Leslie v. Wawanesa Mutual Insurance Company, 2025 CanLII 45368

Citation: Leslie v. Wawanesa Mutual Insurance Company, 2025 ONLAT 24-002463/AABS

Licence Appeal Tribunal File Number: 24-002463/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:

Jason Robert Leslie

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

John Mazzilli

APPEARANCES:

For the Applicant:

Daniela Algieri-Boileau, Counsel

Ilona Agivaeva, Counsel

For the Respondent:

Jason H Goodman, Counsel

Court Reporter:

Kyle Climans

HEARD: by Videoconference:

January 6-10, 2025

OVERVIEW

1Jason Robert Leslie, (the “applicant”), was involved in an automobile accident on January 20, 2020, 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 Wawanesa Mutual Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Has the applicant sustained a catastrophic impairment as defined by the Schedule under Criterion 6 & 7?

ii. Is the applicant entitled to $8,305.50 ($24,577.50 less $16,272.00 approved) for catastrophic impairment assessments, proposed by Omega Medical Associates in a treatment plan/OCF-18 (“treatment plan”) dated July 27, 2022?

iii. Is the applicant entitled to $8,871.62 for medical devices, proposed by St. Josephs Health Care London in a treatment plan dated February 17, 2023?

iv. Is the applicant entitled to $1,200.00 for a neurovisual rehabilitation assessment, proposed by London Vision Development Centre in a treatment plan dated November 14, 2023?

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

RESULT

3The applicant is not catastrophically impaired in accordance with the Schedule under Criterion 6 & 7.

4The applicant is not entitled to $8,305.50 ($24,577.50 less $16,272.00 approved) for catastrophic impairment assessments.

5The applicant is entitled to $8,871.62 for medical devices.

6The applicant is entitled to $1,200.00 for a neurovisual rehabilitation assessment.

7Since the applicant is entitled to $1,200.00 for a neurovisual assessment and $8,871.62 for medical devices, interest is also owing on the assessment and medical devices treatment plan.

PROCEDURAL ISSUES

Applicant sought to add Dr. Khamis as a witness

8On December 11, 2024, the applicant filed a summons to a witness form with the Tribunal seeking a summons for Dr. Khamis. The Tribunal denied this request because the applicant sought the witness to produce documents at the hearing that ought to have already been obtained, as set out in the Case Conference Report and Order dated July 8, 2024. In addition, the Tribunal found that a summons for Dr. Khamis is inconsistent with the Case Conference Report and Order as Dr. Khamis was not listed as a potential witness for the hearing.

9On December 23, 2024, the applicant filed a notice of motion to be heard at the hearing, requesting that I add Dr. Khamis as a witness and for the Tribunal to issue a summons. The applicant submits that there is no prejudice to the respondent as the respondent received Dr. Khamis’s records prior to the service deadlines and his testimony would be critical to the applicant’s case for catastrophic impairment and because the respondent had denied Dr. Khamis’s treatment plan.

10Further, the applicant submits that the respondent was aware of its intention to call Dr. Khamis as a witness seven weeks prior to the scheduled hearing and that the respondent did not object to Dr. Khamis being added as a witness until after the Tribunal’s denial of the summons. The applicant further submits that the administration of justice requires adding Dr. Khamis as a witness and offered to substitute another witness for Dr. Khamis’s testimony, therefore there would be no change to the duration of the hearing.

11The respondent argues that the applicant ought to have identified Dr. Khamis as witness for the hearing at the time of the Case Conference. The respondent further argues that it prepared for the hearing based on the identified witness list provided in the Case Conference Report and Order and that allowing Dr. Khamis to testify would amount to trial by ambush.

12The respondent further argues that it denied Dr. Khamis’s treatment plan in November of 2023, which was before the case conference was even held, therefore the applicant ought to have communicated their intention to call Dr. Khamis as a witness at the case conference.

13In addition, the respondent argues that it would be prejudiced by Dr. Khamis’s testimony because it would not be able to exercise their right under LAT Rule 10 to challenge Dr. Khamis as an expert witness in accordance with LAT Rule 10.4 which is a provision providing a party the ability to challenge an expert. LAT Rule 10.4 reads that the party intending to challenge an expert witness' qualifications, report, or witness statement must: give notice, with reasons for the challenge, to the other parties no later than 21 days before the hearing; and file a copy of the notice with the Tribunal as part of the hearing brief filed by the party pursuant to Rule 9.

14In this case the applicant did not file an oral hearing requirement form with the Tribunal, however the applicant did send a final witness list to the Tribunal on December 27, 2024, by email, which was only nine days prior to the commencement of the scheduled hearing. I find that the applicant was in breach of LAT Rule 9.4.4 as the applicant did not file their final witness list within 21 days prior to the scheduled hearing and accordingly I did not allow Dr. Khamis to testify at the hearing.

Applicant seeks to add TMJ report and progress report of Dr. Khamis

15The applicant submits that the TMJ and progress reports of Dr. Khamis did not exist prior to any service deadline and that they had been disclosed to the respondent immediately upon being available to the applicant and therefore I should place full weight to the reports. The applicant further takes exception to the respondent omitting these records in the joint document brief without discussing with the applicant. In addition, the applicant submits that costs should be ordered because of the extra time spent in having to complete a supplementary brief and argues this point in the closing remarks. Further the applicant submits that their claim evolved over time, and it is the applicant’s obligation to continue to provide relevant documents to the respondent whether or not a LAT dispute is pending.

16The respondent argues that the applicant has not met their burden of proof and questions why the evidence only became available before the hearing. It argues that allowing the TMJ report and progress report of Dr. Khamis to be admitted would amount to procedural injustice and sharp practice from the applicant. It further argues that if I allow the reports of Dr. Khamis as evidence they should received little weight in my decision because of the late filed evidence.

17I admitted the TMJ report and the progress report of Dr. Khamis because I found the reports to be probative and, upon examination of the reports, I found that the reports speak to the neurovisual treatment plan in dispute even if they do not provide a Whole Person Impairment (“WPI”) rating under Criterion 6 or 7. I did not diminish any weight to the reports of Dr. Khamis because his reports only speak to the need for the proposed treatment and do not address a WPI rating. I will also address the costs sought by the applicant from the respondent below.

ANALYSIS

The Applicant does not suffer from a catastrophic impairment under Criterion 6

18I find that the applicant has not demonstrated, on a balance of probabilities, that he has a physical impairment or a combination of physical impairments as a result of the injuries sustained in the accident that results in a whole person impairment (“WPI”) of 55% or more.

19To qualify under Criterion 6, the applicant must prove that he has a physical impairment or a combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (“Guides, 4th Edition”) results in a 55% or more physical WPI.

20The applicant relies on a catastrophic impairment executive summary report prepared by Dr. Harold Becker, general practitioner, and Dr. Lisa Becker, Physiatrist dated January 18, 2023, and an addendum report dated June 25, 2024. The results of the multidisciplinary assessments led Dr. Lisa Becker, physiatrist, to advance an OCF-19 application for catastrophic determination on January 18, 2023.

21The respondent relies on the catastrophic impairment executive summary report prepared by Dr. Mascarenhas, general practitioner, dated January 15, 2024.

22The chart below outlines the summary of the applicant’s and the respondent’s medical assessor’s ratings based on the rebuttal reports under Criterion 6.

Areas of Impairment	Applicant’s WPI %	Respondent’s WPI%
Medication effects	2-3%	3%
Cervicothoracic spine impairment	5%	5%
Lumbosacral spine impairment	5%	0%
Oculo-visual impairment	0%	0%
Headaches	5%	5%
Mental status impairment	14%	0%
Sleep impairment	9%	9%
Hearing Loss / Tinnitus	1% / 5%	4%
Impairment of mastication and deglutition	4%	0%
Dizziness/vestibular Impairment	20%	10%
Criterion 6 rating	53%	31%

23In accordance with the chart above, the parties agree that the applicant has sustained a 3% WPI in medication effects, 5% WPI in Cervicothoracic spine impairment, 5% WPI for headaches, and a 9% WPI in sleep impairment. Therefore, my analysis will focus on the medical evidence in the areas of disagreement which are outlined below in my decision.

24As already discussed, the applicant produced an addendum report. It is important to note that the addendum report produced a revised rating of 53% WPI under Criterion 6 and a 58% WPI under Criterion 7 because the applicant accepted the respondents 0% WPI in Oculo-visual impairment as the applicant’s assessors were not qualified experts in accordance with the AMA Guides in this regard.

25A score of 53% WPI under Criterion 6 is a score that can be rounded to 55% in accordance with the rounding directive on page 9 of the AMA Guides 4th edition. I will speak further to the WPI% rating in relation to the applicant’s Oculo-visual impairment below in my decision.

Criterion 6 Areas of Disagreement in WPI%

Mental status Impairment

26I find that the applicant has sustained a 0% WPI in his mental status as a result of the accident.

27The applicant submits that as a result of the accident he has sustained a 14% WPI in his mental status. The applicant relies on the report of Dr. Kingston, neurologist, arising out of an assessment dated October 31, 2022.

28The respondent submits that the applicant has not suffered any impairments to his mental status and therefore assigned 0% WPI. The respondent relies on the testimony of Dr. Mendis, neurologist, and his report dated January 20, 2024, resulting from an assessment conducted on December 8, 2023. Although Dr. Mendis is a neurologist, he is also a psychiatrist, however he was not retained for his psychiatric opinion for this matter.

29It is important to note that Dr. Kingston was identified as a witness in accordance with the applicant’s final witness list, however at the hearing the applicant advised that Dr. Kingston would not be able to testify at the hearing due to scheduling conflicts. While no formal submissions were brought forward by the applicant or the respondent in relation to the assignment of weight I should assign to Dr. Kingston’s report, the respondent generally argued throughout the hearing that I ought to assign less weight to all of the applicant’s medical assessors that were not made available for cross-examination.

30In accordance with Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198, I placed less weight on the report of Dr. Kingston because he was not made available as a witness at the hearing while being identified as a witness by the applicant on his final witness list. In the absence of Dr. Kingston’s testimony to speak to the reasons for the differences in the applicant’s WPI ratings I placed more weight to the report and testimony of Dr. Mendis.

31From a neurological perspective, Dr. Kingston, and Dr. Mendis both assigned the applicant with a 5% WPI rating for headaches, and a 9% WPI rating for sleep disturbances and I accept these ratings. In his report Dr. Kingston had originally assigned an additional 20% WPI for Dizziness/Vestibular, however in the addendum report Dr. Kingston opined that a WPI rating for Dizziness/Vestibular would best be assigned by an otolaryngologist. Therefore, the only area of disagreement between Dr. Kingston and Dr. Mendis lies in their rating for mental status.

32The applicant testified that since the accident he has ongoing cognitive issues, difficulty with household chores and difficulty with some of his self care. He testified that he can no longer manage his schedule, finances, his short-term memory is not the same as it used to be and he can no longer work as a commercial delivery truck driver due to headaches, dizziness, pain associated with his neck, lower back, hearing loss, light sensitivity and that his reported double vision brings on nausea and headaches.

33He testified that he feels the room spinning even while he is laying down and that he has become irritable, cannot watch television, read the newspaper, or look at a computer screen. Both Dr. Kingston and Dr. Mendis opined that the applicant sustained a mild traumatic brain injury as a result of the accident. However, the dispute in impairment ratings arises over Dr. Mendis’s refusal to advance a rating for cognitive impairment as Dr. Mendis deferred his opinion in this regard to a neuropsychologist.

34The applicant argued that Dr. Mendis’s assessment of the applicant was incomplete because the applicant did not complete the Romberg test which is a test where the applicant was asked to stand straight and close their eyes where the goal is for the applicant to maintain balance and a heel to toe test to maintain a straight line.

35Dr. Mendis testified that he gives patients the benefit of the doubt and, for safety reasons, does not push them to complete the test. Further, Dr. Mendis testified that the applicant ‘s inability to complete these tests did not factor into his rating for mental status because the applicant did show equilibrium difficulties which are better suited for an otolaryngologist, which is why he deferred his rating for dizziness/vestibular to an otolaryngologist (“ENT”). Based on Dr. Mendis’ testimony I accept Dr. Mendis’s neurological assessment of the applicant as being complete.

36Dr. Mendis accepted and relied on Dr. Kingston’s test results in relation to the applicants Montreal Cognitive assessment (“MOCA”) and therefore did not complete his own. The results of this test produced a score of 26 out of 30, which Dr. Mendis testified to be a score that is within the normal limits.

37In his addendum report, Dr. Kingston opined that he assigned and maintained a 14% WPI score based on the applicant’s “report of enduring disabling symptoms, a plausible mechanism and operating under the assumption that the patient was being truthful”. Further, Dr. Kingston based his WPI % rating regarding the applicant’s cognitive impairment on the first-tier mental status impairment of chapter 4, table 2 of the AMA Guides.

38Dr. Mendis disagrees with Dr. Kingston’s rating because he opined that the applicant’s test results from his MOCA are within normal range, the CT head scan of January 22, 2020, shows no evidence of intracranial hemorrhage or other acute intracranial abnormality and the MRI of the applicant’s head dated September 2, 2020, also shows no acute intracranial abnormality.

39Dr. Mendis argues that the applicant’s Glasgow Coma Outcome Scale (“GCOS “) taken from the paramedics on the day of the accident shows that the applicant scored 15/15 for each of the eleven times that the test was administer to the applicant, suggesting no loss of consciousness. Further Dr. Mendis does not contribute a cognitive decline to be as a result of a concussion to the applicant but rather suggests that it could be due to depression or other health issues that are not neurological in nature.

40In this regard, Dr. Kingston’s neurological evaluation report dated October 31, 2022, opines that the applicant’s neurologic examination is unrevealing. He further points out that the applicant’s “symptoms do not meet the criteria for a mild traumatic brain injury with vestibular, sleep, cognitive symptoms, as well as persistent headache attributed to traumatic injury to the head, chronic migraine thenar type”. Dr. Kingston recommends vestibular physiotherapy as an ongoing benefit due to the applicant’s vestibular dysfunction.

41Dr. McLachlan, neurologist, also suggested that the applicant may have other health concerns not associated with his neurological status. In his report dated May 12, 2022, Dr. McLachlan opines that the applicant appears to have more than the expected degree of disability from an injury such as a concussion, from a neurological perspective, and Dr. McLachlan raises the possibility of other ongoing unrecognized issues.

42Dr. Mendis opined that from a mental status perspective the applicant ought to have been assessed by a neuropsychologist to provide a rating for mental status and not a neurologist based on his findings and his thorough file review of the applicant’s neurological complaints. I place more weight on the evidence of Dr. Mendis than that of Dr. Kingston because Dr. Kingston was not made available for cross examination to explain his reasoning for providing a WPI % rating in this regard, without an assessment or rating from a neuropsychologist.

43For these reasons, on a balance of probabilities, I find that the applicant has not suffered an impairment in mental status and assigned 0% WPI in this category.

Oculo-visual impairment

44I find that the applicant has suffered a 2% WPI in his oculo-visual function as a result of the accident.

45The applicant originally submitted that he suffered a 9% WPI in oculo-visual impairments and relied on the assessment and report of Dr. Fortin, physiatrist. Dr. Fortin withdrew his rating in his addendum report and acknowledged that it is not within his scope of expertise to provide a rating for oculo-visual impairment in accordance with the AMA Guides. The applicant did not provide any further evidence in support of a rating for oculo-visual function.

46The respondent submits that the applicant has suffered a 0% WPI in his oculo-visual impairment as a result of the accident and relies on Dr. Ranalli’s neuro-ophthalmology report dated January 12, 2024, based on his neuropathology examination on November 28, 2023, and his testimony.

47The applicant argued that Dr. Ranalli’s examination of the applicant was incomplete because the applicant did not complete the Romberg test. The Romberg test, as explained by Dr. Ranalli, is a test where the applicant stands with their feet together like a soldier, but that the applicant was fearful of falling over so he did not push him to complete the test, as the test had previously been administered by Dr. Kingston.

48Dr. Ranalli noted that sometimes patients sub perform, or sometimes patients choose not to co-operate, so he draws on his experience to see if the symptoms are organic. Dr. Ranalli further testified that the applicant did not co-operate fully as he looked away many times during his examination of the applicant. However, Dr. Ranalli testified that he saw enough voluntary eye movements to know they were mainly intact.

49The applicant further submits that his examination was not complete because in his document review Dr. Ranalli did not review Dr. Maustavich’s optometry records.

50To this end, Dr. Ranalli testified that Dr. Maustavich’s CNRs would not have changed his opinion based on his neuropathology examination, because the imaging such as the CT-Scan and MRI taken are normal, there was no loss of consciousness by the applicant and that the applicant scored 15/15 on his GCOS eleven times by the paramedics on site, and that there were no direct claims of injury to the eye because of the accident.

51Dr. Ranalli further testified that the applicant’s use of prescription glasses or a hearing aid is not as a result of the accident but rather the goal of glasses or hearing aids is to correct for best corrected vision and for best corrected hearing, which according to Dr. Ranalli is the case for the applicant’s need for glasses and hearing aids. I accept Dr. Ranalli’s neuro-ophthalmology report and assessment of the applicant as being complete based on his testimony and because his testimony satisfied me that Dr. Maustavich’s CNRs would not have changed his medical opinion.

52Although the applicant has not advanced an Ocular-Visual WPI % rating from a qualified medical professional, the applicant does consistently complain about light sensitivity.

53During his cross-examination, Dr. Ranalli testified that some assessors provide a 2% WPI for light sensitivity and that he felt that was acceptable given that the applicant did present with the symptom, however, it was his fourth listed symptom, preceded by, headaches, dizziness, and floaters from an ocular-visual perspective.

54Based on Dr. Ranalli’s evidence and no WPI% rating from the applicant, I find on a balance of probabilities that the applicant has sustained a 2% WPI in his ocular-visual impairment as a result of the accident.

Dizziness/Vestibular impairment

55I find that the applicant has suffered a 10% WPI attributable to dizziness/vestibular impairment as a result of the accident.

56The applicant submits that as a result of the accident he has suffered a 20% WPI attributable to dizziness/vestibular impairment as a result of the accident. He submits that he requires assistance with his usual activities of daily living such as tying his shoes, putting on sweaters and that his wife now shaves his head. He submits that he only drives in emergency situations and that he is no longer able to maintain his commercial driver’s licence to work as a truck driver. The applicant relies on the report of Dr. Kus, otolaryngologist, dated January 3, 2023, arising from assessments conducted November 14, 2022, and November 16, 2022.

57The respondent argues that the applicant has suffered a 10% WPI attributable to dizziness/vestibular impairment as a result of the accident. The respondent relies on a report from Dr. Korman, otolaryngologist, dated January 12, 2024, arising from an assessment of the applicant on November 21, 2023. It argues that the etiology of the applicant’s symptoms is multifactorial and mostly related to post-concussion syndrome and anxiety. The respondent further argues that the applicant has sustained a class 2 vestibular impairment in accordance with chapter 9 of the AMA Guides.

58The applicant further submits that Dr. Korman’s assessment of the applicant was incomplete because he failed to administer the Romberg test and the Tandon Gait test to the applicant and as such does not believe that Dr. Korman’s WPI rating assigned to the applicant’s vestibular function is valid.

59Dr. Korman testified that the applicant declined to participate in the Romberg and Tandem Gait testing, which were to be performed at the end of his assessment. However, Dr. Korman was able to perform a forced hyperventilation test for sixty seconds on the applicant. This test, according to Dr. Korman, revealed that the applicant produced extreme dizziness and he opined that this was a result of significant anxiety and distress in the applicant, like the type of reaction one would have during a panic attack. Dr. Korman noted that the applicant’s anxiety and distress were also noted by other assessors and consistent with his own assessment of the applicant.

60Dr. Korman testified that although Romberg and Tandem Gait testing was not performed because the applicant decline to do so, his examination was detailed enough for him to render and stand by the WPI % rating as assigned because he performed his own examination, which included an audiology test a forced hyperventilation test and also head and pulse testing.

61I accept Dr. Korman’s testimony that his examination of the applicant was sufficient for him to render a WPI% rating regarding the applicant’s vestibular/dizziness impairment because Dr. Korman drew enough objective clinical findings through his examination and medical testing to warrant a WPI % rating regarding the applicant’s dizziness/vestibular function.

62Although both assessors agree that the applicant has an impairment of dizziness/vestibular, the assessors disagree on the classification level of impairment. The applicant submits that he has a class 3 vestibular impairment under chapter 9 of the AMA Guides, because his usual activities of daily living cannot be performed without assistance, except for simple activities such as self-care, some household duties, and riding in a motor vehicle operated by another person.

63Dr. Kus opined that given the applicant’s daily vertigo symptoms, reliance on family members for dressing, personal hygiene, and the applicant’s inability to drive, the applicant’s level of impairment falls within the class 3 level impairment.

64The applicant testified that due to his vertigo he can no longer participate in his activities of daily living in the way he used to. He testified that his vertigo brings on headaches and feels like the room is spinning even when he lays in bed. He is unable to watch hockey, hunt, fish, lift or play with his young child as he was able to pre-accident. He testified that he can no longer be employed as a truck driver as he would not pass the physical for a DZ driver’s licence. He feels like he is a burden to everyone as his wife now shaves his head and helps him to put on shoes and helps him put on sweaters.

65While I accept that the applicant’s activities of daily living are not at a pre-accident level, I do not agree that his level of impairment ought to be classified as a class 3 but rather his impairment is more consistent with a class 2 vestibular impairment for the following reasons.

66Chapter 9 of the AMA Guides defines a Class 2 vestibular impairment in which the usual activities of daily living are performed without assistance, except for complex activities. While I accept that putting on shoes or a sweater are not complex activities of daily living, I find the applicant’s difficulty with putting on a sweater arises due to his documented neck pain. Further, it is not clear from the evidence before me whether his inability to tie his shoes is due to back pain, dizziness, shoulder pain or a combination of all. While I accept there may be a degree of dizziness that could factor into tying one’s shoe, I was not pointed to evidence that the applicant’s vestibular/dizziness impairment is the sole reason for him having difficulty with tying his shoes.

67I accept a 10% WPI rating for dizziness/vestibular impairment because the applicant can drive a motor vehicle, which is contrary to the applicant’s self reporting to both Dr. Kus and Dr. Korman that he was unable to drive. The applicant continues to maintain/qualify for a valid driver’s licence since the accident and continues to drive at times.

68Although he testified that his wife and In-laws have been extremely helpful and drive him to most of his medical appointments, the applicant testified that he does drive, however not very often or far. This is supported by the evidence of Dr. Heeney, his family physician, as Dr. Heeney testified that she has not suspended the applicant’s driver’s licence and did not feel that it was necessary.

69When put to Dr. Korman during his testimony that the applicant can drive and has a valid driver’s licence, Dr. Korman testified that it would not be right for an individual with a class 3 impairment and a 20% WPI in dizziness/vestibular to operate a motor vehicle, which is further supportive of Dr. Korman’s view that the applicant has a class 2 vestibular impairment that translates to a 10%WPI attributable to the applicant’s accident-related impairments to his dizziness/vestibular function.

70Without the testimony or any further evidence from Dr. Kus regarding the applicant’s ability to operate a motor vehicle and the effect it would have on the assigned WPI%, I place more weight on the evidence of Dr. Korman, as he was made available for cross-examination to explain his objective medical findings, and the associated WPI rating for an individual who operates a motor vehicle.

71I find on a balance of probabilities that the applicant has sustained a 10% WPI in his dizziness/vestibular function as a result of the accident.

Impairment of Mastication and Deglutition

72I find that the applicant has sustained a 4% WPI in mastication and deglutition.

73The applicant submits that he suffered a 4% WPI of his mastication and deglutition as a result of the accident and relies on the report of Dr. Kus, otolaryngologist. He submits that he has pain in his jaw and is unable to chew hard textured foods and relies on a modified diet because of his TMJ derangement.

74The respondent argues that the applicant does not suffer any impairment of his mastication and deglutition as a result of the accident and therefore has been assigned a 0% WPI. The respondent relies on the report and testimony of Dr. Korman, otolaryngologist.

75The respondent further argues that the applicant is essentially tolerating a normal diet, the applicant reports subjective TMJ discomfort, and the physical examination does not reveal major anatomical derangement of the TMJ. Dr. Korman did not provide a WPI rating because of his clinical findings, however he points out that further investigation from an oral surgeon would be appropriate given the applicant’s subjective reporting.

76Dr. Kus acknowledged in his addendum report that no oral surgeon had ever assessed the applicant, however his examination of the applicant revealed tenderness to the TMJ palpation and mild left TMJ crepitus as well as anterior subluxation of the left TMJ with mouth opening.

77I am persuaded by the applicant’s testimony and the corroborating testimony of his wife Angela Sandham that the applicant does rely on a simple diet of soft foods such a soups, rice, and pastas. As there is no formal assessment or report by an oral surgeon, I accept Dr. Kus’ 4% WPI rating as the applicant cannot eat certain foods such as meat without it being cut up in small pieces or ground up due to jaw pain.

78I find on a balance of probabilities that the applicant has sustained a 4% WPI in his impairment of mastication and deglutition as a result of the accident.

Hearing loss/Tinnitus

79I find that the applicant has sustained a 1% WPI rating for hearing loss and a 5% WPI for tinnitus as a result of the accident.

80The applicant submits that he has a 1% WPI for hearing loss and a 5% WPI for tinnitus as a result of the accident. The applicant submits that he has difficulty hearing and requires a hearing aid and that he is experiencing tinnitus (ringing in the ear) which have a negative effect on his daily quality of life.

81The respondent argues that the applicant has sustained a 4% WPI for hearing loss and argues that subjective tinnitus on its own is ratable in accordance with the AMA Guides as set out in chapter 9, however it is difficult to measure. Given the applicant’s complaints, Dr. Korman assigned a WPI%, however Dr. Korman added his percentage of tinnitus rating to the applicant’s hearing loss, which resulted in a 4% WPI.

82Although they each take a different approach to the interpretation of the AMA Guides, I find the assessors’ results do not substantially differ. I find that Dr. Kus’s interpretation of the Guides is supported by Chapter 9 of the AMA Guides, which states that an impairment percentage of up to 5% for tinnitus may be added to the impairment for hearing loss.

83For this reason, on a balance of probabilities, I find that the applicant has sustained a 5% WPI for tinnitus and a 1% WPI for hearing loss as a result of the accident.

Lumbosacral Spine Impairment

84I find that the applicant has not sustained an accident-related impairment in his lumbosacral spine and therefore assigned a 0% WPI.

85The applicant submits that he has suffered a 5% WPI in his lumbosacral spine as a result of the accident. He submits that he has lower back and hip pain that he did not have prior to the accident. The applicant relies on the report of Dr. Fortin, physiatrist, dated November 1, 2022, from his assessment performed on the same day.

86The respondent argues that the applicant has not suffered an impairment in his lumbosacral spine as a result of the accident and that the applicant has a pre-existing condition that results in sciatic symptomology from a workplace accident. Further, the respondent argues that pain is not a measurement of permanent impairment according to the AMA Guides. The respondent relies on the testimony and report of Dr. Mathoo, physiatrist, dated January 12, 2023, based on his assessment of the applicant on December 19, 2023.

87Dr. Fortin acknowledged that the applicant had sustained a lower back injury in or around 2004/2005 and that the applicant had developed right-sided sciatica symptoms, but that his pain completely resolved without any residual pain or functional sequelae for several years leading up to the subject accident. He also acknowledged that the applicant’s impairment rating was in part based on the applicant developing low back pain and stiffness approximately two days following the accident.

88Dr. Fortin’s physical examination of the applicant was notable for right paralumbar tenderness and muscle guarding. He was substantially limited in forward flexion and the applicant described that pain with flexion was more severe compared with movements in other directions. Dr. Fortin assigned a 5% WPI based on the applicant satisfying the requirements of a DRE Lumbosacral category II.

89In contrast, Dr. Mathoo documented a completely normal examination of the lumbar spine. Dr. Mathoo opines that based on his assessment there are no current clinical signs of lower back injury. The applicant maintains normal active motion of the lumbar spine through all planes. He demonstrated full active range of motion of the lumbar spine through 60 degrees of true lumbar flexion, 25 degrees extension and 25 degrees of side flexion bilaterally as measured by a dual inclinometer. No pain was reported along the lumbar spine with lumbar spine movements, he did not report tenderness along the midline or paralumbar areas and there were no areas of appreciable muscle guarding, spasm, or trigger points.

90Dr. Mathoo concludes that there is no current clinical sign of back injury. The applicant maintains normal active motion of the lumbar spine through all planes. His condition is over two years old and considered to be stable. Dr. Mathoo’s opinion, this equates to a category 1 DRE impairment of the lumbosacral spine, or 0% WPI.

91The degree of DRE impairment within the AMA Guides is an area of the assessors’ disagreement. Although both Dr. Fortin and Dr. Mathoo testified, I place more weight on the evidence of Dr. Mathoo because I find that Dr. Fortin’s assessment of the applicant was not complete because he did not perform range of motion testing.

92Dr. Mathoo testified that a DRE II type impairment according to the AMA Guides would require the applicant to have a permanent impairment, with documentation of a neurological or radiculopathy nature. In the absence of these impairments, he opines that the applicant falls within the DRE I. Further, I find that Dr. Fortin did not perform the proper testing because range of motion testing was not performed in accordance with the AMA Guides. Dr. Fortin provided his rating based on a hip measurement methodology.

93Although Dr. Mathoo did not find any permanent impairment related to the applicant’s lumbosacral spine, the applicant did report sciatic symptoms which he attributed to a pre-existing condition from a workplace accident sometime in 2004/2005 and informed Dr. Mathoo that the symptoms are no worse post-accident then they were pre-accident. Further, the applicant attended an insurers examination on October 31, 2022, with Dr. Kingston, one day after his examination by Dr. Fortin, however, Dr. Kingston’s assessment shows there was no complaint of lower back pain.

94The applicant’s reporting of varying degrees of injuries/pain/impairment, or lack thereof, is also evident in relation to his lumbosacral spine impairment. Dr. Heeney, the applicant’s family doctor, testified that the applicant did not have any pre-existing complains of back pain. Although possibly resolved prior to her being the applicant’s family doctor, she was unaware of any workplace accident related to the applicant’s lower back as these concerns were infrequently reported in her clinical notes and records nor was it identified by the applicant to all his assessors.

95Notwithstanding the applicant’s pre-existing symptomology of sciatica, I find that Dr. Fortin did not complete the proper testing in accordance with the AMA Guides because he did not perform range of motion testing and therefore, I assign more weight to the findings of Dr. Mathoo.

96I find that on a balance of probabilities the applicant has sustained a 0% WPI in his lumbosacral spine as a result of the accident.

Combined Values Analysis under Criterion 6

97I find that as a result of the accident the applicant has sustained a 37% WPI under Criterion 6.

98In accordance with my findings, I applied the combined values chart to be used in accordance with the AMA Guides to be as follows:

Areas of Impairment	Tribunal’s Finding
Dizziness/vestibular	10%
Sleep	9%
Headaches	5%
Cervicothoracic spine	5%
Tinnitus	5%
Mastication and deglutition	4%
Medication effects	3%
Oculo-visual	2%
Hearing loss	1%
Under Criterion 6	37%

99Accordingly, I find on a balance of probabilities that the applicant is not catastrophically impaired under Criterion 6.

The applicant does not suffer from a catastrophic impairment under Criterion 7

100I find that the applicant has not demonstrated, on a balance of probabilities, that he has a combination of physical and psychological impairments as a result of the injuries sustained in the accident that results in a WPI of 55% or more.

101To meet the threshold of catastrophic impairment under Criterion 7, the applicant must prove that he has a combination of physical and psychological impairment ratings from medical professionals that meet the 55% WPI threshold. The psychological impairment rating is determined in accordance with the methodology in Chapter 14, Section 14.6 of the American Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008 (“Guides, 6th Edition”) and is combined with the physical WPI rating from the Guides, 4th Edition using the Combined Values Table. An impairment percentage derived by means of the Guides, 4th Edition is intended to represent an informed estimate of the degree to which an individual’s capacity to carry out daily activities has been diminished.

102Both the applicant and the respondent agree that as a result of the accident the applicant has sustained a 10% WPI attributable to his mental and behavioral impairments, per the rating assigned by Dr. Braganza, the applicant’s assessor.

103Having found that the applicant has sustained a 37% WPI rating under Criterion 6 for his physical impairments, I will add 10% WPI, as agreed to by the applicant and the respondent, attributable to the applicant’s mental or behavioral impairment in accordance with the combined values chart.

104This results in 37% + 10% = 43% WPI under Criterion 7 In accordance with the combined values chart provided by the AMA Guides.

105Accordingly, I find that the applicant has not met his onus to prove that he is catastrophically impaired in accordance with the AMA Guides under Criterion 7.

106I find on a balance of probabilities that the applicant is not catastrophically impaired as a result of the accident in accordance with the AMA Guides under Criterion 6 & 7.

The disputed Treatment Plans

107To 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.

108Notwithstanding s.15 and s.16 of the Schedule, the accident occurred on January 20, 2020, and in its closing remarks the respondent argued that I must turn to s. 20 of the Schedule.

109According to s.20 of the Schedule, medical, rehabilitation and attendant care benefits are not payable for expenses beyond 260 weeks or 5 years unless the person is under the age of eighteen, has catastrophic injuries or has purchased optional benefits.

110Although I have found that the applicant has not sustained a catastrophic impairment as a result of the accident, s. 20 does not apply because the treatment plans were submitted by the applicant prior to the 260-week mark. Therefore s. 20 does not apply. It is also important to note that the non-catastrophic funding limits have not been exhausted as there is approximately $30,000.00 remaining.

Medical Devices

111The applicant is entitled to $8,871.62 for medical devices, proposed by St. Joseph’s Health Care London in a treatment plan dated February 17, 2023.

112The applicant submits that a NuStep T4r model walking device for use at home is of great value as he attributes his medical gains to the machine as he has used this machine during his treatment with physiotherapists at St. Joseph’s Health Care. The treatment plan lists the goals of the NuStep walking device as follows: assist with pain reduction, increase strength, increase range of motion.

113The respondent argues that this NuStep has done nothing to relieve the applicant’s pain and that the applicant has not proven it to be reasonable and necessary. However, the respondent did not provide a denial letter as evidence to the Tribunal, therefore I am unable to establish why the respondent denied that treatment plan and why it believes that the NuStep is not reasonable or necessary.

114I accept the applicant’s treating physiotherapist Brian Bannon’s opinion that obtaining this device for home use will allow the applicant to perform cardiovascular exercise daily without being limited by balance difficulties, dizziness, nausea, and neck/back pain as he typically would with walking or weightbearing exercise.

115Finally, I accept the applicant’s testimony that the NuStep cross trainer is a low impact machine that helps with his pain, mobility and that he would use it everyday as he has gained approximately thirty pounds since the accident due to mobility issues and that using the cross trainer also helps relieve his anxiety.

116I find on a balance of probabilities that the applicant is entitled to $8,871.62 for medical devices, proposed by St. Joseph’s Health Care London in a treatment plan dated February 17, 2023.

Catastrophic Impairment Assessments

117The applicant submits that he is entitled to $8,305.50 ($24,577.50 less $16,272.00 approved) in outstanding catastrophic impairment assessments by Omega Medical Associates from a treatment plan/OCF-18 dated July 27, 2022. While the applicant submits that the assessments are reasonable and necessary I was not pointed to evidence that is supportive of the applicant’s entitlement to the remaining balance of the catastrophic impairment assessments.

118The respondent argues that the denied portion of the catastrophic impairment assessments are not reasonable and necessary and that they were denied on the basis that the outstanding assessments had already been conducted or exceeded the amount of $2,000.00 plus HST in accordance with s.25(5)(a) of the Schedule.

119I find that the applicant is not entitled to $8,305.50 for the outstanding catastrophic impairment assessments because the amounts denied were either duplicative or not reasonable and necessary because the amounts sought for an assessment was encompassed in another assessment, for example.

120The denials consisted of an intake and triage assessment for $2,000.00, an ENT assessment for $3,500.00 (of which $2,000.00 was approved in accordance with the Schedule) as an insurer shall not pay more than a total of $2,000.00 plus any applicable HST payable in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured per or the insurer.

121In addition, $350.00 was denied for a hearing test which was included in the ENT assessment, $1,500.00 for Line 6-Vestibular testing which the insurer also opined was encompassed within the ENT assessment therefore making it duplicative, and a Line 8 mental/behavioral assessment in relation to Criterion 8 for $2,000.00 because the insurer opined that this was duplicative because it was encompassed in the psychological assessment under criterion 7.

122Accordingly, on a balance of probabilities I find that the applicant is not entitled to the disputed catastrophic impairment assessments because they have not met their burden to demonstrate why the unapproved line items are reasonable and necessary.

Neurovisual Assessment

123I find that the applicant is entitled to $1,200.00 for a neurovisual assessment.

124The applicant submits that he is entitled to $1,200.00 for a neurovisual rehabilitation assessment, proposed by London Vision Development Centre in a treatment plan dated November 14, 2023.

125The goal of the assessment plan includes a full binocular vision evaluation, visual information processing evaluation, prism testing, filter and tint testing, midline shift testing, oculomotor testing, among others. The assessment also includes a full medical legal report and communication with adjusters, lawyers, and any other professionals. This determines if there are visual issues that resulted from the motor vehicle accident, intracranial injury and or post-trauma vision syndrome.

126In her closing remarks, the applicant’s counsel further submits that the respondent erred in denying this benefit in accordance with s.38(8) of the Schedule and asked that I consider s.38(8), while not pointing to any reasons as to why the applicant believes that the notice was deficient.

127Section 38(8) of the Schedule requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s.38(11), if an insurer fails to comply with its obligations under s. 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice describe in s. 38(8).

128On November 28, 2023, the respondent denied the assessment plan based on the medical information provided and because the applicant had been assessed by neuro-ophthalmologist Dr. Ranalli via a s.44 insurer’s examination. In addition, the denial letter states that the assessment does not provide a rationale for the need for a Neuro-Visual rehabilitation assessment when a diagnosis of a concussion and post concussive syndrome has already been identified.

129Finally, the denial letter further states that if the applicant’s family doctor or treating practitioner has additional medical information for the respondent to consider about their injuries, the applicant was invited to submit it.

130However, I find Dr. Ranalli’s s.44 assessment was to take place on November 28th, 2023, the same date as the denial letter for the disputed assessment plan. Further, the letter states that the insurer will provide the applicant with an updated response to the proposed treatment and assessment plan after receipt of the catastrophic s.44 neuro-ophthalmologist report, however I was not pointed to a follow up assessment or report from Dr. Ranalli that specifically relates to the treatment plan in dispute.

131Finally, I find this denial to be confusing because the proposed assessment is not in relation to a catastrophic determination as the goals of the treatment plan are clearly stated above and the respondent in its denial acknowledged that a diagnosis of a concussion and post concussive syndrome has already been made and this assessment is to identify, from a neurovisual perspective, the impairments associated with such a diagnosis, and not catastrophic impairment, which was the basis for the scheduled s. 44 examination.

132I find on a balance of probabilities that the denial for a Neuro-Visual assessment is not compliant with s. 38(8) because the medical and other reasons provided are not sufficient to explain why the proposed assessment was denied and therefore the applicant is entitled to $1,200.00 for a Neuro-Visual assessment in accordance with s.38(11) of the Schedule.

The applicant seeks costs from the respondent

133I find that the respondent is not liable to pay costs in the amount of $5.000.00 to the applicant.

134Rule 19.5 states that in considering whether to award costs, I must consider all relevant factors, including the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to other parties and the potential impact an order for costs would have on individuals accessing the Tribunal system.

135In her closing remarks, the applicant’s counsel sought $5,000.00 in costs from the respondent because she alleges that it acted frivolously and in a vexatious manner when the respondent omitted various records from the joint document brief without the consent of the applicant, causing the applicant’s counsel to allocate additional resources to complete a supplementary brief.

136The respondent argues that they were agreeable to most documents in the joint document brief except for three because they were not disclosed in accordance with the Case Conference Report and Order. Further, the respondent’s counsel argues that it was the applicant who was acting frivolously and in a vexatious manner as they tried to add a witness to the proceeding who was not listed in the Case Conference Report and Order.

137I find that the respondent is not liable to pay costs. I find that not including documents that were not identified in the Case Conference Report and Order or disclosed in accordance with the disclosure of document deadlines listed in the Case Conference Report and Order, in a joint brief is not behaviour that attracts costs.

138Although it is helpful and efficient for the parties to provide the Tribunal with a joint document brief, it is not always feasible to do so and the Tribunal recognizes this as the Case Conference Report and Order reads that, when possible, the parties are to file a joint document brief. In other words, it is preferred but not mandatory and the inability to agree does not, on its own, warrant a costs award.

139Costs at the Tribunal are not intended to reimburse or indemnify parties for expenses incurred in litigation. I find that the respondent did not interfere in the process and a fair and efficient hearing was held.

140The applicant is not entitled to $5,000.00 in costs from the respondent.

Interest

141Pursuant to s. 51 of the Schedule, interest is owing on $8,871.62 for medical devices and $1,200.00 for a neurovisual rehabilitation assessment.

ORDER

142It is ordered that:

i. The applicant is not catastrophically impaired under Criterion 6 & 7.

ii. The applicant is not entitled to $8,305.50 ($24,577.50 less $16,272.00 approved) for catastrophic impairment assessments.

iii. The applicant is entitled to $8,871.62 for medical devices.

iv. The applicant is entitled to $1,200.00 for a neurovisual rehabilitation assessment.

v. The applicant is not entitled to $5,000.00 in costs from the respondent.

vi. Interest applies only to $8,871.62 and $1,200.00.