Citation: Ranjan v. Aviva General Insurance Company, 2026 ONLAT 24-014397/AABS

Licence Appeal Tribunal File Number: 24-014397/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:

Asvini Ranjan

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Harry Adamidis

APPEARANCES:

For the Applicant:

Kaitlyn MacDonell, Counsel Daniel Rabinovitch, Counsel

For the Respondent:

Meredith Harper, Counsel Christopher Lupis, Counsel

HEARD: by Videoconference:

September 22-29, 2025

OVERVIEW

1Asvini Ranjan, the applicant, was involved in an automobile accident on December 31, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2Prior to the hearing, the respondent filed a motion to exclude two witnesses from the applicant’s witness list. This motion was withdrawn at the hearing.

3The applicant also filed a motion to amend her witness list by striking one witness and adding another witness Parisa Noori, the applicant’s treating occupational therapist. The motion materials filed by the applicant state that Christine Moppett, social worker, was not available to testify because of a medical condition that became known to the applicant shortly before the hearing and that this was the reason Ms. Noori was being brought in at this late stage. The respondent did not oppose this change.

4I allowed this motion because Ms. Noori’s testimony is relevant as she can speak to the applicant’s ability to function and also because the respondent raised no concerns regarding prejudice.

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 a non-earner benefit of $185.00 per week from June 22, 2023 to December 31, 2023?

iii. Is the applicant entitled to attendant care benefits in the amount of $3,981.63 per month from April 19, 2022 to date and ongoing?

iv. Is the applicant entitled to $9,305.00 for Hearing aids, proposed by Dr. Aakanksha Sharma, in a treatment plan/OCF-18 (“plan”) submitted August 24, 2024?

v. Is the applicant entitled to $4,330.00 for a prescription eyewear services, proposed by Dr. Shirley Blank, in a plan submitted August 24, 2022?

vi. Is the applicant entitled to $2,088.10 ($6,301.10 less $4,213.00 approved) for a social work counseling services, proposed by Innovative Occupational Therapy Services, in a plan submitted December 16, 2022?

vii. Is the applicant entitled to $1,743.75 ($6,033.60 less $4,289.85 approved) for occupational therapy services, proposed by Innovative Occupational Therapy Services, in a plan submitted March 6, 2023?

viii. Is the applicant entitled to $1,955.51 for vestibular physiotherapy services, proposed by iScope Concussion and Pain Clinics, in a plan submitted January 24, 2023?

ix. Is the applicant entitled to $2,491.62 (7,280.12 less $4,788.50 approved) for occupational therapy services, proposed by Innovative Occupational Therapy Services, in a plan submitted June 13, 2023?

x. Is the applicant entitled to $309.89 ($4,187.78 less $3,877.89 approved) for product, proposed by Apollo Cannabis, in a plan submitted September 11, 2023?

xi. Is the applicant entitled to $390.21 ($4,479.00 less $4,089.78 approved) for physiotherapy services, proposed by Amanda Raguseo, in a plan submitted September 11, 2023?

xii. Is the applicant entitled to $1,440.00 ($4,840.00 less $3,400.00 approved) for social work counselling services, proposed by Anat Barak, in a plan submitted October 3, 2023?

xiii. Is the applicant entitled to $297.00 ($7,280.12 less $6,983.12 approved) for speech language pathology services, proposed by Innovative Occupational Therapy Services, in a plan submitted January 9, 2024?

xiv. Is the applicant entitled to $2,455.20 ($9,861.72 less $7,406.52 approved) for speech language therapy services, proposed by Therapy Spot, in a plan submitted October 7, 2023?

xv. Is the applicant entitled to $1,100.00 ($4,840.00 less $3,740.00 approved) for social work counseling services, proposed by Functionability Rehabilitation Services, in a plan submitted January 29, 2024?

xvi. Is the applicant entitled to $649.99 ($1,960.44 less $1,310.45 approved) for assistive devices, proposed by Innovative Occupational Services, in a plan submitted February 8, 2024?

xvii. Is the applicant entitled to $798.05 ($1,596.55 less $798.50 approved) for physiotherapy treatment services, proposed by Propel Physiotherapy, in a plan submitted April 9, 2024?

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

6The applicant withdrew issue 6 as listed in the case conference order dated March 19, 2025.

RESULT

7The applicant is catastrophically impaired.

8She is not entitled to a non-earner benefit.

9She is not entitled to attendant care.

10She is not entitled to the treatment plans in dispute.

11She is not entitled to interest.

ANALYSIS

Catastrophic impairment – Criterion 8

12I find that the applicant is catastrophically impaired (CAT).

13A catastrophic impairment under Criterion 8 results when an insured person sustains three or more class 4 impairments (marked impairments) or one or more class 5 impairments (extreme impairments) from an accident pursuant to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (the “Guides”) due to a mental or behavioural disorder. The four areas of function in Criterion 8 are the activities of daily living (“ADL”), social functioning, concentration, persistence and pace (“CPP”), and adaptation.

14The Guides set out the five levels of impairment, ranging from a Class 1 No Impairment to a Class 5 Extreme Impairment, as noted in the chart below:

Area or Aspect of Functioning	Class 1: NO Impairment	Class 2: MILD Impairment	Class 3: MODERATE Impairment	Class 4: MARKED Impairment	Class 5: EXTREME Impairment
Activities of Daily Living	No impairment is noted	Impairment levels are compatible with most useful functioning	Impairment levels are compatible with some, but not all useful functioning	Impairment levels significantly impede useful functioning	Impairment levels preclude useful functioning
Social Functioning
Concentration, Persistence and Pace
Adaption

15The applicant submits she is catastrophically impaired under Criterion 8 because she sustained psychological disorders in the accident which have resulted in Class 4 Marked impairments in all four areas of function.

16The respondent submits that the applicant has three moderate impairments in ADL, social functioning, and CPP. It argues that the applicant is not catastrophically impaired.

Causation

17I find that the applicant sustained mental and behavioural injuries caused by the accident.

18Dr. Waisman, neuropsychiatrist, prepared an Independent Medical Assessment for the applicant dated October 7, 2024. He opines that the applicant has a pre-existing history of posttraumatic stress disorder (PTSD) in relation abuse she experienced as a child and that her pre-accident psychological issues made her more vulnerable to a severe psychological reaction to the accident and its sequelae. He diagnoses her with Persistent depressive disorder with persistent major depressive episode, moderate, PTSD, and Somatic Symptom Disorder with predominant pain, moderate and persistent. The report does not explicitly link these conditions to the accident except for PTSD, which according to Dr. Waisman, was exacerbated by the accident.

19Dr. Gavett-Liu, psychiatrist, completed a s.44 Mental and Behavioural – Criterion 8 report which is part of a multidisciplinary Catastrophic Impairment report dated February 28, 2025. She diagnoses the applicant with a Somatic Symptom Disorder and an Adjustment Disorder with anxiety. She testified that these disorders are partially due to the accident, but are also associated with the applicant’s pre-existing PTSD.

20Dr. Gavett-Liu’s opinion is consistent with Dr. Waisman’s view that the applicant’s pre-existing psychological symptoms were exacerbated by the accident. They differ on the extent of the exacerbation. Dr. Waisman diagnoses the applicant with a Persistent depressive disorder. Dr. Gavett-Liu views the applicant’s post-accident symptoms as being less severe and diagnoses an adjustment disorder. In either case, the diagnosis show that the applicant sustained an ongoing psychological injury caused by the accident.

Activities of daily living (ADL)

21I find that the applicant has a Class 4 Marked impairment in the ADL.

22This area of functioning evaluates a person’s ability to engage in activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. The quality of these activities is judged by their independence, appropriateness, effectiveness and sustainability. It is necessary to define the extent to which the individual is capable or initiating and participating in these activities independent of supervision or direction. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

23The applicant submits that Dr. Waisman’s Class 4, Marked impairment rating should be accepted because he had the benefit of Elyse Freedman’s occupational therapy report. In her view, this report provides more accurate information than what was given to the respondent’s CAT assessor, and this makes Dr. Waisman’s ratings more reliable.

24The respondent submits that Dr. Gavett-Liu’s rating of a Class 3 Moderate impairment for the ADL should be accepted.

25The applicant had pre-existing psychological symptoms and was diagnosed with PTSD and anxiety arising from family trauma. She also had a difficult physical medicine history involving thyroid cancer, hypothyroidism, endometriosis, migraines, and asthma. Despite these difficulties, she testified that she was able to function well. She had previously worked at a bank and part-time at Elections Canada. In 2019 she gained admission to the highly competitive Midwifery program at Toronto Metropolitan University (TMU) and her transcripts show that she attained a 3.5 average which equates to a B+ letter grade. The applicant also testified that she was independent with selfcare and grooming, cooking and household chores, drove an automobile, and also volunteered at a temple in her faith community.

26The s.25 Independent Medical Assessment by Elyse Freedman, occupational therapist, is based on an assessment that took place on June 7, 2024. The applicant reported various post-accident limitations to Ms. Freedman, including:

i. She is independent with personal care and grooming, though some tasks, like brushing her teeth at night, are done less frequently;

ii. No longer cooks meals. She relies on meal delivery such as Uber Eats;

iii. Has difficulty managing medications, such as taking pills on the wrong day;

iv. No longer drives;

v. Relies on her friend or her mother to clean her home;

vi. Has difficulties planning, focusing, and following a grocery list;

vii. Difficulties remembering to pay bills. Requires her mother’s assistance to manage finances;

viii. Sleep disrupted by nightmares.

27Similar limitations were reported by the applicant to Lynn Rutledge, occupational therapist, in s. 44 assessments that took place on October 1 and 2, 2024.

28The s.44 Criterion 8 assessment by Dr. Emily Gavett-Liu, psychiatrist, rates the applicant as having a Moderate, Class 3 impairment in the ADL based on the emotional impact of stress and physical symptom escalation caused by mental and behavioural disorder. No further reasons for this rating are provided in the report.

29In testimony, Dr. Gavett-Liu explained that the Class 3 moderate rating was based on several factors, such as the applicant’s ability to perform her daily hygiene routine. She further opined that the applicant has cognitive issues that cause some difficulties in using a smart phone, computer, and making bill payments. Dr. Gavett-Liu attributed the applicant’s inability to complete physical chores such as house cleaning and laundry to physical pain which is not rateable under Criterion 8. She seemed to suggest that the applicant voluntarily chose to stop driving and that this was not related to a mental and behavioural impairment. She also highlighted the applicant’s pre-existing issues, such as night sweats and poor appetite. Dr. Gavett-Liu explained that these issues continued after the accident and that this was an important reason for the Class 3, moderate impairment rating.

30I agree with Dr. Gavett-Liu that the applicant did have pre-existing mental and behavioural issues that impacted some aspects of her functioning before the accident. However, the applicant was highly functional before the accident. This includes the ability to independently initiate and complete activities such as cooking, cleaning, attending school and achieving high grades, driving, and volunteering in her faith community. There is no dispute that post accident she is no longer doing any of these things. This is a significant change.

31Dr. Gavett-Liu characterises the applicant’s cognitive difficulties as causing “some difficulties” with the use of cell phones, computers, and bill payments. I disagree. Entering an appointment into cell phone calendar is a simple task. The inability to complete simple tasks due post-accident cognitive difficulties is an indication of poor functioning. Further examples of poor cognitive functioning in the domain of the ADL are shown in the testing by Ms. Freedman. These include the applicant making errors when attempting basic calculations with coins and her inability to independently manage her medications. In my view, her post-accident cognitive challenges with simple tasks indicate poor overall functioning in the area of the ADL.

32The applicant attributes her inability to perform household chores to pain. At the hearing, Dr. Gavett-Liu accepts this explanation. In doing so, she is indicating that this functional impairment is not rateable as it is based on a physical, as opposed to a mental and behavioural limitation. However, the applicant’s statement needs to be considered alongside other evidence to have a more complete and contextual understanding of this functional limitation.

33The s.44 Physical Medicine and Rehabilitation Specialist Assessment by Dr. Khan, physiatrist, diagnosed the applicant with sprain and strain injuries to her cervical, thoracic, and lumbar spine. Range of motion was limited to 40 degrees extension, and flexion to 30 degrees. Range of motion in the lumbar spine was normal. There was tenderness on palpitation throughout the spine. No other pain limitations were identified during the physical examination. As such, the applicant has no ongoing physical impairments other than some neck and back pain.

34The applicant’s pain did not prevent her from completing some housekeeping. Ms. Rutledge asked the applicant to complete household chores. The applicant swept the floor with a broom and washed dishes without difficulty. This shows that she is physically able to perform some tasks despite her pain symptoms. Despite this, no housekeeping tasks are being completed by the applicant.

35Both Dr. Waisman and Dr. Gavett-Liu have diagnosed the applicant with a somatic symptom disorder. As such, both experts acknowledge there is a mental health aspect the applicant’s pain experience. According to Dr. Waisman:

She presents with somatic symptoms that include pain and fatigue that are distressing and result in significant disruption of daily life. She presents with persistently high level of anxiety about her health and somatic symptoms. I would classify her somatic symptom disorder as moderate and persistent.

36Dr. Gavett-Liu echoes these statements in her report. She documents the applicant experiencing a high level of anxiety associated with pain.

37On a day-to-day basis, the applicant is not capable of independently engaging in housekeeping. This cannot be attributed to a physical inability due to pain as the applicant can complete some household tasks when cued and given direction. Given these circumstances, it is more likely that mental health symptoms, such as anxiety associated with pain, prevent her from initiating any housekeeping.

38The need for cueing and other support to complete the ADL was also noted in the testimony of Ms. Noori, the applicant’s treating occupational therapist. On her first visit, she observed that the applicant’s entire apartment was cluttered. The state of the applicant’s apartment improved after a PSW helped the applicant to become more organized. The PSW assisted the applicant with decluttering the apartment. She further testified that the applicant’s apartment was in an acceptable state as long as the applicant had PSW support. This is significant because the Guides require assessments to consider the independence, appropriateness, and effectiveness of a person’s ability to function. The applicant can have a well organized apartment, but only with support. Without PSW support and cuing, the applicant’s apartment is in a state of disarray. This lack of independence in initiating tasks is an example of poor functioning.

39I also note of the applicant’s use of a walker. After the accident, she came to believe that she sometimes needs to use a walker. The sincerity of this belief is shown, in my view, by the fact that she brought the walker on a trip to England. She also asked Ms. Noori to assist her with a Wheel-Trans application. Nevertheless, the physical examination of Dr. Khan does not identify any physical impairments effecting ambulation. In light of this, I find that the applicant’s perceived reliance on a walker and its effect on her ability to ambulate is, more likely than not, caused by a post-accident mental health impairment.

40The respondent refers to the applicant’s ability to foster kittens, maintain a romantic relationship post-accident, and being independent with self care as being indications of good functioning that help justify a Class 3, Moderate impairment rating.

41I agree that the applicant is independent with grooming and self care and that this is an indication of good functioning. I am less clear on whether the applicant has maintained a romantic relationship after the accident. She testified that she is not in a relationship. The documents from the University Health Network that are cited by respondent do not explicitly state that she is currently in a romantic relationship. However, if I am incorrect and she is in a relationship, then this does not change my assessment of the applicant’s level impairment for two reasons. The nature and character of the alleged relationship, if one exists, is unknown. Consequently, it is not possible to meaningfully understand whether this is an indication of good functioning. Secondly, the Guides require me to consider the overall degree of impairment. The lengthy list of ADL that she cannot initiate shows a high degree of impairment that is not offset by her ability to groom herself or be in some type of romantic relationship.

42It is true that the applicant continues to foster kittens. However, she can no longer fosters kittens that need bottle feeding. This decreased level of responsibility is more consistent with poor functioning.

43The applicant has an inability to independently complete simple tasks, such as managing her medication or pay bills. She no longer has the ability to cook meals, clean her home, independently shop for groceries, drive, continuously ambulate without a walking aid, or volunteer in her faith community. She has some pain, but her pain complaints are not significant enough to account for the inability to complete the before mentioned tasks. Consequently, I find that her accident-related mental disorders significantly impeded her useful functioning and that she has a Marked, Class 4 impairment in the ADL.

Social functioning

44I find that the applicant has a Class 4, Marked impairment in social functioning.

45Social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with others. This includes the ability to get along with family members, friends, neighbours, grocery clerks, landlords, and other members of the public.

46The applicant submits that her social functioning impairments should be rated as Class 4, Marked and provides several examples of poor functioning.

47The respondent also provides various examples of the applicant’s social functioning, and asks that weight be given to the Class 3, Moderate rating of Dr. Gavett-Liu.

48The applicant had some challenges interacting appropriately before the accident. The main example is her volatile relationship with her family. About six weeks before the accident, she was seen by a crisis worker to the Mackenzie Health hospital in Vaughan. She had recently moved in with her mother and brother. They got into an argument and the applicant threw a plate across a room and threatened her mother and brother with a spoon. Police were called and the applicant was taken to hospital, but was not involuntarily admitted.

49Post-accident, the applicant was involuntarily admitted to Toronto Western hospital on February 28, 2024 under a Form 1. The reason listed for “forming” the applicant, as provided by the Department of Emergency Medicine, is “Bizarre Behaviour.”

50The clinical notes show that she was brought to the hospital by her mother after presenting with bizarre behaviour during the previous three weeks. In particular, the applicant believed that she was being poisoned by her 93 year old grandmother with mercury from a thermometer. The applicant was co-operative, but her thought content is described as paranoid and delusional.

51The applicant clashed with her family members before the accident. Post-accident, she had a break from reality and experienced paranoid delusions where no meaningful interaction with her family members was possible. This severe example does not represent her overall ability in social functioning. It does show, however, that the applicant’s mental health symptoms became worse after the accident and that this can, at times, seriously compromise her ability to interact appropriately.

52Some of the applicant’s assessors reported inappropriate behaviour. The applicant presented herself for an assessment in pyjamas which Ms. Rutledge viewed as being inappropriate. She also made the following unusual comments to Dr. Curt West, neuropsychologist, at an attempted assessment that took place on October 8, 2024:

Ms. Ranjan stated to me: “Dr. West - don’t play this neuropsych game – don’t do it – I’m not going to be their guinea pig – don’t go outside or play this game Aviva wants you to play, this is bananas; they have surveillance on all of us”. She stated “I have great resources – a great psychiatrist, a great neuropsychiatrist and other great doctors to help me and protect me”.

53At her hearing, the applicant demonstrated the ability to provide testimony in a polite and civil manner. However, Ms. Noori’s testimony gave a different perspective of the applicant’s functioning. She described the applicant as being very anxious and suspicious of people. As a result, she had to spend time building a rapport before she could start providing occupational therapy to the applicant. After gaining the applicant’s trust, Ms. Noori observed that the applicant’s life was like a “soap opera.” There was always a new problem or crisis to deal with at every session.

54Ms. Noori testified that the applicant was unable to handle matters with neighbours and service providers. She gave the example of the applicant often crying in response to comments made to her by PSWs. Another example was the applicant being sexually harassed by a neighbour. The applicant’s manner of dealing with this situation was to engage in a lengthy, difficult to follow text exchange with her harasser. As a result, the sessions with the applicant became lengthy and never ended on time because the applicant had to be re-directed from her emotional turmoil and focused on her goals. In my view, the examples provided by Ms. Noori show the applicant engages in inappropriate interactions on a day to day basis.

55Post accident, the applicant has difficulty communicating effectively. The principal concern is her inability to focus. Instead, she goes off on tangents which do not relate to the matter at hand. This problem is mentioned in various reports. The most extreme example was the attempted assessment by Dr. West. He testified that he could not get to ninety percent of what needs to be covered in the interview because the applicant spent the allotted time answering questions in tangential and disjointed manner. The applicant’s inability to focus was also evident during her testimony. She would often begin speaking on something unrelated to the question. This required her to be re-directed to the question being asked.

56The various examples of the applicant’s strained ability to communicate both appropriately and effectively show that her impairments significantly impede useful functioning. As such, I find that she has a marked impairment in social functioning.

Concentration, persistence, and pace (CPP)

57I find that the applicant has a marked impairment in CPP.

58CPP refers to the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings. In activities of daily living, concentration may be reflected in the ability to complete everyday household tasks.

59The applicant submits that she has a Class 4, Marked impairment in CPP.

60The respondent relies on Dr. Gavett-Liu’s Class 3, Moderate rating.

61The applicant was previously employed at certain times, but has not worked since the accident.

62She completed the academic courses in TMU’s Midwifery program and was to begin the clinical component of the program when the accident occurred. Since then, she has been unable to resume her studies despite hiring legal counsel to assist with her returning to the program.

63Since the accident, the applicant has a slightly diminished ability to groom herself and engage in self care. However, as noted above, her mental health disorders make her unable to independently initiate or complete many ADL such as cleaning, cooking, and managing bills and medication.

64Ms. Noori described the applicant’s inability to focus and complete tasks. For example, she gave the applicant an application for Wheel Trans. The applicant told Ms. Noori that her friend would complete the form. Instead, the applicant lost the form, and a new one had to be provided. Ms. Noori also testified that the applicant was able to keep track of her appointments and keep her apartment decluttered, but only with PSW support and cuing. These examples show that the applicant lacks the ability to follow through and complete tasks on her own.

65There are also clear indications of poor cognitive functioning in the reports of both parties which show an inability to focus. As noted above, these include the inability to complete simple tasks such as entering an appointment into a cell phone, making basic calculations with coins, and managing medications. Her cognitive difficulties are further demonstrated by the fact that she needs her mother’s assistance to manage her finances, the inability to drive, and the tangential manner in which she communicates. These post-accident examples of poor functioning show that her ability to concentrate is seriously compromised.

66Since the accident, the applicant’s ability to sustain attention long enough to complete tasks has significantly diminished. She has not worked or been able to return to school. Her ability to initiate and complete the ADL and organizational tasks is limited by her need for support. There are also numerous examples of things she can no longer do since the accident because of an inability to concentrate. In my view, the combination of these restrictions establishes, on a balance of probabilities, that her useful functioning is significantly impeded, and as such, I find that she has a Class 4, Marked impairment in CPP.

Adaptation

67I find that the applicant has a Class 4, Marked impairment in adaptation.

68Adaptation is the functional ability to adapt to stressful situations. When faced with such circumstances, an individual may withdraw or experience an exacerbation of signs and symptoms of a mental disorder.

69The applicant argues that she has a Class 4, Marked impairment in adaptation. The respondent did not make submissions on adaptation. Both Dr. Waisman and Dr. Dr. Gavett-Liu found that the applicant has challenges in managing her symptoms and adapting to stressful circumstances and rated her as having a marked impairment in adaptation.

70One example of failing to manage stressful circumstances came up in the testimony of Ms. Noori, who described how the applicant dealt with a harassing neighbour. Instead of taking a more constructive approach, such as distancing herself from the harasser, the applicant escalated the situation by engaging in a lengthy exchange of difficult to follow texts. Another example is the post-accident exacerbation of her mental health symptoms following interactions with her family. This escalated her symptoms to the point of experiencing paranoid delusions and the involuntary admission to hospital for a psychiatric assessment.

71The findings and impairment ratings of both parties’ assessors and the above examples show that the applicant’s symptoms seriously impair her ability to manage stressful situations. Consequently, I find that she has a Class 4, Marked impairment in adaptation.

72Having found that the applicant has four Class 4, Marked impairments, I further find that she is catastrophically impaired under Criterion 8.

Non-earner benefit (NEB)

73I find that the applicant is not entitled to an NEB.

74Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

75The applicant submits that she has been unable to return to her ordinary activities of excelling academically, being socially engaged, volunteering, and managing her pre-existing health conditions. In her view, this continuous and substantial loss of function meets the Heath test and establishes that she is entitled to an NEB.

76The respondent submits that the applicant’s activities and functioning are similar to her pre-accident life, other than not going to school. In its view, she is not entitled to an NEB.

77I agree with the applicant that there have been substantial changes to her life since the accident. I also agree that there are numerous activities that she ordinarily did before the accident, such as being a student and volunteering at the temple, that she can no longer do. However, it is also true that the applicant is independent with grooming and self care. She travelled to England for a wedding. She has been able to attend temples in her faith community, although less frequently. She can also foster older kittens that do not require bottle feeding. In my view, she does not have “a complete inability to carry on a normal life” because of the various activities that she can engage in post- accident. For this reason, I find that she is not entitled to an NEB.

Attendant Care Benefit (ACB)

78I find that the applicant is not entitled to an ACB.

79Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).

80The applicant submits that she is entitled to the attendant care benefits that were previously approved by the respondent and that the deemed incurred provision in s. 3(8) of the Schedule applies. She points to the testimony of Lynn Rutledge, occupational therapist, who wrote a report that the respondent relied on to terminate the ACB. The applicant notes that Ms. Rutledge testified that someone who needs cueing for their medications also needs attendant care. According to the applicant, this testimony is inconsistent with Ms. Rutledge’s recommendation for 0 minutes of attendant care. According to the applicant, this shows that the respondent did not critically assess the medical opinions before it and that this justifies a finding that attendant care should be deemed incurred.

81The respondent submits that its denial relied was based on a Multidisciplinary report dated May 4, 2023 that included various reports, including the report of Ms. Rutledge. It argues that there is overwhelming evidence which shows that the applicant does not require attendant care.

82The Form 1 is the starting point for any ACB assessment. The applicant argues that she is entitled to “attendant care benefits previously approved and paid by the Respondent” but she does not identify where this Form 1 can be found. It may be that she is referring to Exhibit 29 which is a Form 1 dated April 19, 2022, but this cannot be verified as the respondent’s letter approving this Form 1 is not in evidence. As well, it is not possible to determine if the entire Form 1 was accepted under s. 42(6) or if parts of it were approved and paid under s. 42(6) or s. 42(7). As such, the analysis suggested by the applicant cannot be made because there is no clear reference to a specific Form 1 and the benefits that were previously approved.

83Even if the details of the previously approved attendant care could be verified, which cannot be done, the applicant must still show that the respondent unreasonably withheld or delayed payment of the ACB in order for the deemed incurred provision of s. 3(8) to apply. The only evidence cited by the applicant to prove her point is the testimony given by Ms. Rutledge at the hearing. This evidence was not available when the ACB was denied in 2023. Given these circumstances, I cannot find that the respondent unreasonably ignored or failed to consider the evidence cited by the applicant because this evidence did not exist when the denial was made.

84I find that the applicant is not entitled to the treatment plans in dispute.

85To 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.

86The applicant submits that she has consistently demonstrated a need for the treatment plans, has incurred such treatment and assistive devices, and that they are reasonable and necessary.

87The respondent submits that there is insufficient evidence to establish that the treatment plans are reasonable and necessary.

88The CAT finding in this case allows the applicant access to funding for treatment that exceeds the previously exhausted non-CAT limits. However, she still has the burden of establishing that these plans are reasonable and necessary.

89Fourteen treatment plans are in dispute. The applicant did not address any of the individual plans. Instead, she makes a one general statement, that the need for the plans has been demonstrated, which she applies to all the plans.

90It is up to the applicant to make pinpoint references in the evidence and explain why this evidence meets the various factors needed to establish her entitlement for each plan. This has not been done. Additionally, the fact that treatment has been incurred does not, by itself, satisfy the applicant’s burden of proving that the relevant treatment plan is reasonable and necessary. Consequently, I find that the applicant has not established, on a balance of probabilities, that the treatment plans are reasonable and necessary.

Interest

91Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is not entitled to interest as no benefits are overdue.

ORDER

92The applicant is catastrophically impaired.

93She is not entitled to an NEB, the ACB, the treatment plans, nor interest.