Citation: Swire v. Zenith Insurance Company, 2026 ONLAT 23-009587/AABS

Licence Appeal Tribunal File Number: 23-009587/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Alexandra Swire

Applicant

and

Zenith Insurance Company

Respondent

DECISION

ADJUDICATOR: Caley Howard

APPEARANCES:

For the Applicant: Julie Kern, Counsel

For the Respondent: Michelle Qiu, Counsel

HEARD: By way of review of the transcript and exhibits from the videoconference hearing held August 6-8 and 12-13, 2024

1Alexandra Swire, the applicant, was involved in an automobile accident on July 20, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by the respondent, Zenith Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2After a five-day videoconference hearing, the hearing adjudicator found that the applicant did not demonstrate that she was catastrophically impaired based on Criterion 8. The hearing adjudicator further found that the applicant was not entitled to any of the treatment plans, an award, or interest.

3On July 2, 2025, the applicant requested reconsideration of the Tribunal's decision released June 10, 2025. Pursuant to the reconsideration decision released October 29, 2025, the Tribunal granted the applicant's request for reconsideration, cancelled the decision and ordered a rehearing to be conducted by a new adjudicator reviewing the existing record.

4Therefore, my decision is based on my review of the transcripts and audio recordings of the videoconference hearing that took place on August 6-8, 12 and 13, 2024 and the documents that the parties marked as exhibits during the hearing.

ISSUES

5The issues in dispute are:

i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

ii. Is the applicant entitled to $2,518.44 for a psychiatric assessment, proposed by Q Medical in a treatment plan/OCF-18 ("plan") submitted August 31, 2022?

iii. Is the applicant entitled to medical services proposed by E-Clinic United Healing, as follows:

(a) $34,100.00 for psychological services, in a plan submitted July 17, 2023; and

(b) $1,983.40 for chiropractic services, in a plan submitted November 8, 2022?

iv. Is the applicant entitled to medical services proposed by Scarborough Medical Centre, as follows:

(a) $2,883.20 for chiropractic services, in a plan submitted September 29, 2021;

(b) $2,396.00 for assistive devices, in a plan submitted September 8, 2021;

(d) $4,326.14 for chiropractic services, in a plan submitted December 3, 2021;

(e) $3,192.27 for psychological services, in a plan submitted January 17, 2022;

(f) $25,619.01 for rehabilitation support worker services, in a plan submitted February 15, 2022; and

(g) $850.00 for a nutritional assessment, in a plan submitted August 24, 2021?

v. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Unika Medical Centre in a plan submitted January 7, 2022?

vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

6Issue 6, as set out in the Case Conference Report and Order dated February 23, 2024, seeking payment of an invoice for attendant care services, was withdrawn.

RESULT

7I find that:

i. The applicant is not catastrophically impaired.

ii. The applicant is entitled to such treatment plans as I have found to be reasonable and necessary up to the non-MIG non-catastrophic limit of $65,000.00, should any funds remain.

iii. The treatment plan for a psychiatric assessment, submitted August 31, 2022, is reasonable and necessary.

iv. The treatment plan for psychological services, submitted July 17, 2023, is not reasonable and necessary.

v. The treatment plan for chiropractic services (yoga therapy), submitted November 8, 2022, is not reasonable and necessary.

vi. The treatment plan for chiropractic services, submitted September 29, 2021, is not reasonable and necessary.

vii. The treatment plan for assistive devices, submitted September 8, 2021, is not reasonable and necessary.

viii. The treatment plan for psychological services, submitted December 3, 2021, is reasonable and necessary.

ix. The treatment plan for chiropractic services, submitted December 3, 2021, is not reasonable and necessary.

x. The treatment plan for psychological services, submitted January 17, 2022, is reasonable and necessary.

xi. The treatment plan for rehabilitation support worker services, submitted February 15, 2022, is not reasonable and necessary.

xii. The treatment plan for a nutritional assessment, submitted August 24, 2021, is not reasonable and necessary.

xiii. The treatment plan for a chronic pain assessment, submitted January 7, 2022, is reasonable and necessary.

xiv. The applicant is entitled to interest on any overdue benefits.

xv. The respondent is not liable to pay an award under s. 10 of Reg. 664.

PROCEDURAL ISSUES Addressed at the videoconference hearing

Admissibility of witness testimony

8On the first day of the hearing, the respondent brought a motion to exclude the testimony of Dr. Ramji and Isabelle Zonenberg. The applicant withdrew Ms. Zonenberg as a witness.

9The respondent submitted that Dr. Ramji had a personal relationship with the applicant as her long-time family doctor and was therefore not an impartial witness. The applicant agreed that Dr. Ramji had a personal relationship with the applicant but submitted that he was being called as a lay witness, not as an expert to give a medical opinion.

10The hearing adjudicator ordered that Dr. Ramji could testify as a lay witness. The hearing adjudicator further clarified that while Ms. Zonenberg was no longer being called to testify at the hearing, her reports were admissible.

Requiring the attendance of a representative from ODSP

11The respondent also sought an order requiring a representative from Ontario Disability Support Program ("ODSP") to attend at the hearing for cross-examination. The respondent submitted that such a witness was necessary to speak to the applicant's pre-accident health condition. The applicant submitted that the applicant's ODSP file had been produced and it was not necessary to produce a witness to speak to it.

12The adjudicator ordered that a short cross-examination of a representative of ODSP would be permitted if the respondent could produce one, but declined to issue a summons as the request was outside of the required time limits. No witness from ODSP testified at the hearing.

ANALYSIS

The applicant is not catastrophically impaired

13I find that the applicant is not catastrophically impaired (CAT).

14In order to be found CAT the applicant must demonstrate, on a balance of probabilities, that she sustained an accident-related impairment that is defined as catastrophic under the Schedule. Criterion 8 determinations under the Schedule use the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition ("AMA Guides").

15The AMA Guides refer to four areas of function, which are: activities of daily living ("ADLs"); social functioning; concentration, persistence and pace ("CPP"); and adaptation.

16Mental and behavioural impairments are rated according to how seriously they affect a person's useful daily functioning in each of the four areas. The levels are explained in the following table:

Area 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-life setting)

17For the Tribunal to find that the applicant has sustained a catastrophic impairment under Criterion 8, the applicant must show that, as a result of a mental or behavioural disorder, she has an extreme level of impairment in any one of the four areas of function or that she has a marked level of impairment in at least three of the four areas of function. The applicant has the onus of proving this on a balance of probabilities.

18The applicant submits that she sustained a mental or behavioural disorder as a result of the accident, which caused her to sustain a marked impairment in three areas of function: ADL, CPP and adaptation. The applicant does not submit that she sustained a marked impairment in the social functioning domain.

19The respondent submits that the accident did not cause the applicant to sustain a marked impairment in any of the four areas of function.

20For the reasons that follow, I find that the applicant is not catastrophically impaired under Criterion 8 as she has not proven on a balance of probabilities that she sustained a marked impairment in three out of four of the areas of function.

The applicant sustained a mental or behavioural disorder as a result of the accident

21I find that the applicant sustained a mental or behavioural disorder as a result of the accident.

22The applicant submits that she sustained a number of psychological disorders as a result of the accident, namely: Major Depressive Disorder, repeat episode, chronic, moderate; Anxiety Disorder Not Otherwise Specified (with features of PTSD); Generalized Anxiety Disorder; and Pain Disorder Associated with both Psychological Factors and a General Medical Condition. In support of her position, she relies on the testimony and the CAT psychiatric assessment report of Dr. William Gnam, Psychiatrist, dated January 31, 2022.

23The respondent submits that the applicant had a number of mental or behavioural disorders that pre-existed the accident, although it acknowledges that the pre-existing disorders were likely made worse by the accident and that the applicant's somatic symptom disorder was caused by the accident. In support of its position, it relies on the testimony and the CAT psychiatric insurer's examination (IE) report of Dr. Velan Sivasubramanian, Psychiatrist, dated February 13, 2023.

24Dr. Gnam opined that, as a result of the accident, the applicant suffers from: Major Depressive Disorder, repeat episode, chronic, moderate; Anxiety Disorder Not Otherwise Specified (with features of PTSD); Generalized Anxiety Disorder; and Pain Disorder Associated with both Psychological Factors and a General Medical Condition.

25Dr. Sivasubramanian opined that the applicant would likely have met the criteria for persistent depressive disorder, obsessive-compulsive disorder, panic attacks and perhaps generalized anxiety disorder prior to the accident. He opined that after the accident, she developed Somatic Symptom Disorder with predominant pain as well as exacerbation of her pre-existing mood and anxiety symptoms. He went on to state that he was in general agreement with Dr. Gnam's diagnostic impressions, only he thought that Dr. Gnam had not given sufficient consideration to the applicant's pre-existing impairments in his analysis.

26I find that while they disagreed with respect to the extent of the applicant's impairments, both Dr. Gnam and Dr. Sivasubramanian opined that the applicant developed a psychiatric impairment as a result of the accident.

27Therefore, I find that the applicant has proven, on a balance of probabilities, that she sustained a mental or behavioural disorder as a result of the accident.

28The parties agreed that the applicant did not sustain a marked impairment in the area of social functioning.

The applicant sustained a moderate impairment in the area of ADLs

29I find that the applicant has not proven that she sustained a marked impairment in the area of ADLs. Rather, I find that she sustained a moderate impairment in this sphere of functioning.

30The AMA Guides specify that activities of daily living include self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitation in these activities should be related to the person's mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual's overall situation. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

31The applicant submits that she sustained a marked impairment in the sphere of ADLs. The applicant submits that while she had significant impairments pre-accident, that her accident-related mental and behavioural impairments significantly impede her useful functioning compared to her pre-accident level of functioning. In support of her position, she relies on her testimony, on the testimony and report of Dr. Gnam, and on the Occupational Therapy Activities of Daily Living (In-Home) Assessment Report of Montana Mullane, Occupational Therapist, dated February 21, 2023, as well as Ms. Mullane's Situational Assessment Report, also dated February 21, 2023.

32The respondent submits that the applicant sustained, at most a moderate impairment in the sphere of ADLs. The respondent submits that the applicant suffered from serious impairments before the accident, and that her accident-related mental and behavioural impairments do not significantly impede useful functioning. In support of its position, it relies on the testimony and report of Dr. Sivasubramanian and the clinical notes and records (CNRs) of Dr. Shaffiq Ramji, the applicant's family doctor.

33The applicant testified that before the accident she felt great, she volunteered several times per week, she worked out in the gym in her building, she travelled locally by walking, taking transit and taxis, she performed housekeeping tasks in her apartment and prepared meals, she was independent with respect to her personal hygiene, she walked her dog and went to the park. The applicant acknowledged that she had pre-existing health concerns, including some historic psychiatric complaints that resulted in in-patient care, a heart attack in 2018, the year prior to the accident, back pain, leg or foot pain, and a rare blood disease. The applicant acknowledged that she has been a recipient of the Ontario Disability Support Program ("ODSP") since approximately 2016.

34The applicant testified that after the accident, she was no longer motivated to maintain her personal hygiene on a regular basis, she was no longer walking her dog, she no longer made jewelry or did any crafting, she was no longer volunteering, she no longer had an intimate relationship with her partner, she was no longer maintaining her apartment to her pre-accident standards, and she avoided taking public transit. She acknowledged that she continued to manage her own medication and her own finances, that she continued to do light housekeeping and prepare small meals, that she continued to walk and use driving services, with specific drivers, to run errands within the community, and that she had started going to the park again, accompanied by her partner's grandmother.

35I find that the applicant's testimony with respect to her post-accident functioning is well supported by the medical documents, including the occupational therapy assessment reports of Ms. Mullane, in which Ms. Mullane observed that the applicant's apartment had piles of miscellaneous items everywhere, including stacks of boxes, and that the applicant reported engaging in hoarding behaviour. Ms. Mullane reported that the applicant appeared unable to cope with even her own personal care tasks and that the applicant reported to her that she lacked the motivation to engage in basic personal hygiene.

36However, I find that the applicant's testimony outlining her pre-accident level of functioning was both internally inconsistent and conflicted with the pre-accident CNRs of Dr. Ramji, her family doctor. Specifically, the applicant testified that she felt "fantastic" prior to the accident. However, Dr. Ramji's note from July 10, 2019 indicates that she reported chronic pain and insomnia, approximately ten days before the accident. Dr. Ramji's notes from July 2018 also indicate that she reported feeling depressed, anxious and having a tough time coping with her medical issues.

37In addition, the applicant testified that she was walking extensively prior to the accident, particularly walking her dog. However, Dr. Ramji's note from July 12, 2018 indicated that she was unable to walk without limping. The applicant also testified that she had experienced recurring foot or leg pain prior to the accident and acknowledged that her ex-husband walked the dog, although it was not clear to what extent or for what periods of time. As a result of these inconsistencies, I give less weight to the applicant's testimony with respect to her pre-accident level of functioning, particularly where it conflicts with the medical records.

38Dr. Gnam opined that the applicant sustained a marked impairment in this sphere of functioning. Dr. Gnam based his opinion on his clinical interview, a review of the applicant's post-accident medical records, the results of psychometric testing and the review of the occupational therapy reports of Elyse Freedman and Tracie Shaw, as well as the social work psychosocial report of Isabelle Zonenberg. Dr. Gnam acknowledged that he did not have access to the pre-accident CNRs of Dr. Ramji during his assessment.

39Dr. Sivasubramanian opined that the applicant sustained at most a moderate impairment due to mental and behavioural disorders attributable to the accident. He further opined that she likely suffered from a number of mental and behavioural disorders at the time of the accident. Dr. Sivasubramanian based his opinion on his clinical interview, a review of the applicant's pre- and post-accident medical records and a review of the multidisciplinary co-assessment reports of Dr. Christopher Hope, Neuropsychologist and Ms. Montana Mullane, Occupational Therapist.

40I give more weight to the opinion of Dr. Sivasubramanian than that of Dr. Gnam because I find that Dr. Sivasubramanian's opinion is supported by the applicant's pre-accident medical records, which indicate that the applicant had significant pre-existing physical and mental and behavioural impairments at the time of the accident. The applicant testified that she stopped working at her most recent part-time employment position in 2018 for mental health reasons. Dr. Ramji's CNRs also confirm that the applicant reported feeling depressed and anxious and having sleep issues to her family doctor in 2018. I find that this supports Dr. Sivasubramanian's opinion as to the applicant's pre-accident level of functioning.

41I do not accept the applicant's submission that Dr. Sivasubramanian inappropriately ignored the results of Ms. Mullane's report. Dr. Sivasubramanian included extensive excerpts from Ms. Mullane's report in his own report. I find that he considered her observations appropriately. However, Dr. Sivasubramanian testified that he attributed many of Ms. Mullane's observations to the applicant's physical disorders and to her pre-accident mental health disorders. I accept Dr. Sivasubramanian's assessment in this respect as this is his function as a medical doctor. Ms. Mullane, as an occupational therapist, is not qualified to make diagnoses or to determine the cause of the applicant's functional impairments.

42I further find that there is evidence that the applicant maintains some useful functioning in this sphere. Specifically, the applicant testified that she continues to manage her own medications and her own finances. Ms. Mullane observed the applicant take medication and eat during her assessment. She reported to Dr. Sivasubramanian that she made attempts to engage in some household chores when she is physically able. This corresponds with her testimony, in which she indicated that she does some light vacuuming, prepares small meals and wipes the counters. She reported to Dr. Sivasubramanian that she continues to go grocery shopping on her own, which corresponds to her testimony, in which she confirmed that she runs errands and uses ride-share services (albeit with specific drivers only) to get around locally. An impairment that allows for some, but not all, useful functioning falls into the moderate category.

43Therefore, I find that the applicant has not proven, on a balance of probabilities, that she sustained a marked impairment in the sphere of ADLs, as a result of the accident. I find that she sustained a moderate impairment in this sphere.

The applicant sustained a moderate impairment in the area of CPP

44I find that the applicant has not proven that she sustained a marked impairment in the area of CPP.

45The AMA Guides describe this domain as the ability to maintain focus and attention long enough to complete tasks in a work setting or in the context of activities of daily living. The time taken to complete tasks is a relevant consideration.

46The applicant submits that she sustained a marked impairment in this sphere. She relies on her own testimony, the testimony and report of Dr. Gnam, the testimony and the Occupational Therapy Community Situational Assessment Report of Tracie Shaw, dated November 16, 2021, and the occupational therapy reports of Ms. Mullane.

47The respondent submits that the applicant sustained at most a moderate impairment in the sphere of CPP. It relies on the testimony and report of Dr. Sivasubramanian and the testimony and report of Ms. Shaw.

48Dr. Gnam opined that the applicant had sustained a marked impairment in this area, relying on the results of the tests administered by Ms. Shaw. Dr. Gnam testified that the results of the tests were clinically supported as the applicant's diagnoses are known to cause problems with attention and working memory. Dr. Gnam testified that the applicant had increased trouble with the tasks that were more work-like. Dr. Gnam testified that the applicant was likely employable at the time of the accident, from a psychiatric point of view, although not from a physical point of view.

49Dr. Sivasubramanian opined that the applicant sustained, at most, a moderate impairment in this area. He considered the reports of Ms. Mullane and Dr. Christopher Hope, Neuropsychologist, and referred to Dr. Hope's opinion that the applicant's psychometric test results and self-reporting were not valid due to the results of her validity tests. Dr. Sivasubramanian acknowledged during his cross-examination that a neurocognitive assessment was not essential to a CAT determination under criterion 8. I give little weight to Dr. Hope's report or the results of his validity testing. I agree with the applicant's submission, as acknowledged by Dr. Sivasubramanian, that a positive diagnosis by a Neuropsychologist was not essential to a CAT determination therefore Dr. Hope's inability to provide such a diagnosis due to the results of validity tests is not central to the issue in dispute.

50Dr. Sivasubramanian also considered the applicant's ability to navigate the community independently, maintain control over her medications, and the fact that she was not working at the time of the accident due to fatigue.

51The applicant acknowledged during her cross-examination that post-accident, when her dog damaged the exterior door to her apartment building, she talked to the landlord about the incident and wrote a letter of apology to the owner of the building. I find that these are work-like tasks, and the applicant's ability to speak to the landlord about a problem and write a letter of apology are examples of the applicant maintaining focus and attention long enough to complete these work-like tasks.

52The applicant also testified that at one point, post-accident, when there was significant accumulation of unnecessary items in her apartment, she called services to have them come and clear excess items from the apartment. I find that identifying the accumulation of items as a problem, identifying services that may provide a solution and arranging for the services to come to her apartment is another example of the applicant maintaining focus and attention to complete a work-like task.

53The applicant acknowledged during her cross-examination that, post-accident, she was helping her ex-husband manage his ODSP file and his finances after he was injured. While she stated this was with the help of a social worker, she did not explain what role the social worker played. I find this is a third example of the applicant maintaining focus and attention to complete a work-like task. However, I give this example less weight as the applicant had some assistance with this task.

54I find that these examples show that the applicant maintains some useful function in the area of CPP. I further find that, as set out above, the applicant likely was more seriously impaired, from a mental and behavioural perspective, prior to the accident, than Dr. Gnam determined in his assessment. I therefore find that Dr. Sivasubramanian's opinion is more consistent with these examples and the applicant's pre-accident medical evidence. Therefore, I give Dr. Sivasubramanian's opinion more weight than Dr. Gnam's opinion.

55Therefore, I find that the applicant has not proven, on a balance of probabilities, that she sustained a marked impairment in the area of CPP. I find that her impairments are consistent with a moderate impairment in this sphere.

The applicant sustained a moderate impairment in the area of adaptation

56I find that the applicant has not proven that she sustained a marked impairment in the sphere of adaptation.

57The AMA Guides explain the area of adaptation, also described as deterioration or decompensation in work or work-like settings, as a repeated failure to adapt to stressful circumstances, which can result in withdrawal from the stressful situation. An impairment in adaptation affects the ability to function across all activity areas. In a work environment, relevant considerations can include attendance, making decisions, scheduling, completing tasks and interacting with others. Regarding activities of daily living, their quality is judged by their independence, appropriateness, effectiveness and sustainability.

58The applicant submits that she sustained a marked impairment in the sphere of adaptation, as evidenced by her withdrawal from her pre-accident activities such as volunteering, going to the park, walking and running errands. She relies on her testimony, the testimony and report of Dr. Gnam, the reports of Ms. Mullane, and the testimony and report of Ms. Shaw.

59The respondent submits that the applicant sustained at most a moderate impairment in this sphere. It submits that the applicant has returned to the majority of her pre-accident activities. The respondent relies on the testimony and report of Dr. Sivasubramanian and the testimony of the applicant.

60The applicant testified that she has not been able to return to volunteering since the accident. However, she acknowledged during her testimony that she has resumed going to the park and running errands, often accompanied by her boyfriend's grandmother. She also testified that she is able to travel locally using ride-share services, although she has certain select drivers with whom she is comfortable. The applicant further testified that she continued to have good relationships with her ex-husband, her boyfriend and other friends and family members after the accident.

61Dr. Gnam opined that the applicant sustained a marked impairment in the sphere of adaptation. He testified that his opinion was based on the amount of anxiety that she reported when she went out into the community and that this report was corroborated by Ms. Shaw's observations and by the applicant's withdrawal from her pre-accident activities, which shows that she has had difficulty adapting to stress.

62Ms. Shaw testified that she needed to support the applicant in order to get through the community testing, as the applicant experienced anxiety. Ms. Shaw observed consistent effort from the applicant throughout her five-hour assessment and therefore believed that the applicant was putting forth a truthful and valid effort. Ms. Shaw also testified that the applicant had rescheduled her initial assessment date, because she became overwhelmed when her dog broke the exterior door to her apartment building.

63Dr. Sivasubramanian opined that the applicant sustained a moderate impairment in this sphere. He testified that he considered the observations of Ms. Mullane when he did his assessment. His report states that his opinion is based on the applicant's considerable pre-accident limitations as well as her continued ability to be relatively independent with her personal care, albeit with reduced frequency, her continued independent navigation in the community, her continued control over her medications and her ability to engage appropriately with Dr. Sivasubramanian throughout the interview.

64While Ms. Mullane reported that the applicant seemed to experience anxiety and heightened reactions to minor stressors in typical daily tasks, I find that Dr. Sivasubramanian took these observations into account when forming his opinion.

65I find that the applicant was generally able to engage and behave appropriately throughout her testimony, which corresponds with the observations of Dr. Sivasubramanian from his clinical interview with the applicant. I further find that the applicant's testimony about her positive relationships with the people in her life and her navigation in the community supports Dr. Sivasubramanian's opinion. I therefore give more weight to Dr. Sivasubramanian's opinion than I give to Dr. Gnam's.

66I find that the applicant has not proven, on a balance of probabilities, that she sustained a marked impairment in the sphere of adaptation. I find that the applicant likely sustained a moderate impairment in this sphere of functioning.

67I find that the applicant has not proven that she sustained a marked impairment in three out of the four spheres of functioning. Therefore, I find that the applicant has not proven, on a balance of probabilities, that she sustained a catastrophic impairment under Criterion 8.

68The applicant claims that she is entitled to a number of treatment plans. The respondent confirmed at the hearing that it had paid $58,537.89 in medical and rehabilitation benefits to date at that time. I find that some of the treatment plans below are reasonable and necessary. The applicant is entitled to payment of the reasonable and necessary treatment plans up to the non-MIG non-catastrophic limit of $65,000.00.

69To 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.

70To receive payment for an assessment proposed in a plan, the applicant has the onus to prove there are reasonable grounds to believe that a condition exists that would warrant further investigation.

The psychiatric assessment proposed on August 31, 2022 is reasonable and necessary

71I find that the applicant has proven that the psychiatric assessment is reasonable and necessary.

72The treatment plan proposing the psychiatric assessment was completed by Dr. Dan Slepakov, Chiropractor. It was submitted on August 31, 2022 and sought funding for $2,518.44. The goals of the treatment plan were to assess the applicant and suggest strategies to mitigate her psychiatric symptoms, which are affecting her return to pre-accident functioning.

73Neither party made submissions with respect to the reasonableness or necessity of this treatment plan. However, both parties led evidence on the issue at the hearing by questioning Dr. Gnam, who conducted the psychiatric assessment proposed in the plan.

74Dr. Gnam testified that the point of the assessment was less about diagnosing the applicant with psychiatric impairments and more about determining which treatments, therapies and medications would help mitigate her symptoms. Dr. Gnam testified that his assessment involved different psychometric tests than he used during his CAT assessment of the applicant, including a different validity test. He then made science-based recommendations for therapy and treatments based on the results of his assessment.

75Dr. Gnam further testified that the right treatment would be important to ensure that the applicant's impairments did not get worse. He also opined that it was reasonable to expect modest incremental improvements over time with continued treatment.

76As stated above, both Dr. Gnam and Dr. Sivasubramanian opined that the applicant sustained a psychological impairment as a result of the accident, although they disagreed with respect to the extent of her impairment. Dr. Gnam's report was dated January 26, 2022 and Dr. Sivasubramanian's report was dated February 13, 2023.

77I find that the treatment plan for the psychiatric assessment was not duplicative of the CAT assessments but focused on determining the appropriate strategy for treating the applicant's impairments. I further find that the applicant has established that she had a psychological impairment at the time the treatment plan was submitted. Therefore, I find that the applicant has proven, on a balance of probabilities, that the treatment plan is reasonable and necessary.

The treatment plan for psychological services submitted on July 17, 2023 is not reasonable and necessary

78I find that the treatment plan for psychological services submitted on July 17, 2023 is not reasonable and necessary.

79The treatment plan for psychological services was completed by Ranya Ghatas, Occupational Therapist. It was submitted on July 17, 2023 and sought funding of $34,100.00 for a 5-day residential retreat program, psychological therapy every two weeks for five years, and a one-year gym membership with a twice-weekly personal trainer. The goals of the treatment plan were to remove the applicant from social isolation, increase her motivation and break avoidance patterns, improve her quality of life and reduce risk of further deterioration.

80Once again, the parties made no submissions with respect to the treatment plan. However, Dr. Gnam testified that this treatment plan was based on the science-based recommendations that he made in his independent psychiatric report dated April 24, 2023.

81Dr. Gnam opined, in his report and during his testimony, that the only way to provide the intensity and multidisciplinary treatment that the applicant required was through a residential program, such as the one recommended in the plan. He testified that the applicant would require the long-term therapy that he recommended in order to make the small, incremental improvements to her functioning that would improve her quality of life. He further testified that exercise has been scientifically shown to help with depression and anxiety, but that there was no way the applicant would stick with an exercise program without a personal trainer due to her reduced motivation.

82I find that the applicant has not established that it is reasonable and necessary to order treatment for five years when the applicant's need for treatment may change during that time period. In the case of ongoing, repeated treatment plans, the onus is on the applicant to show that the treatment goals are being met to a reasonable degree. I find that the applicant fails to meet this onus given the excessive time frame of the proposed treatment.

83I find that some of the costs associated with the retreat are associated with the residential aspect of the program, rather than with treatment. The cost of the retreat program was $8,700.00 for five days and this cost was not addressed or explained by Dr. Gnam or by any submissions of the applicant.

84I further find that Dr. Gnam's testimony respecting a science-based connection between exercise and depression is not sufficient to prove that the proposed program will meet the program goals to a reasonable degree. I further find that the cost of $7,200.00 for a one-year gym membership and a personal trainer was not addressed or explained by Dr. Gnam or by any submissions of the applicant.

85Therefore, I find that the applicant has not proven, on a balance of probabilities, that the treatment plan is reasonable and necessary.

The treatment plan for chiropractic services (yoga therapy) submitted November 8, 2022 is not reasonable and necessary

86I find that the treatment plan for chiropractic services (yoga therapy) is not reasonable and necessary.

87The treatment plan in question was completed by Dr. Keon Kiriew, Chiropractor, and sought $1,983.40 for yoga therapy. It was submitted on November 8, 2022. The goals of the treatment plan are listed as pain reduction, increase range of motion and strength, improve quality of sleep, return to activities of normal living, and increase self-management of pain perception and anxiety.

88Neither party made submissions with respect to the treatment plan. However, attached to the treatment plan was a yoga therapy progress report completed by Elena Kanaki, certified yoga therapist, dated November 4, 2022. Ms. Kanaki's report indicates that she had completed 20 sessions of yoga therapy with the applicant and the applicant reported that the sessions helped with her mood and her sleep. Ms. Kanaki recommended a further 20 sessions.

89I was not referred to any other evidence in respect of this treatment plan. I find that the treatment plan alone, even with the additional comments by Ms. Kanaki, does not persuade me that the goals of the proposed treatment are reasonable in the applicant's situation or that those goals are likely to be met to a reasonable degree.

90Therefore, I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for yoga therapy is reasonable and necessary.

The treatment plan for chiropractic services submitted September 29, 2021 is not reasonable and necessary

91I find that the treatment plan for chiropractic services submitted on September 29, 2021 is not reasonable and necessary.

92The treatment plan in question was completed by Dr. Hetal Patel, Chiropractor, and sought $2,883.20 for chiropractic and massage therapy services. The goals of the treatment plan were listed as: pain reduction; increase strength and range of motion; develop and teach strategies to reduce symptoms; acceleration of healing; return to activities of normal living; return to pre-accident work activities; maximize functional mobility; and prevent re-injury.

93Neither party made submissions with respect to the treatment plan. I find that the treatment plan alone, without submissions or without being directed to evidence in support of the services, does not persuade me that the goals of the proposed treatment were reasonable in the applicant's situation at the time the treatment plan was submitted, or that those goals were likely to be met to a reasonable degree.

94Therefore, I find that the applicant has not proven, on a balance of probabilities, that the treatment plan is reasonable and necessary.

The treatment plan for assistive devices submitted September 8, 2021 is not reasonable and necessary

95I find that the treatment plan for assistive devices, submitted September 8, 2021, is not reasonable and necessary.

96The treatment plan in question was completed by Dr. Svetlana Gabidulina, Psychologist, and sought funding of $2,396.80 for a list of meditation- and yoga-related assistive devices. The goals of the plan were listed as preventing exacerbation of symptoms, return to activities of normal living and enhancing overall well-being.

97Neither party made submissions with respect to the treatment plan. I find that the treatment plan alone, without submissions or evidence in support of the assistive devices, does not persuade me that the goals of the proposed treatment were reasonable in the applicant's situation at the time the treatment plan was submitted, or that those goals were likely to be met to a reasonable degree.

98Therefore, I find that the applicant has not proven, on a balance of probabilities, that the treatment plan is reasonable and necessary.

The treatment plan for psychological services, submitted December 3, 2021, is reasonable and necessary

99I find that the treatment plan for psychological services, submitted December 3, 2021, is reasonable and necessary.

100The treatment plan in question was completed by Dr. Harinder Mrahar, Psychologist, and sought $3,192.27 for psychological therapy. The goal of the treatment plan was to return the applicant to her activities of normal living.

101Neither party made submissions with respect to the treatment plan. However, Dr. Mrahar attached a progress report dated November 5, 2021 to the treatment plan. Dr. Mrahar's report stated that during her previous 12 counselling sessions, the applicant had made some limited progress in understanding how her thinking patterns were contributing to her perception of pain. Dr. Mrahar recommended an additional 12 weeks of therapy to continue to work towards a pre-accident level of functioning.

102In his report of April 24, 2023 and in his testimony, Dr. Gnam recommended long-term psychological counselling for the applicant and opined that it was reasonable to expect modest incremental improvements in her mental health as a result. While Dr. Gnam's report was based on an assessment of the applicant on September 6, 2022, several months after the treatment plan was submitted, I find that the report and testimony of Dr. Gnam supports Dr. Mrahar's recommendations for additional counselling because Dr. Gnam's recommendation specifically addressed the applicant's need for ongoing therapy over a period of several years.

103Therefore, I find that the applicant has proven, on a balance of probabilities, that the treatment plan is reasonable and necessary.

The treatment plan for chiropractic services, submitted December 3, 2021, is not reasonable and necessary

104I find that the treatment plan for chiropractic services submitted December 3, 2021 is not reasonable and necessary.

105The treatment plan in question was completed by Dr. Patel, and sought funding of $4,326.14 for chiropractic treatment. The goals of the plan were listed as pain reduction, increase in strength and range of motion, assist the applicant with self-management of pain and psychological symptoms, implement exercises, return to activities of normal living and pain management education.

106Neither party made submissions with respect to the treatment plan. However, a virtual re-examination report conducted by Dr. Patel, dated December 24, 2021, was attached to the treatment plan. In the report, Dr. Patel recommended an in-home supervised active rehabilitation program.

107I find that the treatment plan alone, even with the additional comments from Dr. Patel, does not persuade me that the goals of the proposed treatments were reasonable in the applicant's situation at the time the treatment plan was submitted, or that those goals were likely to be met to a reasonable degree. In the case of ongoing, repeated treatment plans, the onus is on the applicant to show that the treatment goals are being met to a reasonable degree. I find that the applicant has not met this onus.

108Therefore, I find that the applicant has not proven, on a balance of probabilities, that the treatment plan is reasonable and necessary.

The treatment plan for psychological services, submitted January 17, 2022, is reasonable and necessary

109I find that the treatment plan for psychological services, submitted January 17, 2022, is reasonable and necessary.

110The treatment plan in question was completed by Dr. Mrahar and sought funding of $3,192.27 for psychological treatment. The goals of the plan were to return to activities of normal living.

111Neither party made submissions with respect to the treatment plan. However, Dr. Mrahar included a progress report, dated January 17, 2022, with the plan. The progress report indicated that after 12 weeks of treatment, the applicant had made some additional miniscule progress to understanding her thinking patterns and recommended an additional 12 weeks of treatment.

112As indicated above, in his report of April 24, 2023 and in his testimony, Dr. Gnam recommended long-term psychological counselling for the applicant and opined that it was reasonable to expect modest incremental improvements in her mental health as a result. While Dr. Gnam's report was based on an assessment of the applicant on September 6, 2022, several months after this treatment plan was submitted, I find that the report and testimony of Dr. Gnam supports Dr. Mrahar's recommendations for additional counselling because Dr. Gnam's recommendation specifically addressed the applicant's need for ongoing therapy over a period of several years.

The treatment plan for rehabilitation support worker services is not reasonable and necessary

113I find that the treatment plan for rehabilitation support worker services, submitted on February 16, 2022, is not reasonable and necessary.

114The treatment plan in question was completed by Svetlana Gabidulina and sought funding of $25,619.01 for rehabilitation support worker services for 12 weeks. The goals of the plan were listed as pain reduction, increase functional independence in home and community, return to activities of normal living and increase independence and self-management.

115Neither party made submissions respecting the treatment plan. I find that the treatment plan alone, without submissions or being directed to evidence in support of rehabilitation support services, does not persuade me that the goals of the proposed services were reasonable in the applicant's situation at the time the treatment plan was submitted, or that those goals were likely to be met to a reasonable degree.

116Therefore, I find that the applicant has not proven, on a balance of probabilities, that the treatment plan was reasonable and necessary.

The treatment plan for a nutritional assessment is not reasonable and necessary

117I find that the treatment plan for the nutritional assessment, submitted August 24, 2021, is not reasonable and necessary.

118The treatment plan in question was completed by Dr. Gabidulina and sought funding of $850.00 for a nutritional assessment. The goals of the plan are to identify nutrition-related problems, and establish any nutritional diagnoses, if applicable. The additional comments attached to the plan indicate that diet and nutrition has a role in mental health.

119Neither party made submissions respecting the treatment plan. I find that the treatment plan alone, without submissions or being directed to evidence in support of a nutritional assessment, does not persuade me that there were reasonable grounds to believe that the applicant had a nutrition-related condition at the time the treatment plan was submitted.

120Therefore, I find that the applicant has not proven, on a balance of probabilities, that the treatment plan is reasonable and necessary.

The treatment plan for the chronic pain assessment is reasonable and necessary

121I find that the treatment plan for the chronic pain assessment, submitted January 7, 2022, is reasonable and necessary.

122The treatment plan in question was completed by Dr. Michael Gofeld, physician, and sought funding of $2,200.00 for a chronic pain assessment. The goals of the plan were pain reduction, restore functional tolerance and endurance and a return to activities of normal living.

123The parties did not make submissions respecting the treatment plan. However, the additional comments attached to the plan indicate that the applicant was referred to Dr. Gofeld by her family physician Dr. Shaffiq Ramji and refers to a note in Dr. Ramji's CNRs dated July 8, 2021, which indicates that the applicant suffers from chronic pain following the accident.

124Dr. Ramji's CNRs are before me and I find that Dr. Ramji's notes of May, June and July, 2021 refer to the applicant's reports of chronic pain due to the accident and show Dr. Ramji's referral of the applicant to a pain clinic on July 8, 2021. I find that this constitutes reasonable grounds for belief that the applicant suffered from a chronic pain condition at the time the treatment plan was submitted, warranting further investigation.

125Therefore, I find that the applicant has proven, on a balance of probabilities, that the treatment plan is reasonable and necessary.

Interest

126Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I indicated above, the applicant is entitled to payment of the reasonable and necessary treatment plans they incur up to the non-MIG non-catastrophic limit of $65,000.00. Interest applies on any treatment plans to which the applicant is entitled.

Award

127The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning "behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate." The onus is on the applicant to prove, on a balance of probabilities, that the respondent's conduct meets this criteria.

128The applicant submits that the respondent: improperly denied the applicant's claim for a CAT determination; improperly permitted their assessment vendor, HVE, to obtain a CAT determination pre-assessment screen, which was not shared with the applicant; decided to seek an unnecessary neurocognitive opinion; retained biased medical and health professionals to conduct the CAT assessments; failed to critically analyse the CAT assessment reports. The applicant submits that any treatment plans that were denied on the basis of lack of funding in the non-MIG non-CAT limit were therefore unreasonably delayed as a result of the respondent's conduct. The applicant relies on her letter to the respondent dated April 19, 2024, setting out the particulars of her claim for an award under s. 10 of Reg. 664.

129The respondent denied that it was liable for payment of an award, but did not make any submissions.

130The applicant's submissions centre on the respondent's handling of the applicant's CAT application, specifically that it improperly denied the application. I have found that the applicant is not CAT, therefore the applicant has not proven that the respondent improperly limited the applicant to the non-MIG non-CAT limit of $65,000.00 for medical rehabilitation benefits.

131I find that the particulars of the applicant's award claim, as set out in the letter of April 19, 2024, do not establish any unreasonable conduct on the part of the respondent. While certain of the respondent's actions, such as requiring the applicant to attend a neurocognitive assessment, can be described as unnecessary in retrospect, I find that this was not an unreasonable requirement based on the evidence in front of the respondent at the time.

132I further find that the particulars of the applicant's award claim do not direct me to any conduct related to the respondent's denial of a particular treatment plan, rather than the CAT denial.

133Therefore, I find that the applicant has not proven, on a balance of probabilities, that the respondent is responsible for the payment of an award under s. 10 of Reg. 664.

ORDER

134I find that:

i. The applicant is not CAT.

ii. The applicant is entitled to such treatment plans as I have found to be reasonable and necessary up to the non-MIG non-catastrophic limit of $65,000.00, should any available funds remain.