Licence Appeal Tribunal File Number: 24-005328/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:
[T.C]
(By their litigation guardian, [M.L])
Applicant
and
Gore Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
[M.L], Litigation Guardian of the Applicant
Neil Wilson, Counsel
Arlene Campbell, Counsel
Yalda Mostafaie, Student-at-law
For the Respondent:
Kevin Shapcott, Adjuster
Rosalind Eastmond, Counsel
Victoria Trasente, Student-at-law
Aksaya Ratneswaran, Student-at-law
Court Report:
Joyce Espino
HEARD: by Videoconference on March 31 to April 4, 2025
OVERVIEW
1[T.C] (“the Applicant”) was involved in an automobile accident on September 13, 2020, and sought benefits from Gore Mutual Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The Applicant was denied benefits by the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. Has the Applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the Applicant entitled to income replacement benefits (“IRBs”) in the amount of $347.67 per week from September 20, 2020, to-date and ongoing?
iii. Is the Applicant entitled to attendant care benefits (“ACBs”) in the amount of $6,000.00 per month from September 12, 2020 to-date and ongoing?
iv. Is the Applicant entitled to medical benefits for services proposed by Hydroactive Aquatherapy as follows:
a) $2,901.84 for chiropractic and massage services proposed in a treatment plan/OCF-18 (“treatment plan”) dated May 7, 2021;
b) $4,347.12 for aquatherapy and massage services in a treatment plan dated May 7, 2021;
c) $149.61 ($2,932.02 less $2,782.41 approved) for broker fees related to psychological services in a treatment plan dated April 2, 2022?
v. Is the Applicant entitled to a medical benefit in the amount of $3,922.75 less $3,790.75 approved by the Respondent, for mileage related to occupational therapy proposed by Heather Muir in a treatment plan dated September 20, 2021?
vi. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
vii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
4The Applicant sustained a catastrophic impairment as a result of the accident.
5The Applicant is entitled to IRBs at the weekly rate of $347.67, for the period from September 20, 2020 to-date and ongoing, plus interest pursuant to section 51 of the Schedule.
6The Applicant is entitled to incurred ACBs in the amount of $13,842.57, less the amounts paid by the Respondent, plus interest pursuant to section 51 of the Schedule, if applicable.
7The Applicant is entitled to incur expenses related to ACBs at the rate of $6,000.00 per month.
8The Applicant is entitled to the treatment plan in the amount of $2,901.84, dated May 7, 2020, plus interest pursuant to section 51 of the Schedule.
9The Applicant is entitled to the treatment plan in the amount of $4,347.12, dated May 7, 2021, plus interest pursuant to section 51 of the Schedule.
10The Applicant is not entitled to the unapproved balances related to the treatment plans, dated September 20, 2021, and April 2, 2022.
11No award or costs are payable.
BACKGROUND
12The basis of the dispute between the parties is their disagreement over the Applicant’s medical condition at the time of the accident, and the occurrences and/or facts immediately following the accident.
13For the most part, the parties agree on the following facts.
14The Applicant was the front seat passenger of a vehicle which struck the side of another vehicle in a perpendicular fashion while driving on an urban roadway. The airbags deployed and police and ambulance arrived at the scene of the accident. The Applicant was taken by ambulance to the hospital and was treated for a fractured right wrist and discharged.
15Three days following the accident, the Applicant met with Dr. M. Takallou, chiropractor. Upon examination, Dr. Takallou referred the Applicant back to the hospital for a suspected concussion. The Applicant was examined at the hospital the following day and a CT scan was ordered. The CT scan showed some atrophy in her brain. An MRI was then ordered and completed September 29, 2020. The MRI showed left cerebral hemiatrophy.
16The parties also agree that, currently, the Applicant suffers from a dementing illness or a neurocognitive disorder. Currently, the Applicant’s condition renders her incapable of caring for herself independently. including feeding and personal hygiene. She is no longer speaking and is devoid of emotion. Her daughter, [M.L], is now her legal guardian.
POSITIONS
17The Applicant submits that she had a fragile brain, had a mild neurocognitive disorder slowly grumbling along, which she was able to cope with and showed none-to-mild signs of impairment. Then she sustained a concussion in the accident which, combined with depression and post-accident sleep issues, led her to go from having minimal symptoms to a full-blown neurocognitive disorder within months or possibly weeks of the accident. Her position is that the neurocognitive disorder has caused her to have extreme mental and behaviour impairments, which meet the criteria for a catastrophic impairment.
18The Applicant further submits that her attendant care needs far exceed the $6,000.00 funding limit provided for person who sustained a catastrophic impairment, and that she meets the test for IRBs both before and after the 104-week mark.
19The Respondent acknowledges that this is an unfortunate situation but disagrees that the accident is the cause of the Applicant’s condition. It submits that the evidence indicates that the Applicant exhibited functional impairments prior to the accident, suggestive of dementia, and that the accident is not the cause, nor accelerated the development of dementia. To the Respondent, this case could open the floodgates to anyone with dementia involved in a motor vehicle accident to claim entitlement to benefits.
20The Respondent further submits that the Applicant has not demonstrated that she incurred ACBs, and there is no evidence to deem them incurred in this case. Regarding IRBs, it submits that the Applicant’s entitlement turns on causation and maintains that the Applicant has not demonstrated that she developed a neurocognitive disorder as a result of the accident.
21For the following reasons, I find that the Applicant sustained a catastrophic impairment as a result of the accident.
ANALYSIS
22To be found to have sustained a catastrophic impairment, the Applicant must demonstrate that she sustained a single class 5, extreme, impairment, in one of the domains of function, or at least three class 4, marked, impairments, in accordance with the 4th edition of the American Medical Association Guides (“the AMA Guides”).
23The Applicant’s current presentation is equivalent to a catastrophic impairment. Dr. R. Van Reekum, neuropsychiatrist, and Dr. V. Sivasubramanian, psychiatrist, agreed in testimony that the Applicant’s current presentation is equivalent to a class 5, extreme, impairment in the spheres of activities of daily living (“ADLs”) and social functioning. This is because the Applicant is completely incapable of completing her ADLs independently, does not speak, and is incapable of carrying on a conversation. They agree, as well as others involved in the case, that the Applicant is profoundly impaired due to a neurocognitive disorder.
24However, the issue at hand is whether the Applicant’s current presentation is as a result of a mental and behavioural impairment caused by the accident. For the following reasons, I find that it is.
CAUSATION
25The onus is on the Applicant to demonstrate that the onset of a neurocognitive disorder would not have occurred but for the accident. She is not required to show that the accident was the sole cause of the onset of a neurocognitive disorder. In such cases where there may be multiple independent causes bring about a single harm, the Applicant must establish that the accident materially contributed to the onset of her condition. For caselaw on causation, see Sabadash v. State Farm, et al., 2019 ONSC 1121, Monks v. ING Insurance Company of Canada, 2008 ONCA 269, and Walker Estate v. York Finch General Hospital, 2001 SCC 23.
26For the following reasons, I find that the Applicant has met her onus to demonstrate that the onset of a neurocognitive disorder would not have occurred but for the accident. To me, the accident was the cause of, or significantly accelerated, the development of dementia which would not have occurred but for the accident. This is because the Applicant exhibited virtually no signs of cognitive decline prior to the accident. The mechanism or the accident was severe and caused the Applicant to fracture her wrist and strike her head on the interior of the cabin. Then, following the accident, the Applicant exhibited an obvious change in her cognition with a rapid decline in her overall functionality to her current state, which meets the criteria for a catastrophic impairment pursuant to criterion 8, due to an extreme mental and behavioural impairment in any of the four spheres of function.
Functionality and health status prior to the accident
27Prior to the accident, the Applicant had unremarkable health. In fact, she rarely had any health issues for which she sought or needed medical attention. Her decoded OHIP summary shows no entries between December 2017 and September 13, 2020 (the date of the accident). She never had a family physician prior to the accident. Her pre-accident medical records are scant and make no indication that she was developing or developed dementia or any other neurocognitive disorder.
28The Applicant was highly functional prior to the accident. Vocationally, she taught English prior to immigrating to Canada in 1998, and spoke five languages prior to the accident. Upon her immigration, she gained education and experience in nutrition, and started working in the nutritional department of a pharmacy. She also worked in coffee shops and occasionally helped her husband with his painting business. Eventually, the Applicant and her husband moved homes, which made travel to the pharmacy difficult for the Applicant – she does not drive – leading her to work as a painter with her husband on a full-time basis, which she was doing at the time of the accident.
29The Applicant’s daughter, [M.L], testified that her mom was an active person. She said that her mom did yoga daily and would go on yoga retreats and exhibitions. [M.L] shared that her mom enjoyed hiking and spending time outdoors. [M.L] testified that her mom was pivotal in her ability to work after having children, in that she regularly cared for her grandkids. [M.L] noted that her mom taught her grandkids how to read, play piano, and took them to attractions like the Royal Ontario Museum and Casa Loma. [M.L] regularly spoke with her mom on the telephone and, in the time immediately leading up to the accident, saw her on a weekly or bi-weekly basis. She reports that her mom had no issues speaking English and would see her communicating when they were in public, such as at restaurants and while shopping in stores.
30There is virtually no evidence that suggests the Applicant was experiencing cognitive decline prior to the accident. This fact casts significant doubt on the Respondent’s position that the Applicant was experiencing the early-stage symptoms of dementia prior to the accident and that her current presentation is the natural decline for someone with dementia. Despite the Applicant’s remarkably good health prior to the accident, the Respondent places great weight on an ambulance report that suggests that the Applicant experienced pre-existing memory issues.
The mechanism of the accident – Biomechanical assessment report
31I find that the mechanism of the accident caused the Applicant to hit her head, which resulted in, at a minimum, a minor traumatic brain injury (“mTBI”).
32I find the June 10, 2024 report of Dr. C. Gooyers, forensic engineer, and N. Perera, forensic engineer, to be persuasive evidence in favour of a finding that the Applicant sustained a concussion in the accident. The authors of the report concluded that the Applicant experienced an instantaneous change in speed of 18 to 27 km/h. They concluded that the Applicant would have moved forward in the vehicle with her head or face contacting the deploying airbag and then hit the headrest upon rebound. It is noted in the report that front airbag deployment in a vehicle such as the Applicant’s typically requires an instantaneous change of at least 18km/h.
Functionality following the accident – Ambulance report
33The Respondent is fixated on information in the ambulance report and, in my view, has placed undue weight upon the information in it. The ambulance report notes that the Applicant denied any loss of consciousness, neck, or back pain in the accident. In the past medical history section in the ambulance report, it states that the Applicant had memory problems identified by her husband, not currently being treated.
34I give this comment on pre-accident memory problems in the ambulance report little weight. It is a one-off comment that is not repeated anywhere else in the Applicant’s medical record. The comment is from someone who speaks English as a second language, and was recorded during a time of emergency in which his wife sustained a fractured wrist and other injuries.
35Moreover, the Applicant’s husband, [O], testified and denied that the Applicant suffered from memory problems prior to the accident. [O] testified the Applicant was in good health prior to the accident. Regarding memory issues, he does not recall relaying that information to ambulance staff and suspects it may have something to do with his English language skills, or that he advised that the Applicant occasionally forgot her keys or phone. He said that he did the talking at the hospital following the accident, which is unusual because the Applicant was better at speaking English. [O] recalled that the Applicant was anxious and scared at the hospital, and seemed to not understand when she was asked to sign documents – to him, it was as if she didn’t understand what a signature is. He said that later that night after returning home from the hospital, the Applicant had difficulty sleeping, needed help going to the bathroom, had ongoing headaches, blurred vision, and seemed weak.
36When considering whether the Applicant was exhibiting signs or symptoms of dementia prior to the accident, I place great weight on the information in the decoded OHIP summary. Specifically, there are no entries in the nearly three-year period leading up to the accident. As noted, the Applicant sought no OHIP-funded medical attention between December 2017 and September 13, 2020, the date of the accident. This suggests that the Applicant was in good health prior to the accident as she needed no medical care. Alternatively, if the Applicant had been developing dementia, the symptoms were so minute that they never warranted medical attention. Whereas, following the accident, the Applicant has demonstrated a severe increase in her dementia symptoms and severe decrease in her functionality.
Functionality following the accident – Evidence of severe decline
37I find that the Applicant exhibited severe decline in her cognitive function following the accident. This is exemplified in the loss of her ability to speak English, pay bills, communicate with others, and manage her ADLs.
38The Applicant became unable to speak English following the accident. By the accounts by her husband and daughter, the Applicant spoke English well prior to the accident. The Applicant taught English prior to immigrating to Canada, lived in an English-speaking community for over 20 years, and worked in commercial retail as a nutritionist for several years. All this occurred prior to the accident, confirming that the Applicant had, at minimum, a reasonable command of the English language. Both [O] and [M.L] testified that, following the accident, the Applicant had a steady and rapid decline of her ability to speak English. The Applicant’s inability to speak English following the accident highlights the impact that the accident had on her.
39The Applicant’s immediate decline was identified by Dr. Takallou, chiropractor. The Applicant met with Dr. Takallou on September 16, 2020, a few days following the accident. During that meeting, Dr. Takallou observed that the Applicant reported a loss of consciousness in the accident, and severe confusion, dizziness, and double vision thereafter. Dr. Takallou also noted that the Applicant didn’t understand the English language following the accident, despite previously teaching English, and that she didn’t recall her signature when asked to sign intake forms. Dr. Takallou insisted that the Applicant be seen assessed via CT or MRI of the head and neck as a result of the examination.
40More glaring an example of severe cognitive decline following the accident is the Applicant’s attempt to pay for a long-distance phone charge. Prior to the accident, the Applicant would use a third-party company to make overseas calls with family members. Typically, the charges would total no more than $10.00 per month. However, on September 22, 2020, nine days after the accident, the Applicant sent the balance of her bank account, over $6,000.00, to the third-party calling company to pay a bill that is typically less than $10.00. Her husband testified that he confronted her about the payment, but that she didn’t understand what she did wrong.
41Anther example of severe cognitive decline is that the Applicant forgot the telephone number of emergency services (911). It was recorded in the attendant care assessment IE report, by OT N. van Loenen, dated December 8, 2020, that the Applicant was reliant on her husband to be able to execute instructions during physical and functional testing. She had difficulty with verbal expression during the assessment, and exhibited significant difficulties in terms of orientation, working memory, ability to attend and maintain concentration, process information, comprehend, or express herself. Most glaring was that the Applicant was unable to recall the telephone number to dial for emergency services (911). Following the assessment, OT van Loenen concluded that the Applicant required up to $4,060.30 per month in ACB services.
42I give no weight the Respondent’s premise that the Applicant was working as a painter at the time of the accident due to her cognitive decline. There is no evidence to suggest that is the case. The evidence demonstrates that the Applicant is an immigrant to the country and had limited work experience in Canada. It shows that she worked as an associate in a pharmacy as well as at a coffee shop until she moved and could no longer get to those places of work. On a balance of probabilities, it is most likely that she was working as a painter due to her move and plans to retire abroad, rather than due to cognitive decline.
It is probable that the accident accelerated the Applicant’s cognitive decline
43I find that the Applicant’s cognitive decline as a result of her neurocognitive disorder was accelerated by the accident.
44I place weight on the findings of Dr. M. Maria, neurologist, who found that the Applicant had a concussion as a result of the accident and that her impairments stemmed from the concussion. Following the MRI report, the Applicant was referred by the hospital to Dr. Maria, and they had a telephone consultation together on October 16, 2020. Dr. Maria reported that the Applicant’s symptoms of cognitive change, headaches, anxiety and fear of getting in a car, are likely on account of a concussion and that the hemiatrophy in her brain is incidental. Dr. Maria was also concerned about the Applicant’s mood changes limiting her recovery. In a follow-up consultation regarding post-concussive symptoms on February 16, 2021, Dr. Maria noted that the Applicant had reverted back to speaking Ukrainian since the accident, which was the case at the initial visit. Dr Maria also highlighted that the Applicant continues to struggle with headaches, poor concentration, difficulty focusing on a conversation, with a significant startle and is scared with any loud noises. Dr. Maria’s reports strongly suggest that the Applicant’s impairments arose as a result of concussion sustained in the accident.
45I find that the opinion of Dr. J. Liang, neurologist, supports a finding that the accident at minimum, accelerated the presentation of the Applicant’s neurocognitive disorder. In a consultation report, dated October 4, 2021, Dr. Liang concluded that the Applicant sustained at least a mild traumatic brain injury in the accident, and that one potential explanation for her presentation is that the accident unmasked an underlying neurocognitive disorder.
46I place weight on the opinion of Dr. Van Reekum. Dr. Van Reekum assessed the Applicant, with her husband and daughter present, and issued a report, dated March 9, 2024. Dr. Van Reekum concluded that the Applicant would not be suffering from her current issues but for the accident. Specifically, Dr. Van Reekum found that the accident was a significant contributor to the Applicant’s mental health sequalae and was unable to find any other identifiable factors. Dr. Van Reekum acknowledged the asymmetry outlined in the Applicant’s MRI report, dated September 20, 2020, but highlighted that the asymmetry was within normal limits and testified that, even if she had a neurocognitive disorder prior to the accident, it never impaired her function to a clinically significant level. Dr. Van Reekum was also persuaded by the September 2021 MRI report, which showed no change from the 2020 MRI. To the neuropsychiatrist, the lack of change is inconsistent with a progressing dementing illness, and that further atrophy would be expected if the Applicant was suffering from the issue prior to the accident.
47Dr. Van Reekum considered whether the accident was the cause of the Applicant’s impairments, and concluded that it was. Dr. Van Reekum was persuaded by the temporal relationship between the accident and the onset of the Applicant’s impairments. Dr. Van Reekum highlighted the impact in the Applicant’s function that was felt immediately following the accident such as her inability to speak English, understand forms, and pay bills, and that these issues were non-existent prior to the accident.
48I also place weight on the opinion of Dr. V. Basile, neurologist, who assessed the Applicant, issued a report, dated March 18, 2021, and testified during the hearing. Dr. Basile concluded that the Applicant sustained a traumatic brain injury in the accident which triggered her current neurocognitive disorder. Dr. Basile put great weight on the fact that the Applicant reverted back to her native language and highlighted that a head injury can cause such a reversion. Dr. Basile concluded that it is likely the Applicant had an underlying neurodegenerative process ongoing at the time of the accident given that her symptoms started immediately following the accident. Dr. Basile ruled out any pre-accident impairment from the neurodegenerative process because the Applicant showed no signs or symptoms of the process and appeared to be coping without issue. Dr. Basille felt that the temporal relationship between the accident, the onset of the Applicant’s symptoms, and the Applicant’s precipitous decline thereafter all point to a conclusion that the accident is the cause of her current presentation.
49The Applicant was referred by neurologist, Dr. Maria, to another neurologist, Dr. S. Mitchell. Following meetings on December 9, 2022 and March 24, 2023, Dr, Mitchell concluded that the Applicant had a history of rapid progressive cognitive decline precipitated by a concussion in September 2022.
50Dr. J. Rai assessed the Applicant and issued an insurer’s examination (“IE”) report, dated October 8, 2021. In the IE report, Dr. Rai questioned the Applicant’s efforts due to her excessively low scores achieved in testing. In testimony, Dr. Rai partly changed her opinion and agreed that the Applicant was putting forward a true effort during the assessment. However, Dr. Rai maintained that the Applicant must have suffered from greater cognitive impairment prior to the accident than what was documented, because imaging indicated atrophy and myopathic changes in the Applicant’s brain. Dr. Rai believed that, since atrophy and myopathic changes don’t occur in the short-term, the Applicant must have been more impaired than initially believed prior to the accident. Dr. Rai’s conclusion that the Applicant must have been more impaired prior to the accident known holds little weight considering there is no basis for the opinion – Dr. Rai agreed in testimony that there is no evidence indicating that the Applicant suffered from any cognitive impairment prior to the accident.
51I discount the opinion of Dr. M. Angel, neurologist, in the report dated October 8, 2021. This is because Dr. Angel concluded that there was no clinical evidence to suggest the Applicant sustained a concussion in the accident, which is contrary to the conclusions of virtually all other practitioners who examined her. In the report, and in testimony, Dr. Angel concluded that the Applicant never sustained a concussion or a meaningful brain injury as a result of the accident, based on the ambulance report and emergency room records. Dr. Angel’s opinion on whether the Applicant sustained a meaningful brain injury is an outlier and inconsistent with the other medical opinions and records. Further, in the report, Dr. Angel concludes that the mechanism of the accident could not have possibly resulted in her current neurological state. Yet, in testimony, Dr. Angel agreed that it is possible that the accident caused the presentation of the Applicant’s impairments to occur. Further, Dr. Angel agreed that the example of the Applicant paying $6,000.00 for a $9 or $10.00 bill supports the hypothesis that the Accident caused the presentation of the Applicant’s neurocognitive issues.
52I agree with the bulk of the medical professionals in evidence before me that the Applicant sustained a concussion as a result of the accident. I further find that the impact of the concussion caused the Applicant to begin to suffer from symptoms of a neurocognitive disorder, such as her immediate inability to speak English, and then her rapid decline from being able to engage in any meaningful verbal conversation, or care for herself. Thus, I conclude that the onset of the Applicant’s neurocognitive disorder would not have occurred but for the accident.
The Applicant’s condition falls under a mental and behavioural impairment
53I disagree with the Respondent that the Applicant’s condition is excluded from a criterion 8, mental and behavioural, catastrophic impairment.
54In testimony and the report, dated March 4, 2025, Dr. V. Sivasubramanian, psychiatrist, concluded that the Applicant’s impairments were neurological or neurocognitive in nature and that they were not psychiatric in nature and therefore not mental or behavioural issue captured under criterion 8. Thus, Dr. Sivasubramanian concluded that the Applicant could not meet the criteria under criterion 8 of the Schedule, because she did not suffer from a mental or behavioural impairment. Dr. Sivasubramanian’s opinion is the basis for the Respondent’s position that neurocognitive disorders are excluded from a criterion 8 catastrophic mental and behavioural impairment.
55I find that the Respondent’s and Dr. Sivasubramanian’s conclusion to exclude neurocognitive impairments is too narrow to comply with the purpose of the Schedule. This is because the Schedule is consumer protection legislation which must be interpreted in favour of providing broad coverage to those injured in motor vehicle accidents. Thus, a broad interpretation in favour of the Applicant must be considered when applying the Schedule. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”) lists neurocognitive disorders under mental and behavioural disorders. The Schedule, under criterion 8 mental and behavioural impairments, does not have any language which would suggest that certain disorders listed as mental and behavioural disorders in the DSM-5 are to be excluded from the category. Likewise, the AMA Guides do not impose any limitation on which mental and behavioural impairments listed in the DSM-5 should or should not be considered when evaluating a catastrophic impairment. Further, I find that the narrow interpretation does not appreciate that a neurocognitive disorder can cause mental and behavioural impairments, as exemplified in the Applicant’s case. Thus, I conclude that the intent of the legislation is to include all mental and behavioural disorders in the DSM-5 when considering a criterion 8, mental and behavioural impairment.
56Accordingly, I find that a neurocognitive disorder is captured under criterion 8. Given the evidence of the Applicant’s functionality following the accident, particularly the opinions of Dr. Van Reekum and Dr. Sivasubramanian who believe the Applicant suffers from extreme impairments in the domains of ADLs and social functioning, it follows that the Applicant sustained a catastrophic impairment as a result of the accident.
INCOME REPLACEMENT BENEFITS (“IRBs”)
Test for entitlement
57To qualify for IRBs, for the first 104 weeks following the accident, the Applicant must demonstrate that she suffers a substantial inability to complete the essential tasks of her employment at the time of the accident. After 104 weeks, the Applicant must demonstrate 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.
58The Respondent does not dispute that the Applicant is impaired from completing the essential tasks of her employment, nor does it dispute that the Applicant suffers from a complete inability to engage in employment that she is reasonably suited by way of education, training, or experience. Instead, it submits that the Applicant’s entitlement turns on whether the accident caused her neurodegenerative disorder. It maintained that the Applicant’s impairments were not as a result of the accident.
59It is clear that the Applicant has been impaired from working since the date of the accident. Initially, her disability was dominated by her fractured wrist – leaving her unable to complete the essential tasks as a painter. As the Applicant’s physical ability improved, her cognitive ability declined substantially. While it is possible that the Applicant may have been able to return to work as a painter once her wrist healed, that physical ability was diminished as quickly as it appeared, due to the rapid decline in cognitive ability. Recall that the Applicant could no longer remember the number for emergency services by December 2020 – it would be unreasonable to expect a person with such substantial cognitive decline to engage in any work.
60Having found that the Applicant’s impairments are as a result of the accident, and that those impairments preclude her from engaging in any employment or self-employment for which she is reasonably suited, it follows that the Applicant is entitled to IRBs as claimed.
Quantum
61I find that the Applicant is entitled to a weekly quantum of IRBs of $347.67 per week.
62My determination of the Applicant’s quantum of IRBs is based on the report by A. Sharma, CPA, CA, dated November 26, 2020. This report is uncontested and no party to this dispute has identified any errors or omissions which would cause me to discount the report.
ATTENDANT CARE BENEFITS (“ACBs”)
63Having determined that the Applicant’s current presentation is as a result of the accident, it follows that her requirement for ACBs is also as a result of the accident. Thus, the Applicant is entitled to all reasonable and necessary expenses incurred by her as a result of the accident for services provided by an aide or attendant or by a long-term care facility. The amount of monthly expenses related to ACBs must be determined in accordance with an “Assessment of Attendant Care Needs” (“Form-1”).
64The Applicant submits that there is no doubt that her need for ACBs exceeds the $6,000.00 monthly funding limit provided by the Schedule, for any person who sustains a catastrophic impairment. She relies on a Form-1 by registered nurse L. Listar, dated October 6, 2020, proposing $6,024.54 in ACBs per month. She also relies on a Form-1 completed by OT R. Zakrzewski, dated June 25, 2021, seeking $10,375.21 per month.
65The Respondent relies on the Form-1 completed by registered nurse N. van Loenen, dated November 24, 2020, proposing $4,060.30 in ACBs per month, and the Form-1 by OT S. Szainwald, OT, dated October 8, 2021, which concluded that the Applicant’s impairments were not as a result of the accident based on the opinions of Dr. Angel and Dr. Rai.
66I place significant weight on the Applicant’s Form-1 reports because they are an accurate reflection of her needs related to ACBs. The Applicant exhibited significant cognitive issues immediately following the accident when she lost her ability to speak English and lost the ability to pay bills. This downward trajectory continued for the Applicant. By December 2020, the Applicant could not recall the telephone number for emergency services. This demonstrates that the Applicant was suffering from significant cognitive impairment and requires continuous care.
67I place no weight on the Form-1 by OT Szainwald. The opinion in this assessment and Form-1 is tarnished by the reliance of Dr. Angel’s opinion that the Applicant’s impairments are not as a result of the accident.
Has the Applicant incurred expenses related to ACBs?
68To-date, I find that the Applicant has incurred expense related to ACBs, but it appears that the Respondent has paid for those expenses.
69The evidence demonstrates that the Applicant has incurred approximately $13,842.57 in ACBs during the period from April 2021 to September 30, 2021. The invoices for these services are included in the documents before me. Likewise, the Standard Benefit Statements (“SBSs”) are also before me. The SBSs suggest that the Respondent has paid the invoices; however, the amounts invoiced and the amounts paid differ slightly, and I am not privy to the reasons why.
70In any event, the Applicant is entitled to ACBs incurred to-date. In the same vein, the Respondent is entitled to credit for the amounts paid to-date. Having concluded that the Applicant is entitled to the ACBs claimed, and that the Respondent has paid some, perhaps all, of the expense claimed, I leave it to the parties to work out any outstanding amounts payable.
Should ACBs be deemed incurred?
71I find that no ACBs should be deemed incurred.
72The Applicant submits that I should deem ACBs to be incurred where they were unreasonably withheld. She submits that the benefits were unreasonably withheld because the Respondent never sought an updated opinion from its IE assessors when new medical information was provided. She highlights that, in testimony, Dr. Angel and Dr. Rai both changed their minds with respect to the Applicant’s impairments, and Dr. Sivasubramanian never concluded on causation in the March 4, 2025 report, instead characterizing the reason for the Applicant’s impairments as “unclear”.
73The Respondent submits that there is no reason to deem ACBs incurred because it relied on the opinion of the section 44 assessors when adjusting the Applicant’s claim. It suggests that there is no evidence the benefits were not incurred due to unreasonable withholding or delayed payment of ACBs. Thus, it submits that no benefit be deemed incurred.
74Section 3(8) of the Schedule provides that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of the benefit, the Tribunal may deem the expense to have been incurred.
75I find that the benefits should not be deemed incurred because there is no evidence of unreasonable withholding or delay of the benefit. On October 14, 2020, the Respondent agreed to pay ACBs up to the non-catastrophic funding limit of $3,000.00 per month. This is proper adjusting of the Applicant’s claim because it had not been determined whether her impairments meet the definition of a catastrophic impairment. Moreover, in 2021 as outlined above, the Respondent paid the Applicant’s invoices related to ACBs, some of which exceeded the $3,000.00 monthly limit for a person who has not been deemed to have sustained a catastrophic impairment. There is no evidence to suggest that the Applicant never incurred ACBs due to any unreasonable withholding of the benefit by the Respondent.
76Accordingly, I find no evidence to deem ACBs to be incurred. However, I reiterate that moving forward the Applicant is entitled to up to $6,000.00 per month in ACBs, subject to the expense being incurred.
$2,901.84 plan for chiropractic and massage therapy, dated May 7, 2021, and $4,347.12 plan for aquatherapy and massage therapy, dated May 7, 2021
77I find that these plans are reasonable and necessary as a result of the accident.
78The plan in the amount of $2,901.84 proposes chiropractic and massage therapy to reduce pain, increase strength and range of motion, and return the Applicant to activities of normal living. The plan notes that the Applicant has had slow progress due to cognitive changes and that treatment will help return her to her pre-accident levels. The fees related to the plan are in accordance with the Professional Services Guideline (“PSG”).
79The plan in the amount of $4,347.12 proposes exercise and massage therapy in a pool environment to reduce pain, increase strength and range of motion, and return the Applicant to activities of normal living. It specifically notes goals of improving the Applicant’s flexibility, balance and coordination, building muscle strength, and reduce her stress and promote relaxation. The plan notes that the Applicant has had slow progress due to multiple injuries and cognitive changes and that treatment will help return her to her pre-accident levels. The fees related to the plan are in accordance with the PSG.
80There is a consensus that the Applicant should engage in exercise and return to her regular activities of daily life. Clearly, her service providers find that engaging in exercise and returning to activities off daily living are reasonable and necessary given that they submitted the plan for approval. In the IE report of Dr. J. Aguste, dated October 8, 2021, Dr. Aguste agreed that the Applicant should participate in an exercise program, but felt it could be a home-based and self-directed program, performed without the assistance of a health care provider.
81It is untenable to expect the Applicant to engage in a self-directed home-based exercise program considering her substantial cognitive impairments. As noted previously, the Applicant was showing significant signs of cognitive impairment from the accident as early as September 2020, when she paid thousands of dollars for a $9 to $10 long-distance phone bill. By December 2020, she no longer remembered the number for emergency services. It is unreasonable to expect a person with such severe cognitive impairments to independently engage in a self-directed home-based exercise program.
82Having found that the Applicant requires exercise and physical treatment as a result of the accident, with consideration for her inability to independently engage in the activities, I find that the guided exercise programs proposed in these plans are reasonable and necessary as a result of the accident.
$2,932.02 plan for psychological services, dated May 7, 2021
83This psychological treatment plan was partially approved by the Respondent. The unapproved balance of $149.61 relates to brokerage fees charged together with the plan.
84I find that the Applicant has not demonstrated that the brokerage fees are reasonable and necessary as a result of the accident. The Applicant has not explained what brokerage fees are, nor how they may be payable under the Schedule. Absent any information to the contrary, I find that brokerage fees are charges or surcharges that have the result of increasing the effective hourly rates outlined in the PSG. Accordingly, I find that the Applicant had not met her onus to demonstrate entitlement to the unapproved balance of this psychological treatment plan.
$3,922.75 plan for occupational therapy services, dated September 20, 2021
85This plan for occupational therapy services was partially approved by the Respondent. The unapproved portion relates to $132.00 for mileage for the service provider.
86I find that the Applicant has not met her onus to demonstrate that the unapproved balance is reasonable and necessary as result of the accident. I find no entitlement for the service providers mileage because expenses for travel time of the service provider was also approved. Approving both the mileage and travel time is essentially a duplication of services which is not the intent of the Schedule or the PSG.
INTEREST
87Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that certain benefits are payable, it follows that the Applicant is entitled to interest, as applicable.
AWARD
88I find no award payable.
89The Applicant sought an award under section 10 of Regulation 664. Under section 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.
90The Applicant seeks on award on the basis that the Respondent’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. She submits that the Respondent ignored pertinent information, adhered to a dated opinion, and failed to reassess upon receiving additional medical information.
91I find that the Applicant has not demonstrated that she is entitled to an award. The Applicant has not demonstrated that the Respondent ignored or unnecessarily discounted medical opinions. I acknowledge that there are certain records that were provided to the Respondent following the issuing of IE reports by Dr. Angel and Dr. Rai that would impact their findings. However, in testimony, both assessors concluded that despite an impact to their opinion, the new information does not change their opinion on the causal connection between the accident and the Applicant’s current presentation. In other words, the information would not change the basis of their opinion – that the mechanism of the accident could not lead to the neurocognitive disorder that the Applicant is suffering from. Dr. Angel and Dr. Rai’s opinions are somewhat consistent with the opinion of Dr. Sivasubramanian, who opined that the Applicant never sustained a catastrophic impairment because a neurocognitive impairment is not captured under criterion 8.
92I find that the Applicant has not demonstrated that she provided information to the Respondent that was ignored or unnecessarily discounted, that led to the unreasonable withholding of benefits. The Respondent sought the opinion of Dr. Sivasubramanian upon receipt of the Applicant’s CAT reports, which is a reasonable means to adjust the Applicant’s claim. Dr. Sivasubramanian determined that the Applicant never sustained a catastrophic impairment because a neurocognitive disorder was not a mental and behavioural disorder. The Respondent relied on Dr. Sivasubramanian’s opinion, which was somewhat consistent with to the opinions of Dr. Angel and Dr. Rai, who both concluded that the Applicant’s neurocognitive impairments must have pre-dated the accident. This is not unreasonable and not indicative of an excessive, imprudent, stubborn, inflexible, unyielding, or immoderate behaviour by the Respondent.
93Accordingly, I find no award payable.
COSTS
94I find no costs payable.
95Costs may be granted in the event the Tribunal determines that a party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.
96The Applicant sought costs from the Respondent on the grounds that it acted unreasonably by failing to provide updated medical information to its experts, and for taking the position that a neurocognitive disorder is not a mental disorder.
97I find no costs payable because the Respondent never acted unreasonably, frivolously, vexatiously, or in bad faith during the proceeding. The Applicant’s request stems from conduct outside of the Tribunal’s dispute resolution process. Having not demonstrated any unwarranted behaviour during the proceeding, it follows that the Respondent is not liable to pay costs.
CONCLUSION AND ORDER
98The Applicant sustained a catastrophic impairment as a result of the accident.
99The Applicant is entitled to IRBs at the weekly rate of $347.67, for the period from September 20, 2020 to-date and ongoing, plus interest pursuant to section 51 of the Schedule.
100The Applicant is entitled to ACBs in the amount of $13,842.57, less the amounts paid by the Respondent, plus interest pursuant to section 51 of the Schedule, if applicable.
101The Applicant is entitled to incur expenses related to ACBs at the rate of $6,000.00 per month.
102The Applicant is entitled to the treatment plan in the amount of $2,901.84, dated May 7, 2021, plus interest pursuant to section 51 of the Schedule.
103The Applicant is entitled to the treatment plan in the amount of $4,347.12, dated May 7, 2021, plus interest pursuant to section 51 of the Schedule.
104The Applicant is not entitled to the unapproved balances related to the treatment plans, dated September 20, 2021, and April 2, 2022
105No award or costs are payable.
Released: September 3, 2025
Brian Norris
Adjudicator