Licence Appeal Tribunal File Number: 23-009587/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:
Alexandra Swire
Applicant
and
Zenith Insurance Company
Respondent
DECISION
ADJUDICATOR:
Gareth Neilson
APPEARANCES:
For the Applicant:
Alexandra Swire, Applicant
Julie Kern, Counsel
Karen Mara, Law Clerk
For the Respondent:
Jennifer McGlashan, Counsel
Michelle Qiu, Counsel
Thomas Kurasiewicz, Associate
Court Reporter:
Leigh Masse
Heard by Videoconference:
August 6, 2024
OVERVIEW
1Alexandra Swire, the applicant, was involved in an automobile accident on July 20, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The majority of the hearing surrounded the argument of whether or not the applicant has been catastrophically impaired under the Schedule. The applicant argued that they had a marked impairment in the categories of Adaptation, Activities of Daily Living and Concentration, Persistence and Pace. The main issue is issue in dispute involves whether or not the applicant should be deemed catastrophically impaired based on Criterion 8.
3It was agreed by all parties that the current paid to date on the file is $58,537.89.
PRELIMINARY ISSUES
4The respondent objected to the testimony of some of the applicant’s witnesses. The respondent argued that Dr. Ramji was not an impartial witness as they have a personal relationship with the applicant. The respondent also argued that the testimony of Isabelle Zonenberg should not be allowed as it is hearsay evidence.
5The applicant agreed that Dr. Ramji has a personal relationship with the applicant but he is being called as a family witness not an expert. The applicant argued that Ms. Zonenberg is a part of the assessment team at Q Medical and her evidence and testimony is important.
6Since Dr. Ramji is being called as a lay witness, he was allowed to testify. The applicant withdrew Ms. Zonenberg as a witness. The reports of Ms. Zonenberg are admissible.
ISSES
7The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to $2,518.44 for chiropractic services, proposed by Q Medical in a treatment plan/OCF-18 (“plan”) submitted August 31, 2022 and denied September 20, 2022?
iii. Is the applicant entitled to medical services proposed by E-Clinic United Healing, as follows:
$34,100.00 for psychological services, in a plan submitted July 17, 2023 and denied August 18, 2023; and
$1,983.40 for chiropractic services, in a plan submitted November 8, 2022 and denied November 22, 2022?
iv. Is the applicant entitled to medical services proposed by Scarborough Medical Centre, as follows:
$2,883.20 for chiropractic services, in a plan submitted September 29, 2021 and denied October 14, 2021;
ii. $2,396.00 for assistive devices, in a plan submitted September 8, 2021 and denied September 22, 2021;
iii. $3,192.27 for psychological services, in a plan submitted December 3, 2021 and denied December 17, 2021;
$4,326.14 for chiropractic services, in a plan submitted December 3, 2021 and denied January 17, 2022;
$3,192.27 for psychological services, in a plan submitted January17, 2022 and denied February 17, 2022;
$25,619.01 for rehabilitation support worker services, in a plan submitted February 15, 2022 and denied March 1, 2022; and vii. $850.00 for a nutritional assessment, in a plan submitted August 24, 2021 and denied September 8, 2021?
v. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Unika Medical Centre in a plan submitted January 7, 2022 and denied February 2, 2022?
vi. Is the applicant entitled to $1,281.42 for payment of an invoice from Mobile Home Care for attendant care services, denied September 2, 2021?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
8The applicant is not deemed to be catastrophically impaired as defined by the Schedule.
9The applicant is not entitled to any of the treatment plans or assessments that are in dispute.
10The respondent is not liable to pay an award.
11The applicant is not entitled to interest on any overdue payments.
ANALYSIS
What is catastrophic impairment under Criterion 8?
12The issue before the Tribunal is whether the applicant has demonstrated, on a balance of probabilities, that as a result of a motor vehicle accident she sustained an accident-related impairment defined as catastrophic by the Schedule.
13Criterion 8 determinations under the Schedule employ the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (AMA Guides). The AMA Guides set out four 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).
14The AMA Guides refer to five levels of impairment within each domain: no impairment, mild impairment, moderate impairment, marked impairment and extreme impairment. The levels are explained in the Table below:
Area of Functioning:
Class 1: No Impairment
Class 2: Mild Impairment
Class 3: Moderate Impairment
Class 4: Marked Impairment
Class 5: Extreme Impairment
Description:
No impairment noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning.
15An impairment is catastrophic under Criterion 8 of the Schedule if, as a result of a mental or behavioural disorder, a person has an “extreme” level of impairment in any one of the four functional domains or has a “marked” level of impairment in at least three of the four functional domains. The onus is on the applicant to demonstrate this on a balance of probabilities.
Has the applicant sustained a catastrophic impairment as defined by the Schedule?
16I find that the applicant is not catastrophically impaired. The applicant failed to meet the test under the Schedule to be deemed catastrophically impaired.
Impairment under the Activities of Daily Living Sphere
17The AMA Guides specify that activities of daily living include self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitation in these activities should be related to the person’s mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual’s overall situation. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
18The applicant relies primarily on the evidence and testimony given by Dr. William Gnam (Psychiatrist) who conducted a multidisciplinary assessment of the applicant that lasted 175 minutes. Dr. Gnam found the applicant to have a CAT 4 marked impairment under the Activities of Daily Living Sphere. Dr. Gnam opined that the applicant had some challenges with mental health prior to the accident including sleeping difficulties and panic attacks. Dr. Gnam opined that these issues became worse after the accident and that she suffered from cognitive impairments that impact her Activities of Daily Living. After completing the assessment, Dr. Gnam concluded that the applicant suffered from Persistent Depressive Disorder. Dr. Gnam also concluded that the applicant suffered from general anxiety and Somatic Symptom Disorder.
19The respondent primarily relied on the evidence from Dr. Christopher Hope (Psychologist), Mr. Gord Hirano (Occupational Therapist). Mr. Hirano did a comprehensive in-home assessment with the applicant that lasted for 105 minutes. Mr. Hirano had the applicant conduct what would be considered to be activities of daily living in the home and found that the applicant did not was very independent and was able to complete tasks freely. Mr. Hirano noted that the applicant is able to live independently so an Attendant Care Assessment was not needed. Mr. Hirano concluded this because he was able to observe the applicant taking care of her personal hygiene, laundry, eating and other normal activities of daily living.
20Dr. Christopher Hope conducted a comprehensive assessment of the applicant which lasted over 5 hours. Dr. Hope administered many psychological tests on the applicant and found that the applicant was over reporting to other assessors. Dr. Hope concluded that the applicants testing was invalid due to improper effort and negative response bias. Dr. Hope opined that it is highly unlikely that the applicant suffered a traumatic brain injury as a result of the accident. Dr. Hope found no evidence that the applicant was cognitively impaired.
21I prefer the evidence and testimony of the respondent. The assessments done by the respondent were far more comprehensive. I am not persuaded that the applicant has met their onus proving that they suffer from a marked impairment in the sphere of Activities of Daily Living. The evidence shows that the applicant does not suffer from any cognitive impairments, nor does she struggle with completing normal tasks in life. I also accept the evidence of Dr. Hope that the testing of the applicant should be deemed to be invalid due to a negative response bias.
22As I have found that the applicant does not have a marked impairment in the sphere of Activities of Daily Living, I need not comment on the two other spheres in dispute.
23The applicant is not entitled to any of the treatment plans or the assessment plan in dispute.
24To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
25The applicant relies on the evidence and testimony of Dr. Gnam and Occupational Therapist Zonenberg to show that the applicant is in need of the treatment plans in dispute. As mentioned, Dr. Gnam concluded that the applicant suffered from Persistent Depressive Disorder as well as general anxiety and Somatic Symptom Disorder. Dr. Gnam opines that the applicant needs continual therapy to help with her disorders and the pain associated with it. Occupational Therapist Zonenberg argues that the applicant needs help around the house to complete daily tasks.
26The respondent offers evidence from the previously mentioned experts as well as Dr. Sivasubramanian (Psychiatrist) who opined that the applicant had reached maximum recovery and did not need any further treatment.
27The evidence presented to the Tribunal show that the applicant significantly benefited from the treatment that she received. While the applicant does show to a reasonable degree what the goals of the treatment plans are, they have not been able to show that the treatment plans in dispute are reasonable and necessary. Based on the evidence presented to the Tribunal my conclusion is that the applicant has reached maximum medical recovery and therefore there is no justification to award the applicant any of the treatment plans or the assessment plan in dispute.
Interest
28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant is not entitled to any of the issues in dispute, no interest applies.
Award
29The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As the respondent did not withhold any benefits to the applicant, no award is granted.
ORDER
30I order the following:
i. The applicant is not deemed to be catastrophically impaired as defined under the Schedule.
ii. The applicant is not entitled to any of the treatment plans or the assessment in dispute.
iii. No interest is due.
iv. The applicant is not entitled to an award.
Released: June 10, 2025
Gareth Neilson
Adjudicator