, including laundry, washing dishes, cleaning the kitchen, mopping, sweeping, dusting, vacuuming, bathroom cleaning, grocery shopping, bed making, meal preparation, garbage removal, gardening, lawn care, snow removal, and household repairs without assistance. The applicant reported that since the accident, he has been unable to continue with these tasks and requires assistance due to significant levels of chronic pain, anxiety, depression, memory impairment, and poor sleep.
50However, while Dr. Vitelli attributes the applicant’s decline in his ability to engage in his activities of daily living to the November 4, 2013 accident, he does not appear to have factored in his report the applicant’s extensive medical history of pre-existing chronic pain, anxiety, depression, and sleep disfunction and the impact of the applicant’s non-accident-related impairments on his activities of daily living.
51In contrast, Dr. Sivasubramanian reviewed the applicant’s relevant medical history and noted that the applicant was limited by his physical pain which he attributed to back surgeries that were “unsuccessful.” The applicant underwent surgeries to his back in February 2016, January 2018, and March 2019 as well as surgeries to his knees in August 2018 and October 2018. He also noted that the applicant’s lack of sleep was due to pain, his sleep apnea, and his uncontrolled diabetes which further contributed to his fatigue and diminished concentration.
52Considering the above, the applicant has not met his onus of proving that he suffers from a marked impairment or an extreme impairment under the activities of daily living domain as a result of the November 4, 2013 accident.
Social Functioning
53We find that the applicant does not suffer from a marked impairment or an extreme impairment in the domain of social functioning as a result of the November 4, 2013 accident.
54The 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.
55We find that the evidence does not support a finding that the applicant’s accident-related injuries significantly impede useful functioning in the domain of social functioning. In his report, Dr. Vitelli noted that the applicant had become isolated from his family and friends since the November 4, 2013 accident. Dr. Vitelli indicated that the applicant was no longer able to engage in any of the recreational activities he previously enjoyed prior to the accident such as playing soccer or attend church due to his anxiety and depression. The applicant also reported that he no longer attends family gatherings or community events as he feels shame and guilt, and he cries all the time. However, Dr. Vitelli does not appear to have considered Dr. Surapaneni’s pre-accident diagnosis of depression, major affective disorder, post-traumatic stress disorder, and chronic pain syndrome in his analysis of the applicant’s post-accident social functioning. Indeed, Dr. Vitelli did not mention Dr. Surapaneni’s pre-accident findings in his report.
56In contrast, while Dr. Sivasubramanian acknowledged that the applicant has some impairments, despite these impairments, the applicant maintained good relationships with family and friends, and he continued to interact with his children and his ex-wife. This was corroborated by the testimony of Ms. Lopez-Campos. She testified that the applicant’s friend takes him to appointments and out for coffee.
57Dr. Sivasubramanian also noted that during his clinical interview, the applicant maintained good eye contact. His affect was intact, reactive, and appropriate. He answered questions spontaneously. There was no indication of wording difficulty. He had no trouble maintaining conversation. He was reasonably groomed and casually attired. This was consistent with Ms. Saunders’ observations.
58Considering the above, we find that the applicant has not met his onus of proving that he suffers from a marked impairment or an extreme impairment in the social functioning domain as a result of the November 4, 2013 accident.
Concentration, Persistence, and Pace
59We find that the applicant does not suffer from a marked impairment or an extreme impairment in the domain of concentration, persistence, and pace as a result of the November 4, 2013 accident.
60The Guides specify that the factors to be considered under this domain are 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 or at work. In order to consider strength and weakness 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.
61We find that there is insufficient evidence to support a finding that the applicant’s accident-related injuries significantly impede useful functioning in the domain of concentration, persistence, and pace. In his report, Dr. Vitelli indicated that the applicant had difficulty focusing, concentrating, solving problems, and slowed speed of thinking as a result of the November 4, 2013 accident. He also noted that the applicant demonstrated considerable memory problems. However, Dr. Vitelli did not appear to have considered the impact of the applicant’s non-accident-related impairments in his report, such as the applicant’s untreated sleep apnea, his poorly treated diabetes, and his strokes.
62In contrast, Dr. Sivasubramanian considered the impact of the applicant’s non-accident-related medical condition on his post-accident presentation. In doing so, Dr. Sivasubramanian strongly suspected that the applicant’s poor sleep and untreated sleep apnea was contributing to his sense of fatigue. He also strongly suspected that the applicant’s poorly treated diabetes and hypertension were also contributing to his reported poor concentration and memory issues. Dr. Sivasubramanian noted that the applicant experienced a stroke following the accident and, that on examination, there was no evidence of gross thought disorder. There were no word-finding difficulties. The applicant had been driving independently for years following the November 4, 2013 accident until losing his licence for speeding. He continued to occasionally read the newspaper. Also, in the years following the accident, he continued to look after his own finances, he looked after his home independently, and he managed his own medication.
63Considering the above, we find that the applicant has not met his onus of proving that he suffers from a marked impairment or an extreme impairment in the concentration, persistence, and pace domain as a result of the November 4, 2013 accident.
64Accordingly, the applicant has not established, on a balance of probabilities, that he sustained a catastrophic impairment under Criterion 8 as a result of the November 4, 2013, accident.
The applicant does not suffer from a catastrophic impairment under Criterion 8 as a result of the December 2, 2014 accident
65We find that the applicant has not demonstrated, on a balance of probabilities, that he suffers from a catastrophic impairment under Criterion 8 as a result of injuries sustained in the December 2, 2014 accident.
66After the December 2, 2014 accident, the applicant reported that he was experiencing pain to his chest, left knee, left elbow, left shoulder, and back. He also stated that he stopped spending time with family and friends, he experienced bad moods, and he cried all the time. As a result of this accident, the applicant relies on an OCF-19 dated May 28, 2021, completed by Dr. Kwok to support his claim that he sustained a catastrophic impairment as a result of the second accident.
67The applicant also relies on multi-disciplinary assessment reports including: a catastrophic impairment summary report dated May 28, 2021, completed by Dr. Kwok; a psychiatry examination report dated May 24, 2021, completed by Dr. Gavett-Liu; and an occupational therapy assessment report dated February 25, 2021, completed by Mr. Amchislavsky.
68Dr. Kwok concluded that the applicant has a marked impairment in the domains of activities of daily living, concentration, persistence, and pace, and adaptation, and that he has a moderate impairment in the domain of social functioning.
69The respondent relies on multi-disciplinary assessment reports, all dated June 17, 2024, including: an executive summary report completed by Dr. C. Bruce Paitich, orthopaedic surgeon; a neurocognitive examination report completed by Dr. Konstantine Zakzanis, neuropsychologist and psychologist; an occupational therapy in-home activities of daily living assessment report completed by Tracie Shaw, occupational therapist; and a psychiatry examination report completed by Dr. Chandrasena.
70Dr. Paitich concluded that the applicant has a moderate impairment in domains of activities of daily living, concentration, persistence, and pace, and adaptation, and that he has a mild impairment in social functioning.
Mental and Behavioral Impairment
71We find that the applicant has established that he suffers from a mental and behavioural impairment as a result of the December 2, 2014 accident.
72The applicant submits that he suffers from major depressive disorder as a result of the December 2, 2014 accident, and he relies on the diagnosis of Dr. Gavett-Liu. The applicant argues that causation has been proven. Relying on paragraph 31 of the Divisional Court’s decision of Sabadash v. State Farm et al., 2019 ONSC 1121 (“Sabadash”), the applicant argues that scientific proof of causation is not required. Further, although the applicant acknowledges that he has pre-existing medical conditions, he argues that there is no indication in the Schedule of a legislative intent that the respondent’s liability to the issues in dispute should be subject to discount for apportionment of causation due to these pre-existing medical conditions.
73The applicant further submits that the evidence supports that he experienced a deterioration in his functional abilities following the accident, and that based on Dr. Gavett-Liu’s report, causation has been met. In her report, Dr. Gavett-Liu indicated that in the three months preceding the December 2, 2014 accident, the applicant reported being well with respect to his mental state, and he denied having a history of formal mental health diagnoses or psychiatric treatment. The applicant reported that following this accident, he experienced persistent physical symptoms which led to depressive and anxiety symptoms. Dr. Gavett-Liu ultimately opined that the causation test had been met, and that “but for” the accident, the applicant would not has sustained a psychiatric impairment with which he is currently faced.
74In response, the respondent argues that causation has not been met in this case, and it submits that regardless of the accident, the applicant would have experienced physical, psychological, and cognitive impairments. The respondent states that at the time of the December 2, 2014 accident, the applicant was nearly 70 years old, and that based on the medical evidence, the applicant has several unrelated pre-accident and post-accident medical conditions. It points to the applicant’s strokes which occurred in 2015 and 2017, after the two subject accidents, and states that these strokes were significant enough to result in five-day hospital stays and have contributed to most of the applicant’s cognitive and physical decline.
75The respondent further notes that the applicant had several surgeries for his back in February 2016, January 2018, and March 2019, and to his knees in August 2018 and October 2018, and it states that there is no evidence that these surgeries were because of the December 2, 2014 accident. He also has a pre-accident history of mental and behavioural impairment, including a diagnosis of depression, anxiety, and sleep apnea, and he has been dependant on several prescription narcotics for years.
76Despite denying that causation has been met, the respondent concedes that the applicant’s pre-existing psychiatric impairment was exacerbated by the December 2, 2014 accident, and that he suffers from post-traumatic stress disorder as a result of that accident. The respondent relies on the opinion of Dr. Chandrasena.
77We find that there is insufficient evidence to support a finding that the applicant suffers from major depressive disorder as a result of the December 2, 2014 accident. We place limited weight on Dr. Gavett-Liu’s report as it contains inconsistent statements. While Dr. Gavett-Liu’s findings are based on the premise that the applicant had an unremarkable pre-accident mental health history, this proposition is inconsistent with her review of the applicant’s medical records. Indeed, in her document review, Dr. Gavett-Liu noted that prior to the November 4, 2013 accident and between the November 4, 2013 accident and the December 2, 2014 accident, the applicant was being treated by Dr. Surapaneni for chronic pain syndrome, major affective disorder, depression, and post-traumatic stress disorder and that he was taking various prescription narcotics to treat his pain. There is no indication in Dr. Gavett-Liu’s report that she considered the impact of the applicant’s pre-existing psychiatric impairment in his post-accident presentation.
78Correspondingly, we place greater weight on the findings of Dr. Chandrasena over those of Dr. Gavett-Liu as Dr. Chandrasena’s assessment was more comprehensive and considered the applicant’s non-accident-related impairments on his presentation at the time of this assessment. In his report, giving the applicant the benefit of the doubt, Dr. Chandrasena found that the applicant presented with some exacerbation of symptomology of his pre-accident psychiatric problems, but that he was able to continue functioning in social, occupational, interpersonal, and vocational pursuits to some degree in the years following the December 2, 2014 accident. He further found that this accident led to the applicant experiencing an exacerbation of his chronic pain and concluded that the applicant suffered from post-traumatic stress as a result of the December 2, 2014 accident.
79Based on the evidence, we find that “but for” the December 2, 2014 accident, the applicant’s pre-existing chronic pain would not have been exacerbated, and he would not have experienced post-traumatic stress related to the December 2, 2014 accident. Accordingly, we find that the applicant suffers from a mental and behavioural impairment as a result of the December 2, 2014 accident.
Activities of Daily Living
80We find that the applicant does not suffer from a marked impairment or an extreme impairment in the domain of activities of daily living as a result of the December 2, 2014 accident.
81We find that there is insufficient evidence to support a finding that the applicant’s post-traumatic stress disorder and the exacerbation of his chronic pain significantly impede useful functioning in the domain of activities of daily living. Although Dr. Gavett-Liu found that the applicant sustained a marked impairment in this domain, we place limited weight on her findings. Dr. Gavett-Liu did not adequately consider the applicant’s pre-existing medical condition in her report, and she attributed the applicant’s low energy levels, decreased libido, diminished attention, and pain to the accident despite the fact that these impairments are well-documented as non-accident-related impairments in the clinical notes and records of the applicant’s family physician and hospital records.
82Further, the applicant reported to Ms. Shaw that he was independent in his ability to engage in his activities of daily living prior to the December 2, 2014 accident, and that he did not have significant limitations at the time of that accident. He further reported that since the December 2, 2014 accident, he had a hard time getting up, he was unable to travel, he did not do much, he had difficulty with sleep, he did not cook, he did not do housework, and he did not drive. He reported that he mainly watched TV and sometimes talked to friends on the phone.
83We find that the applicant’s account of his pre-accident status is inconsistent with his medical records. A review of the applicant’s medical records indicate that the applicant had various medical issues at the time of the December 2, 2014 accident including, but not limited to, chronic pain, depression, high blood pressure, high cholesterol, sleep apnea, diabetes with associated bilateral lower extremity diabetic neuropathy, cardiac issues, and issues with his spine, knees, and shoulders requiring investigation. While the applicant self-reported that following the November 4, 2013 accident, he was unable to continue with his activities of daily living tasks and that he required assistance due to significant levels of chronic pain, anxiety, depression, memory impairment, and poor sleep, since these impairments were documented prior to both subject accidents, we accept that they preceded the December 2, 2014 accident.
84Further, when Dr. Chandrasena assessed the applicant, he found that the applicant was not a reliable historian when it came to providing information about his recent medical history, and that he could more easily recall his past medical history, which is consistent with the abilities of someone who has had a stroke. Dr. Chandrasena noted the applicant appeared to have been living independently with some support from family due to his mental and behavioural symptomatology at the time of the December 2, 2014 accident. Taking into consideration the applicant’s ability to engage in his activities of daily living during the first two years following the accident, he opined that this was a reasonable snapshot of the applicant’s ability to engage in activities of daily living resulting in any impairment as a direct result of the accident. He assigned a moderate rating for accident-related psychological and psychiatric symptomology.
85For all the reasons set out above, the applicant has not met his onus of proving that he suffers from a marked impairment or an extreme impairment under the activities of daily living domain as a result of the December 2, 2014 accident.
Concentration, Persistence, and Pace
86We find that the applicant does not suffer from a marked impairment or an extreme impairment in the domain of concentration, persistence, and pace as a result of the December 2, 2014 accident.
87We find that there is insufficient evidence to support a finding that the applicant’s post-traumatic stress disorder and the exacerbation of his chronic pain significantly impede useful functioning in the domain of concentration, persistence, and pace. Dr. Gavett-Liu heavily relied on the applicant’s self-reporting, and she did not perform cognitive testing. She did, however, indicate that the applicant exhibited intact concentration during the assessment. He was able to alternate his attention between Dr. Gavett-Liu and the psychiatric assistant who was present during the assessment. Dr. Gavett-Liu also confirmed that the applicant continued to drive following the accident which requires multiple cognitive processes such as concentration and executive planning.
88In contrast, Dr. Gavett-Liu found that the applicant had difficulty maintaining attention for prolonged periods of time, and he had some difficulty remembering and carrying out instructions. He also had trouble concentrating during distractions, planning, performing at a consistent pace without rest periods, and multitasking. We place less weight on Dr. Gavett-Liu’s report as she did not take into consideration the applicant’s unrelated medical conditions, and her findings relating to the applicant’s concentration, persistence, and pace are inconsistent.
89Moreover, while the evidence of Ms. Shaw supports a finding that the applicant has functional limitations in this domain, she also found that it was unclear the extent to which the applicant’s presentation was attributed to the December 2, 2014 accident, and it is beyond the scope of her practice to diagnose or determine causation. Additionally, Dr. Chandrasena found that the applicant had a moderate impairment in this domain. He noted that the applicant continued to drive following the accident, he was able to manage a gas station, which he owned, and he was able to care for his adult son.
90Considering the above, we find that the applicant has not met his onus of proving that he suffers from a marked impairment or an extreme impairment in the concentration, persistence, and pace domain as a result of the December 2, 2014 accident.
Adaptation
91We find that the applicant does not suffer from a marked impairment or an extreme impairment in the domain of adaptation as a result of the December 2, 2014 accident.
92The Guides specify that adaptation (deterioration or decompensation in work or work like settings) refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances, the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder, that is, decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers.
93We find that there is insufficient evidence to support a finding that the applicant’s post-traumatic stress disorder and the exacerbation of his chronic pain significantly impede useful functioning in the domain of adaptation. As previously indicated, Dr. Gavett-Liu did not take into consideration the applicant’s unrelated mental and behavioural impairments in her impairment rating. Further, she described the applicant as calm, organized, and able to maintain attention. She noted that he was capable of driving safely, which requires an element to stress management and decision-making. While she indicated that the applicant had some difficulty with memory retrieval when recalling past details and events, he was able to respond to questioning within normal timeframes. We find Dr. Gavett-Liu’s description of the applicant’s level of impairment inconsistent with a marked impairment.
94Moreover, Dr. Chandrasena noted that based on the applicant’s reported work history, in the later years of his working life, the applicant owned his own business and had people working for him. He managed his staff, his books, and his property management duties. The applicant sold his business after he suffered from a stroke. Further, the applicant reported being independent in completing his errands when transportation and support was provided. He found that a moderate impairment rating was appropriate in the circumstances.
95Considering the above, we find that the applicant has not met his onus of proving that he suffers from a marked impairment or an extreme impairment in the adaptation domain as a result of the December 2, 2014 accident. Accordingly, the applicant has not established, on a balance of probabilities, that he sustained a catastrophic impairment under Criterion 8 as a result of the December 2, 2014, accident.
96We find that the applicant has not demonstrated, on a balance of probabilities, that the disputed treatment plans are reasonable and necessary as a result of the accident that occurred on December 2, 2014.
97To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of the treatment plan, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
The applicant is not entitled to chiropractic services in the amount of $11,165.60 (Issue 2)
98We find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan dated July 9, 2021, for chiropractic services in the amount of $11,165.60 is reasonable and necessary.
99The treatment plan proposes 24 chiropractic treatment sessions, 24 acupuncture treatment sessions, 24 physiotherapy treatment sessions, a naturopath assessment, 14 laser therapy sessions, a physiotherapy assessment, a chiropractic reassessment, a topical cream, and completion of the treatment plan. The goals of the treatment plan are to reduce pain, to increase strength, to increase range of motion, to improve endurance, to improve flexibility, and to return to activities of normal living.
100We find that the evidence does not support a finding that the treatment plan is reasonable and necessary. The applicant did not direct us to evidence that would support a finding that the treatment plan is reasonable and necessary. Further, the applicant testified that he did not receive any benefit from chiropractic treatment and that he found massage therapy to be more effective.
101Further, the applicant underwent an insurer examination with Dr. Mohamed Khaled, physician. In his report dated September 27, 2021, Dr. Khaled concluded that the applicant had sustained soft tissue injuries as a result of the December 2, 2014 accident, consistent with myofascial sprain/strain of the cervical spine, lumbar spine, and associated left shoulder sprain/strain and left knee sprain/strain. Although the applicant’s pre-accident medical problems were likely initially worsened by the accident, as more than six and a half years had passed since the accident, Dr. Khaled found that the applicant’s present ongoing symptoms and functional impairments were not likely directly related to the accident. Moreover, Dr. Khaled opined that the applicant’s present impairments and limitations represented a progression of the applicant’s significant pre-accident medical conditions that have gradually worsened over time. Ultimately, Dr. Khaled found that the treatment plan was not reasonable and necessary.
102Accordingly, we find that the applicant has not established entitlement to the disputed treatment plan.
The applicant is not entitled to a functional ability evaluation in the amount of $2,486.00 (Issue 3a)
103We find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan dated May 18, 2021, for a functional ability evaluation in the amount of $2,486.00 is reasonable and necessary.
104The treatment plan proposes funding for a functional ability evaluation and completion of the treatment plan. The goals of the treatment plan are to determine the applicant’s current level of function, to evaluate his abilities relative to his work demands and activities of daily living, to return to activities of normal living, to return to his pre-accident work activities, and to return to modified work activities.
105We find that the evidence does not support a finding that the treatment plan is reasonable and necessary. The applicant argues that the treatment plan is reasonable and necessary because there is evidence that he has physical limitation. In this regard, he relies on his oral testimony and the testimony of Ms. Lopez-Campos. However, the applicant did not specify which portion of his testimony and the testimony of Ms. Lopez-Campos he was relying on in support of his claim. In any event, the testimony of these witnesses does not sufficiently support that the applicant’s ongoing physical limitations are because of the injuries he sustained in the December 2, 2014 accident.
106Further, the applicant previously submitted a similar treatment plan dated November 6, 2018, for a functional ability evaluation. Following an insurer’s examination, Dr. Jamie Rusen, orthopaedic surgeon, found that a functional ability evaluation was not reasonable and necessary as a result of the December 2, 2014, accident. He diagnosed the applicant with whiplash associated disorder (Type 2) with cervical spine strain and soft tissue strain/sprain/contusion to the left shoulder, left hip, thoracic spine, lumbar spine, and left knee as a result of this accident. He noted that the typical healing time for the applicant’s accident-related soft tissue injuries is in the range of six to 12 weeks. In his opinion, the applicant’s ongoing musculoskeletal impairment is primarily related to pre-accident degenerative conditions as opposed to any contribution from any accident-related musculoskeletal injury. Dr. Rusen found that a functional ability evaluation would not contribute to further objective recovery from any accident-related injury.
107Similarly, in his report dated July 23, 2021, Dr. Khaled concluded that the disputed treatment plan was not reasonable and necessary. He maintained that the applicant sustained soft tissue injuries as a result of the December 2, 2014, accident, and that the applicant’s ongoing symptoms and functional impairments represent a progression of his significant pre-accident medical conditions that have gradually worsened over time.
108Accordingly, we find that the applicant has not established entitlement to the disputed treatment plan.
The applicant is not entitled to an attendant care assessment in the amount of $2,486.00 (Issue 3b)
109We find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan dated May 18, 2021, for an attendant care assessment in the amount of $2,486.00 is reasonable and necessary.
110The treatment plan proposes an attendant care assessment, physical screening, cognitive screening, a functional occupational therapy assessment, medical file review, report preparation, completion of an attendant care needs form (Form 1), a home environment assessment, and completion of the treatment plan. The goals of the treatment plan are to assess the applicant’s current living situation, to determine the need for assistive devices, assistance at home and with engaging in his activities of daily living, and to recommend treatment options and lifestyle changes.
111We find that the evidence does not support a finding that the treatment plan is reasonable and necessary. The applicant argues that the treatment plan is reasonable and necessary because there is evidence that he has difficulty engaging in his activities of daily living and that he needs help. He relies on his oral testimony and the testimony of Ms. Lopez-Campos. However, the applicant did not specify which portion of his testimony and the testimony of Ms. Lopez-Campos he was relying on in support of his claim. Also, the applicant has not directed us to evidence to support that his challenges are because of the injuries he sustained in the December 2, 2014 accident.
112Further, the applicant was assessed by Dr. Khaled. In his report dated July 23, 2021, Dr. Khaled concluded that the treatment plan was not reasonable and necessary as the applicant’s present symptoms are not causally related to the accident and that there is no functional impairment attributed to the accident. He maintained that the applicant sustained soft tissue injuries as a result of the accident, and that the applicant’s ongoing symptoms and functional impairments represent a progression of his significant pre-accident medical conditions that have gradually worsened over time.
113Accordingly, we find that the applicant has not established entitlement to the disputed treatment plan.
Interest
114Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.
Award
115Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit. As we have concluded that the applicant is not entitled to the treatment plans in dispute, it follows that no benefits were unreasonably withheld or delayed. Accordingly, the respondent is not liable to pay an award.
ORDER
116For the reasons outlined above, we find that:
The applicant is not catastrophically impaired under Criterion 8.
The applicant is not entitled to the disputed treatment plans.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
117The application is dismissed.
Released: January 23, 2025
Ludmilla Jarda Adjudicator
Mary Henein Thorn Adjudicator