Licence Appeal Tribunal File Number: 24-005370/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:
Igor Genshenza
Applicant
and
Certas Home and Auto Insurance
Respondent
DECISION
VICE-CHAIR:
Robert Maich
APPEARANCES:
For the Applicant:
Ramendeep Minhas, Counsel
For the Respondent:
Melinda Baxter, Counsel
HEARD by Videoconference:
March 24, 25 and 26, 2025
OVERVIEW
1Igor Genshenza, the applicant, was involved in an automobile accident on May 14, 2021, 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, Certas Home and Auto Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to $4,390.64 for psychological treatment, proposed by 101 Assessments in a treatment plan/OCF-18 (“plan”) dated October 27, 2022?
iii. Is the applicant entitled to $2,460.00 for an occupational therapy assessment proposed by 101 Assessments in a plan dated August 6, 2024?
iv. Is the applicant entitled to $508.50 for transportation expenses, submitted on a claim form (OCF-6) dated January 11, 2023?
v. Is the applicant entitled to $991.00 for transportation expenses, submitted on a claim form (OCF-6) dated January 10, 2023?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The application is granted in part.
4The Tribunal finds as follows:
i. The applicant has not sustained a catastrophic impairment as defined by the Schedule.
ii. The applicant is entitled to $4,390.64 for psychological services, as proposed by 101 Assessments in a plan dated October 27, 2022.
iii. The applicant is entitled to $2,460.00 for an occupational therapy assessment, proposed by 101 Assessments in a plan dated August 6, 2024.
iv. The applicant is not entitled to $508.50 for transportation expenses, submitted on a claim form (OCF-6) dated January 11, 2023.
v. The applicant is not entitled to $991.00 for transportation expenses, submitted on a claim form (OCF-6) dated January 10, 2023.
vi. The applicant is entitled to interest on any overdue payment of benefits.
ANALYSIS
Has the applicant sustained a catastrophic impairment?
5The applicant has not sustained a catastrophic impairment as defined by the Schedule under either criterion 7 or 8.
6The applicant submits his accident purported impairments are:
i. Somatic Symptom Disorder with predominant pain
ii. Major Neurocognitive Disorder and Adjustment Disorder with Mixed Anxiety and Depressed Mood;
iii. Chronic and Specific Phobia, Situational;
iv. Post-concussive Syndrome consistent with Traumatic Brain Injury;
v. Post-Traumatic Headaches with Occipital Neuralgias;
vi. Vertigo consistent with benign Paroxysmal Positional Vertigo;
vii. C8 Cervical Radiculopathy left sided;
viii. S1 Lumbosacral Radiculopathy right sided;
ix. Sternal Fracture;
x. Musculoskeletal Soft-Tissue Injuries.
Domains of Function – Criterion 8
7The Schedule identifies the required criteria to meet the legal test for catastrophic impairment under Criterion 8 at s. 3.1(1)8. Specifically, the Schedule defines a Criterion 8 impairment as follows:
…an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder…
8Therefore, for the applicant to be found to have sustained a catastrophic impairment pursuant to Criterion 8 of the Schedule, he must be found to have sustained a marked impairment (class 4) in at least three domains of function, or be found to have sustained an extreme impairment (class 5) in one or more domains of function.
9The American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”) provides for four domains of function, specifically:
Activities of daily living: including adaptive activities, such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring for self, grooming, using the telephone and directory, using the post office, and working.
Social functioning: ability to get along with others, including family members, friends, neighbors, grocery clerks, landlords, and others of the public; social functioning in work situations may involve responding appropriately to persons in authority and cooperative behavior toward coworkers.
Concentration, persistence, and pace (task completion): this refers to the patient’s ability to sustain focused attention long enough to permit the completion of everyday tasks in the workplace or home, including deficiencies in concentration, persistence, and pace that have been observed at work or in work like settings and information from the mental status examination and from psychological testing.
Deterioration or decompensation in work like settings: describe failures to adapt to stressful circumstances that cause the individual either to withdraw from the situation or to experience signs and symptoms and difficulties with activities of daily living, social relationships, and concentration, persistence, and pace including any decompensation at work, which might involve decisions, attendance, schedules, completing tasks, interactions with supervisors and peers.
10Whether an insured person suffered a catastrophic impairment under Criterion 8 is a legal test of impairment under s. 3(1)(8) of the Schedule, and it is considered in accordance with the Guides. Chapter 14 of the Guides set out the four spheres of functioning and the classification of impairments, as represented in the chart below:
Area or Aspect of Functioning
Class 1:
NO Impairment
Class 2:
MILD Impairment
Class 3:
MODERATE Impairment
Class 4: MARKED Impairment
Class 5:
EXTREME Impairment
Activities of Daily Living
No impairment is noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some, but not all useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning
Social Functioning
Concentration, Persistence and Pace
Adaptation (In a work-like setting)
11The applicant submits that he sustained a marked impairment in the domains of Activities of Daily Living, Social Functioning and Adaptation. The applicant submitted that a mild impairment was sustained in the domain of Concentration, Persistence and Pace.
12The respondent submits that the applicant sustained a mild impairment in the domains of Activities of Daily Living and Social Functioning; no impairment in the domain of Concentration, Persistence and Pace; and a marked impairment in the domain of Adaptation.
Activities of Daily Living
13I find the applicant did not sustain a marked impairment under the domain of activities of daily living.
14The Guides specify that activities of daily living functioning incudes self-care, personal hygiene, communication, ambulation, travel, sexual functioning, sleep, and social and recreational activities. Any limitations in these activities should be related to the mental disorder. In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction. What is assessed is not the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
15The applicant submitted that he sustained a marked impairment as his self-care tasks are completed with discomfort, difficulty bending and decreased motivation; he is unable to complete his household responsibilities; his sleep is disturbed by pain, waking frequently during the night leading to becoming easily fatigued during the day when he must walk or engage in in activities; and he suffers from vehicular trepidation, resulting in symptoms such as elevated heart rate, tightness in his chest, abdominal discomfort and a sense of helplessness. Dr. Hasan, psychiatrist, concluded in his report of December 20, 2022 that the applicant could no longer perform his housekeeping and home maintenance duties due to his pain and physical limitations. I note Dr. Hasan did not attribute the applicant’s psychological condition as the cause of his inability to contribute to household duties, however, he did make a diagnosis of somatic symptom disorder. I further note that the applicant testified he was unable to perform household duties without specific explanation as to why he could not contribute.
16The respondent submitted that the applicant sustained a mild impairment in this domain, as his impairments mostly relate to weakness in his left hand and numbness in his left leg; he is mostly independent in this self-care activities; he is able to go shopping alone and handle shopping items, including groceries; and has no significant anxiety when driving, but only anxiety as a passenger. The insurer’s assessor, psychiatrist Dr. Eisen, remarked in his report of April 12, 2024 that the applicant is in better overall condition than many peers of his age. Dr. Eisen also stated there was no support for the diagnosis of somatic symptom disorder made by Dr. Hasan.
17I find the applicant has not sustained a marked impairment under the domain of activities of daily living. He is able to engage in self care independently; drive sufficient distance to attend to his needs, such as groceries; and is able to complete most tasks within this domain, albeit with some difficulty and discomfort. I accept that the applicant has some degree of driver anxiety when a passenger, but not when driving himself for regular tasks such as groceries, which I find does not support a marked impairment. I note that he is still able to fish, but not on the sportfishing scale he previously enjoyed. I find the applicant did not discharge his onus, on a balance of probabilities, to prove a marked impairment in this domain because I find he is capable of completing most of his activities of daily living with independence, appropriateness, effectiveness, and sustainability.
Social Functioning
18I find that the applicant did not meet his onus to establish that he sustained a marked impairment under the domain of social functioning.
19The 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.
20The applicant submitted that he has become socially isolated and does not spend quality time with his family or friends due to his depressed emotional state, poor energy, irritability-inciting guilt, heightened anxiety, and difficulty with pain. He testified that he has lost his optimistic attitude, laments reliance on others, and he is preoccupied with pain, fatigue and his deteriorating physical and psychological condition. Further, he testified that he is unable to return to his usual recreational activities, such as sport fishing.
21The respondent submitted the applicant continued to socialize with his friends, but lost some friends who “were not true friends,” who retreated from him after the applicant could no longer take them fishing on his boat, as reported and quoted by insurer’s assessor, Dr. Eisen in his report of May 14, 2021. Dr. Eisen further described that the applicant reported he continued to socialize with some friends periodically, and that he has an “amazing” relationship with his wife, children and grandchildren, although he also described himself and his wife as stubborn and “complicated” and often butting heads prior to the accident. Dr. Eisen also noted that the occupational therapy report of Curtis Wong, OT, dated April 12, 2024, demonstrated a normal range of affect, detailing that the applicant maintained eye contact, was pleasant and friendly throughout the assessment and offered the assessor and interpreter a drink and a snack. The occupational therapy assessor found the applicant was irritated when discussing his ongoing difficulties and decline in function, but otherwise found normal social functioning.
22I find the applicant did not sustain a marked impairment under the domain of social functioning, as I find the evidence and testimony clearly demonstrated that he is able to socialize, interact appropriately and communicate effectively with other individuals, including his family members, friends and neighbours. I note the applicant did not demonstrate fear of strangers, avoidance of interpersonal relationships or social isolation. Further the applicant demonstrated the ability to communicate clearly with others, interact and actively participate in group activities, exhibit cooperative behaviour, consideration for others, awareness of others’ sensitivities, and social maturity.
23Accordingly, I find the applicant did not meet his onus to establish the criteria for a marked impairment outlined in the Guides had been meet.
Concentration, Persistence and Pace
24I find that the applicant has not sustained a marked or extreme impairment under the domain of concentration, persistence and pace.
25The 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 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 weaknesses in mental concentration, there is a consideration of frequency of errors, the time it takes to complete the task, and the extent to which assistance is required to complete the tasks.
26It is agreed between the parties that the applicant did not sustain a marked or extreme impairment under the domain of concentration, persistence and pace and on the evidence before the tribunal, I see no reason to interfere.
Adaptation
27I find that the applicant has sustained a marked impairment under the domain of Adaptation.
28The 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.
29The applicant and respondent submitted that they agree the applicant sustained a marked impairment in this domain. Accordingly, I find that the applicant has sustained a marked impairment under the domain of adaptation.
Conclusion
30I find the applicant has only sustained one marked impairment and on a balance of probabilities, that the applicant did not discharge his onus of proving that he sustained a marked impairment in three of the four domains of function under criterion 8 of the Schedule to warrant a designation of catastrophic impairment.
Whole Person Impairment (“WPI”) - Criterion 7
31The Tribunal finds, on a balance of probabilities, that the applicant did not sustain a 55% WPI under Criterion 7 due to a combination of physical and psychological impairments caused by the accident. WPI is a guideline for determining the degree/rating of an insured person’s permanent impairments resulting from an accident. According to s. 3.1(1)7 of the Schedule, a person must be assigned at least a 55% WPI in order to be labeled as catastrophically impaired under this criterion.
32WPI ratings for combined physical and mental behavioural impairments use the Guides, 4th edition. Excluding a traumatic brain injury, the Schedule uses the Guides, 6th edition to rate the mental/behavioural impairment. The Guides 6th edition provides a specific methodology for assigning a WPI to certain mental and behavioural conditions.
33The chart below provides a summary of the parties’ submissions as to the ratings and the Tribunal’s findings:
Applicant’s CAT Summary
Respondent’s CAT Summary
Tribunal’s Finding
CRITERION 7 Physical & Neurological Impairment
Physical & Neurological Impairment Rating
*Cervical Spine: 5%
5%
5%
Thoracolumbar: 5%
5%
5%
*Lumbosacral Spine: 10%
5%
5%
Right Shoulder: 10%
6%
10%
Medications: 3%
3%
3%
Mental Status Impairment: 14%
Sleep Disorder: 3%
3%
Cervicogenic headaches 10%
0%
0%
Hearing: 2%
2%
Subtotal: 48%
Subtotal: 22%
Total: 28%
CRITERION 7 Behavioural Impairment
Behavioural Impairment: 20%
[48+20]
Combined Values Chart Total:58%
5%
[22+5]
26%
5%
[28+5]
32%
TOTAL COMBINED RATINGS
TOTAL WPI: 58%
TOTAL WPI: 26%
TOTAL: 32% WPI
34The Tribunal’s findings as to the individual WPI percentages it accepts are explained in the following paragraphs.
35The applicant submitted Dr. Getahun, orthopaedic surgeon, in his report dated August 30, 2021, identified the following physical impairments and WPI ratings:
i. DRE II cervicothoracic spine impairment – 5% WPI
ii. DRE II thoracolumbar spine impairment – 5% WPI
iii. DRE III lumbosacral spine impairment – 10% WPI
iv. Right shoulder impairment – 10% WPI
v. Use of medication/effects of treatments to date or lack thereof - 3% WPI
36Dr. Getahun rated the overall spine impairment to be 19%, shoulder 10% and medication 3% for a total physical WPI of 29%. I note Dr. Herschorn, CAT executive assessor, applied the components identified by Dr. Getahun for her calculations, but did not utilize Dr. Getahun’s overall physical WPI of 29%.
37The applicant also submitted that Dr. Basile, Neurologist, identified the following impairments in the Neurological Addendum Report dated January 20, 2022:
i. Aphasia or communication disturbances (Table 1) – 4% WPI OR Mental status impairment (Table 2) – 14% WPI OR Emotional or behavioural disturbances (Table 3) –10% WPI - the highest of the three ratings (14% WPI) applies according to the directive in the guides
ii. Cervical radiculopathy (needs EMG/NCS and MRI C-spine) – 5% WPI
iii. Lumbosacral radiculopathy (needs EMG/NCS and MRI L-spine) – 5% WPI
iv. Sleep and arousal disorders – 3% WPI
v. Cervicogenic headaches - bilateral greater and lesser occipital neuralgia – 10% WPI
vi. Migraine headaches – 2% WPI
vii. Tension headaches – 1% WPI
viii. Hearing (bilateral tinnitus, needs ENT consultation) – 2% WPI
38The applicant further submitted Dr. Basile provided three potential ratings for headaches. The Guides directs to use the highest rating. Therefore, the applicant submits that 10% WPI would apply. Dr. Basile determined WPI secondary to neurological impairment is 36%. Again, I note Dr. Herschorn applied some of the components identified by Dr. Basile, but did not apply Dr. Basile’s WPI secondary to neurological impairment of 36%.
39I agree with Dr. Herschorn’s decision to draw from the impairment component ratings of Drs. Getahun and Basile to eliminate duplication of ratings. However, I note that the manner in which this evidence is presented adds a layer of complexity and confusion that is not helpful in terms of separate subtotals presented for the physical WPI and the neurological WPI. Accordingly, I have eliminated the separate subtotals for physical WPI and neurological WPI, as the Guides require these impairments be calculated together into the tables ranked from the highest to the lowest impairments.
40The applicant submitted Dr. Getahun and Dr. Basile both provided ratings for cervical and lumbosacral spine, and so only one rating will apply for each. Dr. Herschorn determined the applicant’s total physical and neurological WPI rating as follows:
[5+5+10+10+3+14+3+10+2] OR 48% WPI
41I note that Dr. Getahun rated the applicant’s physical WPI at 29% and Dr. Basile rated the applicant’s neurological WPI at 36%. Dr. Herschorn discounted the duplication of the spine ratings of Drs. Getahun and Basile and determined the physical and neurological WPI to be 48%, as detailed in the previous paragraph. However, while Dr. Herschorn is clear about the values she included, she does not state how she arrived at a WPI 48%, nor does she disclose how she applied the table to arrive at the WPI of 48%. The Guides require the impairments to be indexed into the table from highest value to lowest value as follows:
[14+10+10+10+5+5+3+2] OR 48% WPI
42Unfortunately, Dr. Herschorn did not show how she applied the tables according to the Guides and leaves open to question whether it was applied improperly as the order she outlined would indicate. Accordingly, I assign less weight to Dr. Herschorns combined physical and neurological WPI of 48%.
43The applicant submitted that Dr. Hasan rated the applicant’s mental and behavioural impairment under Chapter 14, Section 14.6 of the Guides. He scored the applicant’s mental and behavioural WPI impairment at 20% as follows:
i. On the Brief Psychiatric Rating Scale (BPRS), his score was 40%.
ii. On the Global Assessment of Functioning (GAF), his score was 20%.
iii. On the Psychiatric Impairment Rating Scale (PIRS), his score was 20%.
iv. After putting all of the scales in order, he has 20% WPI.
44The applicant submits that the rating by Dr. Getahun and Dr. Basile of WPI of 48%, combined with the WPI for mental and behavioural impairment rating by Dr. Hasan of 20%, produces an overall WPI of 58%, once these values are applied to the combined values chart on page 322 of the AMA Guides:
[48+20=58]
38The applicant submits his combined WPI of 58% exceeds the catastrophic threshold of 55%, and he is therefore catastrophically impaired under the criterion 7 analysis.
45However, I note that the respondent submitted that Dr. Getahun applied the DRE III over the DRE II, causing a rating distortion. I find this distortion to cause less weight to be given to Dr. Getahun’s evidence in this area.
46With respect to physical impairment rating, the respondent submits that Dr. Khan’s rating of the DRE II lumbosacral spine impairment to be 5% WPI. This stands in contrast to Dr. Getahun’s rating of DRE III lumbosacral spine impairment to be 10% WPI. I find the aforementioned distortion leads me to prefer the evidence of Dr. Khan
47In respect to neurological impairment, the respondent submits the neurological report of Dr. Moddel dated April 12, 2024 includes the following observations. Upon examination Dr. Moddel noted the applicant has some limitation of his head and neck in respect to flexion, extension and rotation. Cranial nerve examination was normal with eyes, face and speech normal. His gait was normal with normal lumbar lordosis. Finger flexing and muscle group flexing of his left arm presented difficulty although there were no signs of wasting or sensory loss, and his finger nose testing was normal.
48Further, Dr. Moddel found the mental status impairment diagnosed by Dr. Basile to be invalid as it would require the appraisal of a neuropsychologist. Additionally, Dr. Model opined that headaches are not rateable or valid under the Guides. Upon conversation with the applicant Dr. Moddel found “no evidence of cognitive issues.” As it is the applicant’s burden of proof to establish Dr. Basile’s ratings are correct, I note that the applicant did not address these assertions by Dr. Moddel.
49I note Dr. Moddel did not elaborate on his findings on sleep disorder and hearing (tinnitus) disorder and did not refute the evidence of Dr. Basile in respect two these two items.
50In respect to mental and behavioural impairment the respondent submitted that the scales administered under the AMA Guides on the applicant by Dr. Eisen in his report of April 12, 2024 (assessment conducted on December 11, 2023) resulted as follows:
i. Brief Psychiatric Rating Scale (BPRS score) – 39 impairment – 10%
ii. Global Assessment of Functioning Scale (GAF score) - 65 impairment 5%
iii. Psychiatric Impairment Rating Scale (PIRS score) – 2 impairment – 0%
iv. The median result would therefore be 5% WPI.
51The respondent submits that Dr. Eisen’s rating of the WPI for mental and behavioural impairment is 5%, which differs significantly from Dr Hasan’s rating of 20%. I find the difference between these two values is critical to determine whether the applicant is catastrophically impaired or not under criterion 7, as the mental and behavioural component of WPI varies the most between the parties.
52Dr. Eisen stated that there is no evidence to support a diagnoses of somatic symptom disorder, major depressive disorder, or post-traumatic stress disorder, and that it is possible that the applicant improved significantly since he was evaluated by Dr. Hasan the previous year on December 20, 2022.
53Given Dr. Eisen examined the applicant over a year after Dr. Hasan, I prefer the more recent evidence from Dr. Eisen, particularly with respect to the scales applied to the WPI for mental and behavioural impairment. Specifically, Dr. Eisen’s more recent testing produced a score of 5% WPI, as opposed to the earlier rating by Dr. Hasan of 20% WPI. .
54I note Dr. Eisen’s observations of the applicant having mental and behavioural functions to be rated highly functional. Specifically, Dr. Eisen observed the applicant was proud of the blog he maintained, was up to date, clear and knowledgeable about the current conflict in Europe. Dr. Eisen noted the applicant also reported he was pleased to return to some fishing with friends, although disappointed it was no longer sport fishing as in the past. Further the applicant reported to Dr. Eisen that his relationship with his wife and family was good, he enjoyed the company of his grandchildren and that he enjoyed chatting with neighbours. Dr. Eisen also found the applicant had no problems with concentration or memory.
55Further, neurologist Dr, Moddel, in his report of April 12, 2024, mirrored many of the observations of Dr. Eisen. He found the applicant to be clear and logical in his own history with a precise recollection of the accident.
56For these reasons, I find the WPI rating for mental and behavioural impairment by Dr. Eisen to be persuasive and accept a 5% WPI for mental and behavioural impairment.
57I find the applicant did not meet his burden of proof, on a balance of probabilities, in respect to catastrophic impairment under criterion 7.
58I find that the applicant has not sustained a catastrophic impairment as defined by the Schedule under either criterion 7 or 8 for the reasons stated above.
Is the applicant entitled to psychological services and/or an occupational therapy assessment?
59The applicant is entitled to $4,390.64 for psychological services, as well as $2,460.00 for an occupational therapy assessment.
60To 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.
Psychological Services
61The applicant submits the plan for $4,390.64 for psychological services is reasonable and necessary, as it clearly defines the goals of neurocognitive training, improvement in working memory, concentration, sustained and divided attention. Further, it was recommended by Ilya Gladshteyn, psychologist, based on the applicant’s self-report and a neuropsychological test result, that in his opinion that the applicant has been experiencing major neurocognitive disorder following the May 14, 2021 accident and would benefit from a referral to a cognitive rehabilitation training program.
62The respondent denied the plan for continued psychological services because it perceived a lack of progress from the applicant’s previous counselor. I note that the respondent did not object to psychological services overall being unreasonable and unnecessary, rather it was the goals and objectives of this plan in issue. The respondent argued that the plan contained similar goals to the applicant’s previous counselor’s treatment plans, suggested a lack of progress from previous, similar treatment. In short, it appears the respondent was objecting to the continued use of a treatment provider that it deemed ineffective rather than the overall need for services.
63I find while it is the applicant’s onus to prove the treatment plan is reasonable and necessary, it is not the insurer’s role to determine who an insured may seek treatment from provided the therapist is qualified. Progress was noted in each treatment plan; it may not have been optimal but progress was present. It was also indicated that there was a degree of patient resistance at the commencement of treatment limiting results. I find it is clear that while initial patient resistance may have been a factor in slow progress, it does not preclude the plan as being reasonable and necessary.
64I find the applicant’s submissions to be persuasive and he has discharged his onus as the need for cognitive rehabilitation training has been identified by a qualified psychologist, who relied upon neuropsychological test results to support her opinion that the benefit, cost and reasonable goals of the treatment plan for psychological services are valid. I note Dr. Gladshteyn found the applicant demonstrated impaired function in mental rotation, visuospatial processing, planning, verbal reasoning, attention and response inhibition and recommended cognitive rehabilitation training in his report dated May 12, 2022.
65I find the applicant has established that the disputed treatment plan is reasonable and necessary. I find the applicant is entitled to $4,390.64 for psychological services.
Occupational Therapy Assessment
66The applicant submits that $2,460.00 for an occupational therapy assessment is reasonable and necessary to determine his level of cognitive function, and to investigate potential cognitive deficits that were indicated by the applicant during the psychological/neurological assessment, as noted by Evgeni Amchislavski, occupational therapist:
This cognitive assessment is necessary to determine Mr. Genshenza's level of cognitive function to investigate potential cognitive deficits that were indicated by the client during the psychological/neurological assessment. This assessment will include standardized tests that will assess specific cognitive skills. The evaluation will also include a clinical interview to clarify and synthesize more specific cognitive deficits as they relate to day to day function.
The cognitive assessment is also necessary to determine the future treatment planning for the client's psychological concerns, and is an important part in the assessment of Mr. Genshenza's future overall functioning.
67The respondent opposed the occupational therapy assessment plan, citing the applicant did not have any neurological impairments. The respondent did not refer the Tribunal to any specific expert finding to support this assertion.
68I find the applicant has produced persuasive evidence of some level of neurological/physical impairment with respect to his limited range and motion of the cervical and lumbar spine, as detailed in the assessment of Dr. Getahun dated August 26, 2021. I find this is sufficient evidence to support the benefit, cost and reasonable goals of the occupational therapy assessment. In turn, I find the applicant has discharged his onus and established that the disputed occupational therapy assessment is reasonable and necessary to investigate whether he suffers from a cognitive deficit and if so, chart a course to assist with his recovery. I find the applicant is entitled $2,460.00 for an occupational therapy assessment, as the cost of the assessment is in line with the limits for assessments under the Schedule.
Is the applicant entitled to reimbursement for transportation services?
69I find the applicant did not discharge his onus to prove that the transportation services claimed by the applicant complied with the benefits provided under Schedule, as the Tribunal was not directed to any evidence or entitlement provision to consider in relation to the claimed expenses.
Interest
70The applicant is entitled to interest applied to the payment of any overdue benefits, pursuant to s. 51 of the Schedule.
ORDER
71The Tribunal orders as follows:
a. The applicant has not sustained a catastrophic impairment as defined by the Schedule.
b. The applicant is entitled to $4,390.64 for psychological services.
c. The applicant is entitled to $2,460.00 for an occupational therapy assessment.
d. The applicant is not entitled to $508.50 for transportation expenses.
e. The applicant is not entitled to $991.00 for transportation expenses.
f. The applicant is entitled to interest on any overdue payment of benefits.
Released: June 16, 2025
Robert Maich
Vice-Chair
