Citation: Dawood v. Certas Direct, 2025 ONLAT 23-009350/AABS

Licence Appeal Tribunal File Number: 23-009350/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:

Roo Dawood

Applicant

and

Certas Direct

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Joseph G. Caprara, Counsel

For the Respondent:

Michael McChesney, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Roo Dawood (the “applicant”) was involved in an automobile accident on August 12, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Certas Direct (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. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $317.00 per week from February 22, 2022 to date and ongoing?

ii. Is the applicant entitled to $3,484.00 for an attendant care assessment, proposed by Ali Habash in a treatment plan/OCF-18 (“OCF-18”) submitted on June 20, 2023 and denied on July 1, 2023?

RESULT

3I find that:

i. The applicant is entitled to an IRB in the amount of $317.00 per week from February 22, 2022 to date and ongoing.

ii. The applicant is not entitled to the cost of an attendant care assessment.

PROCEDURAL ISSUES

The s. 44 catastrophic (“CAT”) assessment reports will not be excluded from the record

4I deny the respondent’s request to exclude the s. 44 CAT reports of Dr. Gilbert Yu Ming, orthopaedic surgeon, Dr. Velan Sivasubramanian, psychiatrist, and Mary Vitali-Perrier, occupational therapist (“OT”) dated June 13, 2024, from the hearing record.

5In its submissions, the respondent argues that the applicant was non-compliant with the Case Conference Report & Order (“CCRO”) released on March 1, 2024, because the s. 44 CAT reports were served beyond the production deadline of May 22, 2024. The respondent argues that the reports are not relevant to the issues in dispute and that prejudice does not have to be established to exclude evidence.

6The applicant did not provide any submissions on this issue.

7Rule 9.3 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) provides that if a party fails to comply with any Rule, direction, or order with respect to disclosure, exchange, production, or inspection of documents or things, that party may not rely on the document or thing as evidence without the permission of the Tribunal. Rule 9.3 further provides direction on the submissions a party may make and the factors the Tribunal will consider in respect of such a request for permission for a document to be relied on as evidence.

8I find that if the CCRO is strictly interpreted then the applicant was non-compliant as the s. 44 CAT reports were not served by the May 22, 2024 deadline because they were not completed until June 13, 2024. However, this non-compliance with the CCRO is not the applicant’s fault, because these reports were completed for the respondent.

9In any event, I find that the evidence is relevant to the issue of the applicant’s entitlement of IRB. Pursuant to s. 15(1) of the Statutory Powers Procedure Act, RSO 1990, c S. 22 (“SPPA”), documents relevant to the issues in dispute are admissible as evidence. I am alive to the respondent’s position that the s. 44 CAT reports are not relevant because the issue in dispute is different. I disagree, because the assessors determined the impairment level with respect to the applicant’s adaptation to work and work-like settings. In my view, these findings are highly relevant to determine whether the applicant suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited.

10The respondent relies upon the Tribunal decision of 18-002569 v. Aviva Insurance Canada, 2019 CanLII 22214 (ON LAT) (“18-002569”) to support its position that evidence can be excluded by the Tribunal without considering prejudice to the other party. I am not bound by previous Tribunal decisions and I do not find this decision persuasive or applicable to the factual matrix before me. In 18-002569, the records that were excluded were in the applicant’s control to request in a timely fashion and produce. Meanwhile in the matter before me, the applicant has no control over when the respondent’s section 44 reports will be completed and served. Further, Rule 9.3 clearly states, that prejudice is a relevant factor to consider with respect to exclusion of evidence. Here, I find that there is no prejudice to the respondent where it requested the reports, retained the experts, had knowledge that the reports were being completed and would have been served with the reports first since they retained the experts. Significantly, the respondent does not even specify when the reports were served on the applicant by it. Further, the respondent provided submissions on the shortcomings of the reports in its submissions, therefore I am not satisfied that it has suffered prejudice.

11For all these reasons, I decline the respondent’s request to exclude the s. 44 CAT Reports.

ANALYSIS

Post-104 IRB

12I find the applicant is entitled to a post-104 IRB for the following reasons.

13To receive payment for post-104 IRBs under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.

14The applicant argues that, as a result of the accident she has sustained: neck pain, back pain, shoulder pain, chronic pain, left leg radiculopathy, major depressive disorder, post-traumatic stress disorder, and somatic symptom disorder. As a result, she argues that she suffers a substantial and complete inability to perform any work. The applicant primarily relies on the following evidence:

i. Clinical notes and records (“CNRs”) of her family physician, Dr. Selva Rajaraman;

ii. CNRs of Windsor Regional Hospital;

iii. Section 44 physiatry report of Dr. Saad Naaman, physiatrist, dated July 18, 2019;

iv. Section 44 functional abilities evaluation report of John Haratsis, physiotherapist, dated July 18, 2019;

v. Section 44 orthopedic assessment report of Dr. S.W. Bartol, orthopaedic surgeon, dated February 15, 2022;

vi. Section 44 labour market survey report of Diamantis Zervas, vocational evaluation specialist, dated February 15, 2022;

vii. Section 25 OT CAT report of Julian Amchislavsky, OT, dated December 31, 2023;

viii. Section 25 CAT executive summary of Dr. Hien Ta, anesthesiologist, dated January 22, 2024;

ix. Section 25 CAT psychiatry report of Dr. Quinn, psychiatrist, dated January 10, 2024;

x. Section 44 CAT Orthopedic Report by Dr. Yee, dated June 13, 2024; and

xi. Section 44 CAT Psychiatric Report of Dr. Sivsubramanian, dated June 13, 2024.

15The respondent argues that the applicant does not meet the complete inability test largely for the following six reasons. First, there are gaps in the CNRs of Dr. Rajaraman. Second, the applicant has failed numerous validity testing, which will be elaborated on below. Third, the applicant returned to schooling in October of 2023. Fourth, the applicant was pain-focused/self-limited in multiple s. 44 assessments. Fifth, there is surveillance footage of the applicant working as a truck driver in July of 2020. Sixth, none of the s. 25 assessors reviewed the surveillance footage from July 22, 2020 to August 2, 2020.

16To this end, it relies upon the s. 44 reports of Dr. Naaman, Mr. Haratsis, Mr. Zervas (dated January 18, 2022), Mr. Alexander Roberts, kinesiologist (dated February 15, 2022), Mr. Joseph S. Morgan, OT (dated February 15, 2022), Dr. Kehinde Adekunle Aladetoyinbo, psychiatrist (dated February 15, 2022), and Dr. S.W. Bartol, orthopaedic surgeon (dated February 15, 2022).

17The respondent also raises a causation concern with respect to the applicant’s back pain, and I will turn to this first.

The accident was a necessary cause of the applicant’s back pain

18I find that the accident was a necessary cause of the applicant’s back pain, which required two surgeries.

19The applicant argues that, as a result of the accident, she sustained back pain, which, as documented in the CNRs of Dr. Rajaraman worsened to the point that an MRI of the lumbar spine on February 19, 2020 revealed a disc protrusion at L5/S1 with nerve impingement. As a result, the applicant underwent two lumbar spine surgeries on May 5, 2022 and May 28, 2022.

20The respondent argues that, prior to the accident, the applicant had a history of back pain that radiated to her leg, and that following the accident, the CNRs of Dr. Rajaraman show that the applicant first visited three years after the accident in March of 2021. It takes the position that the applicant has failed to establish that the accident was the cause of her back surgery. To this end, it relies upon the CNRs of Dr. Rajaraman and the Windsor Regional Hospital.

21The applicant must show that she would not have suffered the injuries “but for” the accident. The injuries do not need to be “the cause” of the accident, but at least “a necessary cause”: see Sabadash v. State Farm et al., 2019 ONSC 1121. While the parties have not referred me to this authority, it is the leading authority from the Divisional Court on the issue of causation, and I am bound by it.

22I find that the applicant has established, on a balance of probabilities, that the accident was a necessary cause of her back pain which required two surgeries. I agree that there is a significant gap in Dr. Rajaraman’s CNRs, because the applicant did not report back pain until March 11, 2021, nearly three years following the accident. However, Dr. Ta—along with the respondent’s assessors, Dr. Naaman, Dr. Bartol and Dr. Yee—all concluded that the applicant has back pain from the accident, had no ongoing impairment from a pre-existing condition at the time of the accident, and that the MRI results of February 19, 2020, which revealed disc herniation at L5-S1, i.e., the reason for the two surgeries, were likely attributed to the accident. As such, the applicant has produced four medical opinions that link the subject accident to the back pain that resulted in disc herniation at L5-S1, which, in turn, required two surgeries.

23The respondent further argues that a pre-operative anesthesia assessment consultation report, dated May 5, 2022, established that the applicant’s ongoing back pain is not as a result of the accident, because it was noted that the applicant’s accident was listed under the “resolved” section. I place little weight on this report. Specifically, I note that the applicant reported to Dr. Patrick Charron, physiatrist, on February 1, 2022 that she had ongoing back pain since the accident which has gotten worst over the passage of time. The respondent’s assessors, Dr. Bartol and Dr. Yee, have also linked the applicant’s back pain, MRI results and surgeries to the accident. I see no reason to depart from this conclusion based on a single entry where the respondent’s assessors have concluded otherwise.

24I further acknowledge the respondent’s argument that since the surveillance conducted from July to August 2020 shows that the applicant was functioning without issue then the causal link is severed. I disagree because surveillance cannot depict the level of pain the applicant was experiencing while driving her truck on the highway, detaching the truck from the trailer, closing the large hood of the transport truck, grocery shopping, and carrying the grocery bags. Significantly, Dr. Bartol reviewed this surveillance footage and still arrived at the conclusion that the applicant sustained an impairment in her back as a result of the accident and that the disc herniation at L5-S1 was likely attributable to the accident. Put another way, even after reviewing the surveillance footage of the applicant, Dr. Bartol linked the applicant’s impairments to the accident and did not provide another cause that may severed the causal link.

25In conclusion, I find that the accident was a necessary cause of the applicant’s back pain, which required two surgeries.

What employment or self-employment is the applicant reasonably suited for?

26The applicant submits that, prior to the accident, she worked as a short-haul truck driver and part-time DJ. She also worked as a line packager at Highland Mushrooms and baker at Tim Horton’s from 2013 to 2014. She further argues that she obtained her AZ truck driving licence in 2015. The applicant also relies upon the s. 44 labour market survey report of Mr. Zervas which provided a list of suitable employment alternatives based on the applicant’s education, training, and experience.

27The respondent argues that Mr. Zervas concluded that the applicant was suited to work as a telephone sales clerk, customer service clerk, food service order taker, quality inspector, dispatch support, delivery driver, and courier.

28I find that the applicant is reasonably suited for employment involving truck driving, DJing, and work as a telephone sales clerk, customer service clerk, food service order taker, courier, and dispatcher. I note that both parties agree with Mr. Zervas’s conclusion that the applicant was suited for work as a quality inspector and delivery driver, however Dr. Bartol in his report of February 15, 2022, concluded that both these occupations were not suitable for the applicant. I accept this conclusion by Dr. Bartol because Mr. Zervas’s report was clear that final comment was being deferred to the medical assessors who were participating in the multidis assessment, which is Dr. Bartol.

29I also acknowledge the respondent’s argument that the applicant has not set out the essential tasks of her pre-accident employment as a truck driver. However, in order to establish entitlement to post-104 IRB, there is no such requirement. Rather, section 6(2)(b) is clear that the applicant has to establish that she suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited. Further, the respondent conceded in its submissions that it paid pre-104 IRB for a period of time, although it did not provide me with specific dates of when. Therefore, I find this argument by the respondent is not fatal to the applicant’s claim when it is immaterial to the post-104 IRB test and the respondent paid pre-104 IRB which is based on her being substantially unable to complete her essential tasks.

The applicant has demonstrated that she suffers a complete inability to engage in employment or self-employment that she is reasonably suited for

30On balance, I find that the applicant has met her onus of demonstrating that she suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience as a result of the accident. Specifically, on review of the medical documentation, I find that there is ample evidence that the applicant’s psychological impairments have prevented her from completely engaging in employment for which she was suited.

31In reaching this conclusion, I place significant weight on the s. 25 report of Dr. Quinn, where the applicant was diagnosed with major depressive disorder, somatic symptom disorder, posttraumatic stress disorder, specific phobia, situational, vehicular, and insomnia disorder, persistent which resulted in an extreme impairment for deterioration or decompensation in work or work-like settings. This conclusion was reached based on the DSM-5 TR testing.

32I place weight on this report because the respondent’s assessors, Drs. Sivasubramian and Aladetoyinbo (who concluded that the applicant does not meet the post-104 IRB test), have also diagnosed the applicant with significant psychological impairments, such as a major depressive disorder with psychotic features, somatic symptom pain disorder with predominant pain, and other specified trauma and stressor-related disorder (with elements of posttraumatic stress disorder).

33Also, Dr. Sivasubramian concluded that, as a result of the applicant’s psychological impairments, she had a marked impairment in adaptation to work and work-like settings, a domain which evaluates the applicant’s capacity to adapt to stressful circumstances. In the face of such circumstances, the individual may withdraw from the situation or experience exacerbation signs and symptoms. He or she may decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Significantly, both Drs. Quinn and Sivasubramian concurred that the applicant suffered an impairment with respect to adaptation to work and work-like setting. The main difference between the two opinions was that Dr. Quinn arrived at the conclusion that the applicant had a extreme impairment (Class 5) and Dr. Sivasubramian concluded that the applicant had a marked impairment (Class 4).

34Notably, both Dr. Quinn and the respondent’s OT assessor Ms. Perrier noted that the applicant would have significant issues with regular attendance, punctuality, scheduling, and sustaining an ordinary routine without special supervision, that she would not be able to engage herself due to low motivation, and would not be able to meet demands, due to increased fatigue with decreased restorative sleep. Likewise, Dr. Sivasubramian concluded that the applicant’s stress tolerance was significantly compromised and based on Ms. Perrier’s opinion as indicated above, concluded that the applicant had a marked impairment in adaption. Therefore, in arriving at this conclusion, Dr. Sivasubramian and Ms. Perrier opined that the applicant’s psychological impairment significantly impedes useful function in work or work-like settings as outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition.

35In my opinion, the fact that the applicant suffers at least a marked impairment in adaptation helps to establish that she suffers a complete inability to engage in any employment for which she is reasonably suited for. As noted by Dr. Quinn, Dr. Sivasubramian and Ms. Perrier, the applicant has significant issues with attendance, punctuality, scheduling, following an ordinary routine without special supervision, low motivation, meeting demands, increased fatigue, and compromised stress tolerance.

36I place little weight on Mr. Zervas’s report because he only noted the physical demands and not the psychological demands of the alternative employments available to the applicant. However, it would be reasonable to presume that she would also be required to be punctual, have regular attendance and scheduling, would not have special supervision, would require motivation, and would be required to meet her work demands to complete roles such as telephone sales clerk, customer services clerk, dispatcher, etc. Moreover, the respondent’s assessor, Dr. Bartol, has ruled out the possibility that the applicant can complete her pre-accident truck driving, and that the alternative occupations of quality inspector and delivery driver were not suitable occupations for her, based on a physical perspective. To me, it is unclear how the applicant will be able to complete these roles where she has been diagnosed with significant psychological impairments and has at minimum a marked impairment in her ability to adapt to work and work-like settings.

37I acknowledge the respondent’s position that a marked impairment in adaptation is not conclusive evidence that the applicant meets the complete inability test for IRBs. However, I disagree with this argument. It is unclear how the applicant will be able to completely engage in these alternative roles where both Drs. Quinn and Sivasubramian have concluded that the applicant would not be able to engage herself in work and work-like settings due to the issues detailed above. I acknowledge that there are different tests at play between CAT and post-104 IRB entitlement, however the fact that the applicant is at minimum significantly impeded from useful function in the work environment supports her position that she is entitled to post-104 IRB. In my opinion, the applicant will not be able to completely engage in the employment or self-employment for which she is reasonably suited as useful function at work is significantly impeded. I find that if the respondent’s position was accepted that only an extreme impairment would satisfy the post-104 IRB test this would be contrary to the consumer protection nature of the Schedule, as this requirement does not exist under s. 6(2). I also note that Dr. Quinn did conclude that the applicant suffered an extreme impairment.

38I also find the fact that Dr. Quinn did not review the surveillance footage from 2020 does not negate my finding because Dr. Sivasubramian did and still arrived at her conclusion that the applicant had a marked impairment in adaptation.

39I am also alive to the respondent’s argument that the applicant’s LinkedIn profile shows that she returned to school in October of 2023 and is completing a paralegal program, which is corroborated by Dr. Rajaraman’s CNR of November 22, 2023. As a result, the respondent argues that if the applicant is capable of taking such a program, then she is capable of some form of employment. I find the fact that the applicant pursued a paralegal program from October 2023 to 2024 is immaterial because the test under s. 6(2)(b) is that the applicant has to suffer a complete inability to engage in any employment or self-employment, not schooling. Furthermore, even if the applicant finished her paralegal program this does not detract from the fact that Dr. Quinn, Dr. Sivasubramian and Ms. Perrier have opined that the applicant has significant impairments in her ability to adapt in the work environment as indicated above. In other words, even if the applicant was reasonably suited for employment as a paralegal, it is unclear to me how she would be able to complete this role with the significant issues outlined above.

40I also place less weight on Dr. Aladetoyinbo’s conclusion that the applicant’s psychological impairments do not result in a complete inability to engage in employment for which she is reasonably suited. I acknowledge the respondent’s position that Dr. Aladetoyinbo’s report should be given more weight because Drs. Quinn and Sivasubramian did not conduct validity testing. However, neither did Dr. Aladetoyinbo.

41Rather, Dr. Aladetoyinbo concluded that there was a marked variance between the observations of the surveillance conducted from July 22, 2020 to August 2, 2020 and the subjective account of the applicant. This finding allowed him to conclude that the potential for symptom exaggeration could not be excluded. However, I find this opinion by Dr. Aladetoyinbo to be unpersuasive where he provided no rationale on how the surveillance from two years previously derailed the applicant’s reporting when he did not ask the applicant whether she returned to work since the accident. Indeed, the applicant reported to Drs. Ta and Sivasubramanian, and Mr. Zervas that she worked for a period of time following the accident. Nor did Dr. Aladetoyinbo provide a rationale of why no validity testing was conducted when there were issues due to surveillance, and he believed that there was a potential for symptom exaggeration. Meanwhile, Dr. Sivasubramian had no issues based on the surveillance and had no symptom exaggeration concerns, which together would explain why no validity testing was conducted.

42I am also not persuaded by Dr. Aladetoyinbo’s conclusion that the applicant does not meet the post-104 IRB test based on surveillance of her engaging as a truck driver and the applicant advertising an DJ event that she would be performing at because the surveillance is outdated.

43I find that Dr. Aladetoyinbo did not appreciate that Dr. Bartol, two years after the surveillance was completed, has opined that the applicant cannot complete her pre-accident truck driving role due to her physical impairments, despite reviewing the same surveillance as Dr. Aladetoyinbo. Further, there is no updated evidence before me that the applicant is working as a DJ or has a capacity to do so. Rather, surveillance completed nearly five years ago shows an advertisement on social media that the applicant would be performing as a DJ on January 10, 2020, which is not contemporaneous to the post-104 IRB period.

44I also find that the fact that Dr. Naaman, Mr. Haratsis, Mr. Roberts, Mr. Morgan, and Dr. Bartol, noted that the applicant failed validity testing, that the applicant’s subjective complaints did not correspond with the objective findings, she was pain-focused and self-limited, and had pain magnification behavior with respect to her physical impairments is not detrimental to the applicant’s claim.

45First, none of these assessors considered the fact that the applicant has been diagnosed with somatic symptom disorder with predominant pain by three assessors, including two of the respondent’s assessors. Indeed, Drs. Quinn and Sivasubramian noted that the applicant complained of significant pain, and how it significantly impacted her life, which would explain the findings noted above since somatic symptom disorder is a psychological impairment.

46Second, Dr. Charron concluded that there were several non-organic findings that likely resulted in symptom magnification, but that psychosocial factors were likely playing a significant role in her symptomology. In other words, Dr. Charron concluded that the applicant’s physical impairments were likely impacted by psychosocial features, which would include a somatic symptom disorder, which was not considered by the assessors noted above.

47The respondent also relies upon the surveillance completed from 2020 to support its position that the applicant has no obvious impairments and was functional without issues. Specifically, it highlights how she was driving a truck on the highway, entering a shipping dock, detaching the truck from the trailer, lowering the jack stands, hinging at the waist, and closing the large hood of the transport truck.

48I am alive to the fact that the applicant made lengthy submissions on why the surveillance footage was inadmissible. However s. 15 of the SPPA is clear that documents relevant to the issues in dispute are admissible as evidence, with the exception of privileged evidence or evidence that would be inadmissible by the statute under which the proceeding arises or any other statute. The applicant has not referred me to any statute that states surveillance evidence is inadmissible, nor has privilege been raised.

49In any event, I find that the respondent’s surveillance evidence has little probative value for the following reasons. First, the surveillance was conducted nearly five years ago. While I acknowledge that there is surveillance of the applicant working as a truck driver on July 24, 2020, July 29, 2020, and August 2, 2020, this does not establish that the applicant is still able to work as a truck driver. Indeed, I have no surveillance beyond 2020 and as noted above, she reported to Drs. Ta, and Sivasubramanian, and Mr. Zervas that she had attempted to work as a truck driver following the accident. I acknowledge that the applicant reported to Mr. Amchislavsky and Dr. Bartol that she has not worked since the accident; however, this does not detract from the fact that she reported to the other three assessors that she did attempt to return to work.

50Second, despite reviewing the surveillance, Dr. Bartol concluded that there was a real pathology present and a real underlying physical impairment. He concluded she was unable to tolerate prolonged sitting for the purposes of operating a commercial vehicle. Therefore, it is difficult to reconcile the respondent’s position where its assessor, after reviewing the surveillance footage of the applicant driving as a truck driver in 2020, concluded in 2022 that she was unable to operate a commercial vehicle.

51Third, Dr. Sivasubramian reviewed the surveillance footage and still arrived at the conclusion that the applicant had a marked impairment due to her psychological impairments in her ability to adopt to the work environment.

52In short, I find that the surveillance footage has little value where it was completed nearly five years ago (for a period that the applicant has admitted to three assessors that she attempted to return to work), and two of the respondent’s assessors after reviewing the surveillance footage have arrived at conclusions that are contrary to the respondent’s position.

53I also acknowledge the respondent’s argument that the applicant has not proven that she did not continue to work or earn income following the accident because she did not produce any post-accident financial documentation. I am not persuaded by this argument where the respondent paid the applicant’s pre-104 IRB, Dr. Quinn, and the respondent’s assessors Dr. Sivasubramian and Ms. Perrier all concluded that the applicant’s psychological impairments would significantly impact her ability to adapt in the work environment.

54In sum, I find that the applicant has proven that she suffers a complete inability to engage in any employment for which she is reasonably suited.

55I note that neither party has raised the issue of quantum. Rather, the applicant argues that she received IRB at the rate of $317.00 per week until January 3, 2020, and the respondent makes no arguments with respect to disputing quantum. Instead, the respondent argues that it has not received any post-accident employment or financial documentation to prove that the applicant stopped earning income following the accident, and that it sent six s. 33 requests from December 2020 to January 2022. However, the respondent has not advised what relief it is seeking in this regard. Therefore, since quantum of IRB is not in dispute, I find that the applicant is entitled to post-104 IRB at the rate of $317.00 per week from February 22, 2022 to date and ongoing.

The applicant is not entitled to the cost of an attendant care assessment

56The applicant has not proven on a balance of probabilities that the cost of an attendant care assessment is reasonable and necessary.

57In determining whether an assessment is reasonable and necessary, I note that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing that there are grounds to suspect she has the condition for which she seeks the assessment.

58The applicant argues that an updated attendant care assessment is required based on the applicant’s two back surgeries. She further argues that there are eight counts of travel time included in the OCF-18 which are reasonable and necessary because the assessor would have to drive to Windsor, which is a four hour drive.

59The applicant has fallen short of meeting her onus in proving that the attendant care assessment is reasonable and necessary. First, the applicant did not produce a copy of the OCF-18 for Tribunal review despite the respondent raising the issue and the applicant providing reply submissions. Second, I find that the evidence is lacking to support that an reassessment is required because her personal care needs have changed following her two back surgeries. Indeed, the applicant relies upon Mr. Morgan’s report of February 15, 2022 to establish that she already had functional limitations prior to her two surgeries; however, this does not establish that she requires a reassessment because this report was done before her surgeries. In a similar vein, the applicant relies upon Ms. Perrier’s report of June 13, 2024 to argue that she now requires assistance with bathing, dressing, and meal preparation. However, the applicant did not advise Ms. Perrier of the surgery, nor did Ms. Perrier conclude that the applicant required this assistance because of her surgeries. Further, Ms. Perrier did not recommend a further re-assessment of the applicant’s attendant care needs.

60Further, without the OCF-18, I am unable to determine whether the proposed travel costs are in accordance with the definition of “authorized transportation expenses” found in s. 3(1) of the Schedule. Thus, I find that the applicant has not established entitlement to the cost of an attendant care assessment.

ORDER

61For the reasons outlined above, I find that:

i. The applicant is entitled to an IRB in the amount of $317.00 per week from February 22, 2022 to date and ongoing.

ii. The applicant is not entitled to the cost of an attendant care assessment.