Citation: Saleb v. Allstate Insurance Company of Canada, 2026 ONLAT 25-007027/AABS

Licence Appeal Tribunal File Number: 25-007027/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:

Inas Saleb

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Robert Maich

APPEARANCES:

For the Applicant: Mireille Dahab, Counsel

For the Respondent: Michael Chadwick, Counsel

HEARD by Videoconference: March 2, 3, 4, 5 and 13, 2026

OVERVIEW

1Inas Saleb, the applicant, was involved in an automobile accident on January 4, 2023, 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, Allstate Insurance Company of Canada , and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was driving a 2020 Toyota Corolla and stopped at a red light when another vehicle hit her from behind. Her 24-year-old daughter, Debra, was sitting beside her in the front passenger seat at the time of the accident. Her daughter helped her to exchange information with the other driver; and after the police arrived, they returned home as her daughter was upset. The following morning the applicant did not feel well and arranged for transportation to Joseph Brant Hospital Emergency Department where she underwent diagnostic imaging of her neck and back; no fractures were found and she was referred to a concussion clinic. She subsequently followed up with her family doctor.

ISSUES

3The issues in dispute are:

i. Has the applicant sustained a catastrophic (“CAT”) impairment as defined by the Schedule?

ii. Is the applicant entitled to attendant care benefits in the amount of $6,424.02 per month from May 1, 2023, to ongoing?

iii. Is the applicant entitled to $27.39 for medication, submitted on a claim form (OCF-6) dated July 11, 2023?

iv. Is the applicant entitled to $4,083.04 ($6,424.02 less $2,340.98 approved) for occupational therapy services, proposed by NCCO Rehabilitation Services in a treatment plan/OCF-18 (“plan”) plan dated July 17, 2023?

v. Is the applicant entitled to $1,995.25 for physiotherapy services, proposed by OMNI Health Care Solutions in a plan dated November 4, 2023?

vi. Is the applicant entitled to $942.96 ($6,229.61 less $5,286.65 approved) for aquatherapy, proposed by NCCO Rehabilitation Services in a plan dated January 5, 2024?

vii. Is the applicant entitled to $1,427.49 ($7,209.59 less $5,782.10 approved) for occupational therapy services, proposed by NCCO Rehabilitation Services in a plan dated January 29, 2024?

viii. Is the applicant entitled to $7,244.90 for aquatherapy, proposed by Oakville Physio Aquatic Centre in a plan dated March 11, 2024?

ix. Is the applicant entitled to $621.50 ($3,081.50 less $2,460.00 approved) for a physiatry assessment, proposed by HAL Disability Management in a plan dated April 4, 2024?

x. Is the applicant entitled to $3,344.96 for physiotherapy services, proposed by Healthmax Physiotherapy Thornhill in a plan dated May 24, 2024?

xi. Is the applicant entitled to $8,694.24 for gym membership and pet therapy, proposed by NCCO Rehabilitation Services in a plan dated June 3, 2024?

xii. Is the applicant entitled to $5,502.12 for aquatherapy, proposed by NCCO Rehabilitation Services in a plan dated June 26, 2024?

xiii. Is the applicant entitled to $12,000.00 ($20,660.00 less $8,660.00 approved) for CAT assessments, proposed by Okell Rehabilitation Services Inc in a plan dated August 16, 2024?

xiv. Is the applicant entitled to $226.00 ($2,686.00 less $2,460.00 approved) for disability management, proposed by HAL Disability Management in a plan dated January 30, 2025?

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

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

RESULT

4The applicant sustained a CAT impairment as defined by the Schedule.

5The applicant is not entitled to attendant care benefits in the amount of $6,424.02 per month from May 1, 2023 and ongoing, however the applicant is entitled to $785.25 per month from November 20, 2024 to date and ongoing.

6The applicant is not entitled to $27.39 for medication, submitted on a claim form (OCF-6) dated July 11, 2023.

7The applicant is entitled to $4,083.04 for occupational therapy services, proposed by NCCO Rehabilitation Services in a treatment plan dated July 17, 2023.

8The applicant is entitled to $1,995.25 for physiotherapy services, proposed by OMNI Health Care Solutions in a plan dated November 4, 2023.

9The applicant is not entitled to $942.96 ($6,229.61 less $5,286.65 approved) for aquatherapy, proposed by NCCO Rehabilitation Services in a plan dated January 5, 2024.

10The applicant is not entitled to $1,427.49 ($7,209.59 less $5,782.10 approved) for occupational therapy services, proposed by NCCO Rehabilitation Services in a plan dated January 29, 2024.

11The applicant is entitled to $7,244.90 for aquatherapy, proposed by Oakville Physio Aquatic Centre in a plan dated March 11, 2024.

12The applicant is not entitled to $621.50 ($3,081.50 less $2,460.00 approved) for a physiatry assessment, proposed by HAL Disability Management in a plan dated April 4, 2024.

13The applicant is entitled to $3,344.96 for physiotherapy services, proposed by Healthmax Physiotherapy Thornhill in a plan dated May 24, 2024.

14The applicant is entitled to $8,694.24 for gym membership and pet therapy, proposed by NCCO Rehabilitation Services in a plan dated June 3, 2024.

15The applicant is entitled to $5,502.12 for aquatherapy, proposed by NCCO Rehabilitation Services in a plan dated June 26, 2024.

16The applicant is not entitled to $12,000.00 ($20,660.00 less $8,660.00 approved) for CAT assessments, proposed by Okell Rehabilitation Services Inc in a plan dated August 16, 2024.

17The applicant is not entitled to $226.00 ($2,686.00 less $2,460.00 approved) for disability management, proposed by HAL Disability Management in a plan dated January 30, 2025.

18The respondent is liable to pay an award of $7,336.27 under s.10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.

19The applicant is entitled to interest on any overdue payment of benefits.

ANALYSIS

CAT Determination, Criterion 8

20I find that the applicant has proven on a balance of probabilities that she sustained a catastrophic impairment under Criterion 8 of the Schedule.

21The Schedule identifies the required criteria to meet the legal test for catastrophic impairment under Criterion 8 at s. 3.1(1)8. Specifically, the Schedule defines a Criterion 8 impairment as follows:

“…an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder…”

22For the applicant to be found to have sustained a catastrophic impairment pursuant to Criterion 8 of the Schedule, she must be found to have sustained a marked impairment (class 4) in at least three domains of function, or be found to have sustained an extreme impairment (class 5) in one or more domains of function.

23The American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”) provides for four domains of function, specifically:

1. Activities of daily living;

2. Social functioning;

3. Concentration, persistence and pace;

4. Adaptation.

24Whether an insured suffered a catastrophic impairment under Criterion 8 is a legal test of impairment under s. 3.1(1)(8) of the Schedule and is considered in accordance with the Guides. Chapter 14 of the Guides set out the four spheres of functioning and the classification of impairments as represented in the chart below:

Area or Aspect of Functioning

Class 1: NO Impairment

Class 2: MILD Impairment

Class 3: MODERATE Impairment

Class 4: MARKED Impairment

Class 5: EXTREME Impairment

Activities of Daily Living

No impairment is noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some, but not all useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

Social Functioning

Concentration, Persistence and Pace

Adaptation (In a work-like setting)

25The applicant submits that she sustained a marked (class 4) impairment in the following domains of functioning: Activities of Daily Living, Concentration Persistence and Pace, Social Function, and Adaptation; the applicant chose not to make oral submissions on the Concentration, Persistence and Pace domain of functioning.

26The applicant relies upon the CAT Assessment by Dr. Gerber, psychiatrist, assessed December 2, 2024 and report dated December 30, 2024 for CAT determination under criterion 8 (“Gerber report”). Dr. Gerber found the applicant to have a class 4 or marked impairment in all four domains of function. Dr. Gerber approached the assessment by review of the applicant’s past medical records, an interview with the applicant and collateral interviews with both her sisters, and psychometric testing. In addition, Dr. Gerber relied upon the observations contained in the Occupational Therapy Situational Assessment by Ms. Burnett, OT, assessed on October 29 and 30, 2024 and report dated November 7, 2024 (“Burnett report”).

27Dr. Gerber diagnosed the applicant with persistent, Somatic Symptom Disorder (“SSD”) with Predominant Pain, a Post Traumatic Stress Disorder (“PTSD”), a Major Depressive Disorder (“MDD”), and she has ongoing symptoms of Post Concussion Syndrome (“PCS”).

28The respondent submits that the applicant sustained a moderate (class 3) impairment in the following domains of functioning: Social Functioning, Concentration Persistence and Pace, and Adaptation. The respondent submits that the applicant sustained a mild (class 2) impairment in the domain of Activities of Daily Living.

29The respondent relies upon the CAT Determination by Dr. Jwely, psychiatrist, assessment on March 11, 2025 and report dated June 3, 2025 in respect to criterion 8 (“Jwely report”). Dr. Jwely found the applicant did not have a class 4 or marked impairment in any of the domains of functioning. Dr. Jwely approached the assessment with a review of the applicant’s medical records, an interview with the applicant and psychometric testing. Dr. Jwely also relied upon the observations contained in the Occupational Therapy In-home Report and Occupational Therapy Situational Examination by Ms. Hisey, OT, both assessments on April 24, 2025 and reports dated June 3, 2025 (“Hisey reports”). In addition, Dr. Jwely also relied upon the Occupational Therapy Examination of M. Kaul, OT, assessed on August 2, 2024 and report dated August 19, 2024.

30Dr. Jwely did not diagnose the applicant with any mental disorder under the Guides. I note that at the commencement of his testimony, immediately upon being sworn in as a witness and prior to any questions being asked of him, Dr. Jwely made a demand for payment of $1,800.00 for his afternoon attendance at the hearing and demanded to know which party will be paying him; I note that neither counsel replied; he later disclosed that he received $700.00 for his report.

Activities of Daily Living

31I find the applicant has not sustained a class 4 or marked impairment of function in the domain of Activities of Daily Living.

32For this domain, the Guides specify what needs to be considered.

Activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities…in the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness and sustainability.

It is necessary to define the extent to which the individual is capable 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

33The applicant submitted she sustained a class 4 or marked impairment in the activities of daily living. Dr. Gerber found the following observations salient to his decision to rank the applicant as class 4 marked impairment:

i. Dizziness and unsteady on her feet, requiring her to shower sitting down limiting showers to twice a week; it also causes other ambulatory issues and fear of falling.

ii. Communication is a problem given her irritability and the difficulties that she has with being able to concentrate; collateral sources described that she repeats questions and forgets answers, causing stress negatively affecting her relationships.

iii. PTSD affects travel, causing difficulties.

iv. Difficulty falling asleep and after falling asleep, she often wakes up during the night for extended periods of time.

v. She does not involve herself in virtually any of the social and recreational activities that she was involved in prior to the accident.

vi. She spends most of her time lying down.

vii. She does less than 40% of the housekeeping chores, whereas prior to the accident she completed basically all of the housekeeping chores.

viii. Collateral sources (e.g. her sisters) described just how significantly different she had been in terms of the way she presents herself, in terms of her sense of humour, in terms of her confidence of herself, and in terms of her daily functioning, as compared to the way that she had been prior to the accident.

34I find that while the applicant has identified limitations in function, a substantial percentage of it overlaps with social function. It is notable that her self-care tasks are impacted but, in my view, not significantly impeded.

I find although 40% of household duties may be significantly impeded including cooking by the observations and findings of the assessor psychiatrist and OT, the personal care functions are not evidenced as being significantly impeded as she is mostly independent in all tasks save for toenail clipping and weekly hair styling.

35I note there are other aspects of activities of daily living that were not discussed in Dr. Gerber’s analysis, although he quoted substantial portions of the OT’s observations without comment. It is for the psychiatrist assessor to make the findings and ranking of function through analysis of his or an OT’s observations; quotations of the OT’s observations are helpful but is not an analysis of the facts.

36I find that the applicant has not established that she suffered a class 4 marked impairment or greater in the Activities of Daily Living domain and it is unnecessary to consider the comments of the respondent’s assessor.

Social Function

37I find the applicant sustained a class 5 extreme impairment in the domain of Social Function.

38The factors to consider under this domain are:

An individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others such as family members, friends, neighbours, grocery clerks, lenders, etc. Impaired social functioning may be demonstrated by history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Strengths in social functioning may be documented by an individual’s ability to initiate social contact with others, communicate clearly with others and interact and actively participate in group activities, cooperative behaviour, consideration for others, awareness of others’ sensitivities and social maturity also need to be considered

39The applicant submitted she sustained a class 4 or marked impairment in the domain of social function. Dr. Gerber found the following observations salient to his decision to rank the applicant as class 4 marked impairment:

i. Prior to the accident the applicant was sociable at work, at night after work and on the weekends; she is now largely cut off contact from her friends and she barely socializes with her family.

ii. She does not speak on the phone with her friends as she did prior to the accident and has reduced her calls with her family.

iii. She described how hard it is for her to be in social situations because of the noise, because of her irritability, and because of her inability to focus.

iv. She estimates that she socializes less than 10% of what she did prior to the accident.

v. Her sisters in the collateral interviews described just how dramatically different she is and how limited she continues to be with regard to social functioning.

40I note the additional findings of Dr. Gerber in respect to her social function in his comments on activities of daily living:

i. Communication is a problem given her irritability and the difficulties that she has with being able to concentrate; collateral sources described she repeats questions and forgets answers, causing stress negatively affecting her relationships.

ii. She does not involve herself in virtually any of the social and recreational activities that she was involved in prior to the accident.

iii. She spends most of her time lying down.

iv. Collateral sources from her sisters described just how significantly different she had been in terms of the way she presents herself, in terms of her sense of humour, in terms of her confidence of herself, and in terms of her daily functioning, as compared to the way that she had been prior to the accident.

41I note that Dr. Gerber found the following observations of Ms. Burnett to be particularly relevant:

i. “Following the accident, Ms. Saleb has withdrawn from her friends and family. Prior to the accident, she was very social and enjoyed spending time with family and friends daily. Prior to the accident, She reported 10 close friends that she would see on a regular basis.

She would meet at church with them every week, visit at their home, or go out for coffee, or make dinners for each other. She would see her two siblings, who lived nearby on a regular basis”

ii. “Post-accident, she described a loss of interest in others and feels that she does not have the energy or motivation to engage with friends or family. She is no longer attending church and has lost touch with all of her friends. She no longer sees her siblings on a regular basis … She stated, ‘I have no relationship with anyone. Even my siblings. I don’t see them anymore… Before it was daily. The kids would go to school and we would have breakfast and walk the kids to school together. Now, I have no friends at all.’ The client described increased relationship strain with her children post-accident due to low moods, irritability, and apathy. She reported that they are no longer yelling or screaming at each other as they did just after the accident, however she feels more helpless and that she cannot help her children who she feels are struggling to find jobs or succeed at school. She stated, ‘Before, I was the strong mom who never got tired. Now, they have to help me. They start believing that I am not the hero that can do everything’ “.

iii. “She reported increased irritability and less patience with others post-accident. She stated, ‘Sometimes I am arguing in the elevator, who came in first or second. I have to apologize to people. I just had a fight with a lady and her son two days ago. They were trying to come in with their bikes and I thought they didn’t have a fob. So I put my code in and let them in. She was training her son who was 7 or 8 to enter the code. The lady and their son went first to the elevator with their bikes. They didn’t let me in the elevator because they said I wouldn’t fit. I got upset because I opened the door for them. She was trying to explain, but I couldn’t even hear her. I was so rude. I entered the elevator anyway. Then I felt guilty and I apologized. Things like that, it happens a lot.’ ”

42I find that the applicant’s behaviour in the elevator incident outlined in the preceding paragraph [42] iii demonstrates a significant disintegration in her ability to handle social situations. I find the aforementioned bicycle in the elevator incident is also demonstrative of activity that is beyond impeding social function as it demonstrates a propensity towards conflict over minor social issues and precludes effective social function.

43I also find in her testimony she described how her previous apartment did not have an exhaust fan in the bathroom and it would fog up from the shower. She recounted how on multiple occasions she demanded that the landlord install an exhaust fan in the bathroom. It became such an issue and source of conflict with the landlord, that she felt she had to move. I find that while a bathroom exhaust fan may be a convenience to some, while others may like the effect of the steam similar to those who seek out a steam bath; however, the applicant found its absence to be so offensive that she found it necessary to move her residence over this issue and effectively de-housed herself over a relatively minor convenience issue. I find this behaviour to demonstrate significant disintegration of social function over a minor issue precipitating housing relocation; I find this incident does not demonstrate her injuries impede effective social function, rather it demonstrates her injuries preclude effective social function as her conduct resulted in de-housing with potentially serious consequences to overall health and safety for both herself and her family.

44In respect to her employment, I note from her testimony and sister’s testimony that the applicant achieved a high level university education as an architect in Egypt. I find their testimony also established that upon coming to Canada, she took on work as a seamstress and found pride and joy in her work and used it as a creative outlet; specifically her sister testified the applicant was saddened but not resentful in the loss of her social status and income as an architect, rather she chose to take pride and express her creativity in the work available to her. I find this to be compelling evidence of the applicant’s high social function pre-accident. I find that she was unable to continue her work at “Stitch-It” post-accident, because among other things, she was unable to deal with customers as a necessary component of her job as evidenced in her testimony and the Gerber report and the Hines reports. I find that the applicant’s post-accident injuries did not impede her previous work, rather it precluded her from her previous work due to her severely limited social functioning.

45I find that the testimony of the applicant’s sister, as well as the collateral interviews of both sisters, described a person who was highly capable individual with a high degree of social function. The applicant was described by her siblings as the smartest, best educated and “better than all of us at everything”; she was the person everyone turned to for help and advice. I find the applicant was in effect described as a leader in her extended family. I find that she obtained a high level of education as an architect in Egypt and gave up her professional designation to come to Canada and chose work as a seamstress. I find the evidence of the applicant’s sisters that she took pride and enjoyed her work despite her change in circumstances to be significant evidence of high social function prior to the accident. I find after the accident the applicant is described by her siblings as a shell of her former self. I also find when they attempted to engage her in conversation and asked for her opinion, the most common answer would be: “I don’t know” and she would disengage. I find she was an active caretaker for her ailing mother, but now on the rare occasion she visits her mother, sits quietly beside her on the sofa and leans against her mother and says little; her sister described her as being reduced to “a bump on a log.” I find that in terms of her family social function she is not merely impeded but essentially now precluded from her former roles.

46The respondent submitted the applicant sustained a class 3 or moderate impairment in this domain.

47The respondent relies upon the report of Dr. Jwely who also integrated the observations of Ms. Hisey, OT, and took into account the following salient facts for his conclusion:

i. Based on the OT report, the applicant maintains appropriate social functioning, demonstrated by her ability to interact politely and hospitably with the assessor, build rapport, and maintain eye contact.

ii. She continues to have supportive relationships with her children and siblings, participates in family gatherings, and attends church when able.

iii. Although her social activity level has decreased, largely due to pain and fatigue, she remains capable of effective communication and appropriate social behavior.

iv. There is no evidence of significant social withdrawal, altercations, or inappropriate interactions.

v. Her remaining positive function in social functioning is evident in her ongoing family connections and ability to engage appropriately with others during assessments and community outings, with limitations primarily related to physical symptoms rather than psychiatric impairment.

48Based upon Dr Jwely’s assessment interview and review of documentation, he concluded as follows:

i. Ms. Saleb reported feeling disconnected from relationships and having little interest in activities she once enjoyed.

ii. She also reported experiencing anxiety and irritability.

iii. However, it is notable that Ms. Saleb lives with her children, indicating a level of ongoing family interaction.

iv. Before the accident, she described her relationships with family members as involving “lots of struggles,” but after the accident, she described them as “peaceful,” suggesting an improvement in her familial relationship.

v. Therefore, in the area of social functioning, in my opinion, from a psychiatric perspective, there is no more than Moderate (Class 3) impairment because of mental and behavioural disorders directly attributable to her index motor vehicle accident.

49I find the observations and conclusions of Ms. Hisey in para [47]iii. and iv., to be unpersuasive as well as the conclusions of Dr. Jwely at para [48]iii. and iv.; I find their observations and conclusions to be inaccurate for the following reasons. In particular, Ms. Hisey indicated reduced social activity, but no evidence of social withdrawal. I find these observations omit the changes in the nature of social interaction. For example, the evidence demonstrated the applicant’s activity in her Church was pronounced before the accident, she participated in Church events at least twice a week and socialized with her fellow attendees; post accident her Church attendance significantly dropped and most notably she attends at the most quiet times to avoid contact with others. I find this to be a highly notable change in the quality of the social interaction at her church that was not commented upon by either assessor, as I find the applicant has essentially precluded herself from effective social function within her Church.

50I also find the observations and conclusions of Dr Jwely suggesting that her family relationships have improved post-accident to be in error. I previously found the evidence of the applicant and her sisters both in collateral interviews indicates she was a prime figure and leader in her extended family pre-accident; testimony and statements indicated she was the smartest, most capable, best educated and most social in her group, and a person other family members turned to for advice; post-accident she was described as someone who leaned in against her mother on the sofa at now rare family get togethers, saying little with “I don’t know” as her most frequent answer. I find this to be a substantial change in the applicant’s social function that neither Ms. Hisey or Dr. Jwely captured in their assessments. I find neither assessor conducted collateral interview of the applicant’s family members, nor did they fully describe the applicant’s pre-accident social function.

51Further I find that while Dr. Jwely and Ms. Hisey made note of the applicant’s ability to appropriately greet them at their interviews, both assessors did not capture significant conflict events generated by the applicant. In particular I find the elevator/bicycle and bathroom fan incidents that demonstrated severe social dysfunction which neither assessor commented upon by either omission or as a result of insufficient investigation to expose these incidents through collateral interviews.

52I assign little weight to the Jwely report and the Hisey report for the reasons outlined in the directly preceding paragraphs in respect to their comments and conclusions in the domain of social function.

53I find that the applicant possessed pre-accident an exceptionally high level of social function as outlined in my previous findings at paragraphs [44] and [45]. Although the applicant claims a class 4 (marked) impairment in the social function domain, I find that based on the medical evidence and the AMA Guides’ guidance reproduced in paragraphs [24] and [38] above, that she has a class 5 (extreme) impairment in this domain. I make this finding for the following reasons.

54I find that the incidents involving the elevator/bicycle and the bathroom fan demonstrate she is precluded from useful social function. Specifically, the elevator/bicycle incident is more than a “significantly impeded” useful social function because the end result of her reaction precluded her from useful social function as it effectively blocked her from further interaction with the parties involved. In respect to the bathroom fan incident, it again goes beyond “significantly impeded” useful function as the end result of the interaction with the landlord demonstrated complete disintegration of the landlord/tenant relationship to the point that she felt useful social function was precluded and she felt it necessary to move; objectively the social function is precluded because the net effect was to de-house the applicant.

55Further I find the applicant’s high level of social function that established the applicant as a leader in her family was lost This role was not merely significantly impeded, rather she was precluded from this role as she transformed from a leader whom advice was sought, to an individual that could only answer questions for advice with “I don’t know”, effectively precluding her from her former leadership role within her extended family. I find that her pre-accident high social function is greatly diminished as a result of her injuries sustained in the accident; I note her sister’s tearful testimony of how her central role in the family was lost, I find this is further evidence that she is precluded from her leadership social function within her family due to her injuries sustained in the accident.

56I find that her accident related injuries precluded her from returning to her pre-accident employment. In respect to social function, the applicant was deemed by her assessor unable to deal with customers for the purpose of measurements and communication of the desired task; further any potential customer complaint would be beyond her capacity to handle. I find as a consequence of her now greatly diminished social function the applicant was precluded from returning to her previous work as a result of her sustained injuries in the accident precluding useful social function.

57I find because the applicant was precluded from her previous high social function in substantial areas of this domain, that she suffered a class 5 or extreme impairment in the domain of social function. As I have found one class 5 impairment, that is enough to meet the applicant’s onus to prove Criterion 8; however, for completeness, I will review the domains of Concentration, Persistence and Pace as well as Adaptation.

Concentration, Persistence and Pace

58I find the applicant sustained a class 4 or marked impairment of function in the domain of Concentration, Persistence and Pace.

59The factors to consider under this domain are:

Concentration, persistence and pace needed to perform many activities of daily living, including task completion. Task completion refers to the ability to sustain focussed attention long enough to permit the timely completion of tasks commonly found in activities of daily living or work settings…Strengths and weaknesses in mental concentration may be described in terms of frequency of errors, the time it takes to complete the task and the extent to which assistance is required to complete the task.

60The applicant submitted she sustained a class 4 or marked impairment in the domain of concentration, persistence and pace. Dr. Gerber found the following observations salient to his decision to rank the applicant as class 4 marked impairment:

i. the applicant really struggles to concentrate;

ii. she has to write things down, and even then, she forgets things:

iii. she is not able to follow recipes;

iv. she repeatedly asks questions that have already been answered;

v. she described how often she will start even a fairly basic task and not continue;

vi. she takes much longer to complete tasks;

vii. she often needs help in completing tasks;

viii. her sisters described how limited she now continues to be with regard to concentration.

61I note that Dr. Gerber found the following observations of Ms. Burnett to be particularly relevant:

i. “Since the accident, Ms. Saleb experiences impaired memory, concentration, and executive functioning which are impacting her ability to work and engage in activities of daily living. Ms. Saleb’s low mood, anxiety, fatigue, and irritability negatively impact her cognitive functioning.

ii. Ms. Saleb’s ability to persist with tasks was significantly affected by her pain, headache, fatigue, and low mood. Ms. Saleb requested to prematurely end the assessment prior to the scheduled end time on both assessment days (1 hour early on the first day and 30 minutes early on the second day), despite encouragement from this therapist to continue. This is in contrast to the client’s pre-accident ability to persist and engage in an eight-hour workday in addition to her leisure and social activities.

iii. Prior to the accident, Ms. Saleb would prepare meals for herself on a daily basis and enjoyed preparing traditional Egyptian foods and baking. Baking and cooking are tasks that requires initiation, concentration, and multi-tasking. During the baking activity, Ms. Saleb demonstrated poor concentration and attention to detail, adding one cup of water instead of a half cup as instructed. She had difficulty making a decision when realizing her mistake, pouring the batter into the baking dish then changing her mind and returning the batter to the bowl to add additional flour.

iv. The Store Inventory Activity was chosen to assess the client’s ability to concentrate and persist with a simple, yet detail-oriented task …. She was unable to correctly identify which items were listed at a lower price, demonstrating limitations in attention to detail, problem solving, and manipulation of information provided to come to a logical conclusion. These skills are required for daily activities such as budgeting and financial management, meal planning, for example taking stock of what ingredients you already have at home and creating a grocery list, as well as her workplace tasks such as taking client measurements and applying them to a sewing pattern. She required a 10-minute break after completing this activity for 20 minutes.

v. Based on the data collected over the two-day assessment period, it is evident that Ms. Saleb presently lacks the physical, cognitive and emotional skills to pace and persist with tasks/activities in line with her pre-accident occupations. In an effort to cope with her diminished capacity to concentrate, pace and persist, Ms. Saleb has created for herself a simplified lifestyle comprised of minimal physical involvement, low cognitive demands and reduced social interaction”.

62I find that the Guides require the assessor to explore the applicant’s ability to concentrate and focus on sustained effort to complete a task in a timely manner while in an activity of daily living or a work-like setting. In general, I find that the applicant was unable to sustain effort throughout both assessments and required to stop an hour early on the first day and an hour and a half early on the second day. I find the applicant performed poorly on the cooking task as unable to focus sufficiently to follow the directions and significant difficulty recovering from errors made. I find the applicant also performed poorly on the store inventory activity and was unable to focus on details of price and difficulties making a grocery list. I find the applicant also had difficulty in a work-like simulation of taking a person’s measurements and applying it to a sewing pattern.

63The respondent relies upon the report of Dr. Jwely who also integrated the observations of Ms. Hisey, OT, that the applicant exhibits some difficulty with concentration, persistence, and pace, particularly during tasks that require sustained attention or multitasking; she completes cognitive tasks more slowly than expected, makes occasional errors, and reports increased fatigue and difficulty concentrating. However, Ms. Hisey also found the applicant is able to follow instructions with cueing, complete light household tasks, manage her medication, make her bed and perform daily routines with the ability to initiate and complete the tasks. Ms. Hisey concluded that the primary cause of her difficulties are pain and fatigue, not psychiatric symptoms.

64Upon cross examination, Ms. Hisey’s evidence was tested for her assessment of what activities she evaluated with the applicant and how it was completed. For example, in the ability of the applicant to make her bed, the applicant was only tested in her ability to straighten the sheets and pillows on the bed and not changing the sheets or pillowcases. I find the lack of depth in Ms. Hisey’s description of the nature of the tasks to be completed by the applicant as well as the description of applicant’s ability to complete tasks in Ms. Hisey assessment causes me to assign less weight to her evidence.

65Dr. Jwely’s analysis of the domain included a paragraph recounting Ms. Hisey’s finding as well as a paragraph of his own analysis and comments as follow:

“Based on my assessment and review of documentation, post-accident, Ms. Saleb reported issues with concentration and forgetfulness. Additionally, she reported experiencing racing thoughts and intrusive memories. However, Ms. Saleb is able to manage her medications and finances independently, indicating a level of functionality that allows her to handle important responsibilities. Moreover, she continues to engage in activities such as cooking and making arts and crafts, suggesting that she can initiate and participate in tasks to some extent. This ability to maintain engagement in meaningful activities highlights Ms. Saleb's remaining positive function in this domain.”

In his subsequent conclusionary sentence, Dr. Jwely found the applicant sustained a class 3 or moderate impairment as a result of the accident in the domain of concentration, persistence and pace.

66I find upon cross-examination Dr. Jwely could not recall what activity the applicant continues to engage in making arts and crafts as he reported in his comments. When asked if he knew what crafts the applicant made, he could not answer as he had no memory of it. When challenged that the applicant made one glassware sized doyley since the accident and nothing further, he could not confirm or deny the statement as he had no memory of it.

67I find Dr. Jwely’s short analysis of this domain in his report and his lack of memory or other support for his assertions in his report, cause me to assign little weight to his expert opinion in the domain of concentration, persistence and pace.

68I find the evidence of the applicant persuasive that she was unable to successfully complete tasks in a timely manner in respect to activities of daily living, specifically tasks relating to cooking, grocery shopping and sewing like her former work. I accept her evidence that her ability to concentrate and focus is significantly impeded. I also accept her evidence that her ability to persist and successfully complete a task in a timely manner is significantly impeded as well.

69I find the applicant has discharged her onus and demonstrated she suffered a class 4 or marked impairment in the domain of concentration, persistence and pace.

Adaptation

70I find the applicant sustained a class 4 or marked impairment of function in the domain of adaptation.

71The factors to consider under this domain are:

Deterioration or decompensation in work or work like settings refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation signs and symptoms…He or she may decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks. Stressors common to the environment include attendance, making decisions, scheduling, completing tasks and interacting with others.

72The applicant submitted she sustained a class 4 or marked impairment in the domain of adaptation. Dr. Gerber found the following observations salient to his decision to rank the applicant as class 4 marked impairment:

i. The applicant struggles to interact with others and becomes irritable easily; she avoids contact with others to a significant extent.

ii. She has trouble following even basic instructions and recipes.

iii. She would not be able to attend work in a timely fashion on a regular basis; she would not be able to adequately make decisions; she would not be able to schedule and complete tasks.

iv. She would not be able to interact with colleagues and co-workers and members of the public, in the way that she was able to prior to the accident.

v. She would not be able to carry out detailed instructions.

vi. If there was a stressful situation, she likely would become overwhelmed easily and not able to cope with it.

vii. She likely would not be able to work without special supervision.

viii. Her sisters described just how different she now is with regard to adaptation, and how limited she continues to be in this area.

73I find it significant that an individual who was at one time able to adapt to the demands of an architect and later seamstress, could not adapt to the former vocation demand post-accident. I note Dr. Gerber’s comments that the applicant struggles to interact with others and avoids contact with others; and that she is unable to follow simple instructions. I also find it significant that Dr. Gerber opined she would not be able to work in her previous position as she would not be able to adequately make decisions, schedule and complete tasks, interact with co-workers and the public, carry out instructions and would easily become overwhelmed; in short, she would not be able to work without special supervision.

74I note that Dr. Gerber found the following observations of Ms. Burnett to be particularly relevant:

i. “At the time of the accident, Ms. Saleb was working full-time, five days per week, as a seamstress at Stitch It in two locations, including at Burlington Mall and Mapleview Mall. Shifts were between 10:00am and 6:00pm or 11:00am and 7:00pm. Her responsibilities included fitting and measuring customers, sewing clothes using a sewing machine, operating the cash register, and speaking with customers over the phone. She had worked in this position for approximately 2-3 years. She drove herself to work, located 10 minutes away.”

ii. “Following the accident, Ms. Saleb has not returned to work secondary to her physical, cognitive, and psycho-emotional symptoms. She reported that she feels dizzy and has headaches all the time which would greatly interfere with her ability to complete her work-related tasks. Ms. Saleb stated, “In Egypt I was an architect. I had my own career and my own car. I came to Canada and after all these years, this is where I am. The accident made it much worse, because I lost my energy to do anything I feel so disappointment and sad.”

iii. “The Multiple Errands Test allows for clients to encounter unexpected circumstances and assessed their ability to adapt in an unstructured environment. Ms. Saleb’s performance in this task demonstrates impaired executive functioning including challenges with planning, organization, and attention to detail. She was unable to complete 4/12 tasks correctly. She had difficulty planning activities efficiently, completing them one by one as listed instead of planning an efficient strategy, requiring her to go through the same aisles twice. She demonstrated difficulty with multi-tasking, for example looking for the four items under $6.00 as she was completing the other tasks. She made several errors in this task, indicating that she would have difficulty with work-related activities requiring attention to detail and multi-tasking, such as organizing client garments and sewing projects that require precise measurements or detailed work.”

iv. “The Busy Day Scenarios were chosen to assess the client’s functional cognition including her ability to plan, organize, and prioritize tasks and activities that she would be expected to complete in a normal “busy day”. Additionally, the third scenario was presented to assess the client’s ability to make decisions while staying in a specific budget. Ms. Saleb made several errors in this activity, demonstrating impairments in planning, attention to detail, budgeting, and prioritization of tasks. In the budgeting activity, when asked to make decisions regarding which items to purchase, Ms. Saleb did not use her entire budget and had difficulty making reasonable decisions based on the given parameters. She did not engage in organizational strategies for example listing how much she had left in the budget after each item or first including items that could not be split. For example, ordering enough coffee and tea for everyone, then determining how many baked goods she could purchase, which can be split. In the second busy day scenario, she did not use prioritization strategies such as scheduling a short errand prior to her hair cut in order to allow for additional time after her hair cut for the remaining errands. She did not drop off the film and complete other errands while it developed. As such, she would not be home until past 6:30pm, when she would have to still prepare dinner for her friends. This demonstrates impaired decision making, problem solving, and attention to detail.”

v. “Scheduling requires appropriate executive functioning including organization, attention to detail, and prioritization of activities, events, and errands. During the Weekly Calendar Scheduling activity, Ms. Saleb made several errors in this activity and was unable to correctly schedule 3/16 events or errands. She had difficulty with scheduling errands or appointments that included multiple steps and required problem solving or decision making. These are skills required for the client’s preaccident employment when scheduling customer’s work, prioritizing work tasks, and meeting customer deadlines.”

75I find it significant the number and depth of difficulties that were exposed by the applicant in the various tasks administered in Ms. Burnett’s assessments. Particularly I find the applicant in the multiple errands task could not multitask or organize the tasks effectively or efficiently, as demonstrated in her difficulty finding the four items under $6.00 while finding other items. I find it significant that in the busy day tasks she could not plan, organize and prioritize tasks causing her to go off budget, omit items for people, fail to complete some errands and returning home late to prepare dinner for friends. I find this demonstrated that her organizational and decision making skills are significantly impeded.

76The respondent submitted the applicant sustained a class 3 or moderate impairment in the domain of adaptation.

77The respondent relies upon the report of Dr. Jwely who also integrated the observations of Ms. Hisey, OT, and took into account the following salient facts for his conclusion:

i. “Overall in the multitask portion of testing, she completed portions of dishwashing and putting the dishes away while seated on her perching stool, she had already made her bed in anticipation of today’s assessment, and she did not sweep in anticipation of pain. She warmed up leftovers for herself. She participated minimally reporting limitations of pain and fatigue.”

ii. “She completed the inventories in a slower than reasonable amount of time. (Over 30 minutes). She reported having difficulty concentrating. She started staring forward and appeared to stop attending. She was talking slowly with her eyes closed at the end of the inventories; she reported she should have slept longer, she feels tired.”

iii. “In the weekly calendar activity, she followed 1/5 rules presented to her both verbally and in written form. She entered 14/17 possible appointments, 5 with errors including poor labelling and full time not included (she did not pay attention to the verbal/written rules.) She was not observed to reread the rules or instructions provided; which appeared to result in mistakes in execution. Of the appointments added to the calendar, 11/14 entries were completed accurately. Overall, she made 5 errors, despite using 3:55 minutes for planning, and overall time of almost 21 minutes, longer than average for her age and education. Her demeanour did not appear to change. She did however, rub her head and eyes, she reported she felt dizzy and exhausted.”

iv. The community outing was explained to Ms. Saleb at the end of the assessment. She placed her hand on her forehead and closed her eyes and reported, “I am just too tired. I need to lie down. I am in too much pain.” She asked for the assessment to be over. She did however admit that she does go grocery shopping, during non busy times and she makes it the only thing she does that day. She reported she is now exhausted. As requested, this writer ended the assessment.”

78Dr. Jwely commented on Ms. Hisey’s findings and noted that the applicant’s adaptation to stress and changes in routine is affected by her physical symptoms of pain and fatigue that limit her in demanding activities and adapts using pacing and avoidance. He found she has implemented adaptive strategies, such as gardening with raised beds and limiting outings to times when she feels able; he found that her ability to maintain daily routines and adjust her activities to accommodate her symptoms demonstrated significant adaptive capacity. Dr Jwely also attributed the applicant not returning to work post-accident to issues with dizziness, inability to sit in one position and inability to multitask. Dr. Jwely also found her ability to manage finances and make decisions by adapting to income replacement benefits and spending her savings from selling her house demonstrates an ability to adjust. Dr. Jwely again referenced her engagement with some level of cooking and arts and crafts suggests resilience and positive function in adaptation.

79I find under cross examination Dr. Jwely could not describe the engagement in cooking demonstrated by the applicant as he had no memory of it. When suggested if heating up food in a microwave demonstrated engagement in cooking, he had no answer. I will not recount the cross-examination of arts and crafts as found at paragraph [66] of this decision and rely upon my previous finding. I find Dr. Jwely’s lack of memory for the foundations of his findings compels that I assign less weight to his evidence.

80I find the evidence of the applicant persuasive that she was unable to successfully complete tasks in a timely manner, if at all, in respect to activities of daily living, specifically tasks relating to multiple errands, busy day tasks and calendar scheduling tasks. As noted above, I find the results of Dr. Gerber and Ms. Burnett’s assessments exposed the applicant has significant compromises in her ability to plan, organize, prioritize and make decisions that impedes executive function and impedes her ability to adapt.

81I find the applicant has discharged her onus and demonstrated she suffered a class 4 or marked impairment in the domain of adaptation.

Conclusion

82I find the applicant sustained a class 4 marked impairment in CPP and adaptation. I also find the applicant sustained a class 5 extreme impairment in social function. I find the applicant did not sustain at least a class 4 impairment in activities of daily living. As a result, I find the applicant has met her onus of proving she is catastrophically impaired under criterion 8.

83I find the applicant has sustained a catastrophic injury pursuant to criterion 8 of the Schedule.

ACB

84The applicant is not entitled to attendant care benefits in the amount of $6,424.02 per month from May 1, 2023 and ongoing, however, the applicant is entitled to $785.25 per month from November 20, 2024 to date and ongoing.

85The onus is on the applicant to demonstrate her entitlement to the benefit.

86Section 19 of the Schedule addresses ACBs. ACBs shall pay for all reasonable and necessary expenses that are incurred by the applicant for services provided by an aide or attendant. The onus is on the applicant to demonstrate that she required the care of an aide or attendant and that she incurred the expense of hiring one. Incurring an expense is outlined in s. 3(7)(e) of the Schedule, and requires that the applicant received the service from the aide or attendant, paid for it (or promised to pay for it or otherwise is legally obliged to pay for it), and the aide or attendant provided the service either in the course of their employment that they would have ordinarily engaged in, or they sustained an economic loss as a result of providing the service. The applicant may still be entitled to payment of ACBs despite not hiring an aide or attendant if she can show that the expense was not incurred because the respondent unreasonably withheld or delayed payment of the benefit, pursuant to s. 3(8) of the Schedule.

87Section 19(2) states that “the amount of a monthly attendant care benefit is determined in accordance with the version of the document entitled “Assessment of Attendant Care Needs” that is required to be submitted under section 42” of the Schedule. It further states that the monthly amount is calculated by “multiplying the total number of hours per month of each type of attendant care listed in the document that the insured person requires by an hourly rate that does not exceed the maximum hourly rate, as established under the Guidelines, that is payable in respect of that type of care and adding the amounts determined under clause (a), if more than one type of attendant care is required”.

88The applicant submitted that she is entitled to ACBs in the amount of $6,424.02 per month from May 1, 2023 and ongoing. The applicant relies upon the Assessment of Attendant Care Needs (“Form 1”) by Ms. Robbins, OT, dated May 1, 2023 (“Robbins report”) and submitted to the insurer June 19, 2023. The Robbins report detailed the applicant’s ACB needs as follows:

i. Level 1 - Ms. Robbins recommended the applicant requires for personal care: assistance with dressing and cuing to motivate her on a daily basis; emotional and cueing support as well as hands-on physical assistance to wash, brush and style her hair at the frequency and level before the accident as well as assistance with shaving and trimming toenails; assistance of 60 minutes per day for preparing all nutritious meals throughout the day as well as a referral to an occupational therapist to provide education about posture/positioning, pacing, and energy conservation during meal preparation; support for mobility including 60 minutes per day for community mobility as accessing the community on a daily basis is essential for her psycho-emotional and mental well-being; a referral to a driving assessment and rehabilitation program.

ii. Level 2 - Ms. Robbins recommended the applicant requires supervisory attendant care as follows: 15 minutes of daily assistance for cleaning the bathtub and toilet to ensure her bathroom remains hygienic; 15 minutes of daily assistance to help Ms. Saleb make her bed, change her bedding and ensure her bedroom remains hygienic. 20 minutes per week is recommended to address Ms. Saleb’s physical, cognitive, and psycho-emotional challenges with respect to clothing care, including assistance with hanging clothes and sorting clothing to be laundered; 90 minutes of support during the night to ensure comfort, safety, and security which are allocated under Basic Supervisory Care; 2 hours of custodial care to provide the client with emotional support and check-in during the day; 8-hour overnight care as Ms. Saleb’s safety would need assistance to respond safely in the case of an emergency.

iii. Level 3 - Ms. Robbins recommended the applicant requires complex healthcare and hygiene functions as follows: 30 minutes of daily assistance to help the client to complete her prescribed home exercise program as this is important for her physical recovery as well as her mental well-being; occupational therapy treatment to assist Ms. Saleb to engage in psycho-emotional exercises including mindfulness and meditation; 10 minutes of daily assistance to assist Ms. Saleb with application of prescribed skin care; assistance in administering and monitoring medication intake and maintaining/controlling her medication supply; physical assistance to wash her body parts not easily accessible due to limited range of motion in her neck and back.

89I find the recommendations made by Ms. Robbins in the above described paragraph to be in excess of a consideration of the reasonable and necessary test. Although many of these recommendations are undoubtedly helpful, I find Ms. Robbins provided little if any evidence to support her recommendations are reasonable and necessary, particularly in respect to lack of justification the specified support activities detailed in the report. I find other recommendations squarely fell outside the scope of occupational therapy and into psychological treatment as shown above in the Level 3 example. For the above stated reasons, I assign little weight to the Robbins report and the portions of the Form 1 dated May 1, 2023, that rely upon the Robbins report.

90I find that the applicant did not meet her onus that the ACBs outlined in the Robbins report and Form 1 by Ms. Robbins dated May 1, 2023 are reasonable and necessary.

91The respondent advised by notice of denial of benefits dated June 19, 2023 advising the maximum benefit payable for ACBs is $3,000.00 per month plus HST unless a catastrophic impairment was sustained in the accident; the insurer also gave notice requiring the applicant to attend a s.44 insurer examination. The insurer wrote to the applicant again on July 4, 2023 enclosing an Explanation of Benefits dated June 20, 2023 advising of pre-existing injury and referencing an OCF-3 dated February 2, 2023 and again advising of a s.44 examination.

92I find the respondent’s submission that the maximum non-catastrophic designated ACB benefit of $3000.00 plus tax to be a correct statement of law at the time it was made.

93The respondent advised by Explanation of Benefits dated August 22, 2023 that it received an Occupational Therapy In-home Insurer’s Examination report by Mr. Philips, OT, dated August 21, 2023 (“Philips report”) and Form 1 dated August 4, 2023 advising the respondent found to applicant required ACB in the monthly amount of $1,296.61. I find the Philips report and the accompanying Form 1 is an admission by the respondent pursuant to its duty to continually adjust the file. Given there is no reliable evidence to the contrary I find the ACBs outlined in the Philips report and companion Form 1, to be reasonable and necessary from the period from August 22, 2023 to November 20, 2024 when the ACB was withdrawn by the respondent due to new evidence arising from the respondent’s duty to continually adjust the file.

94The respondent advised by Explanation of Benefits dated November 19, 2024 that it received an Occupational Therapy In-home Insurer’s Examination report by Mr. Kaul, OT, dated August 19, 2024 (“Kaul report”) and Form 1 dated August 2, 2024 advising the respondent found the applicant no longer required ACB as of November 20, 2024.

95The applicant submitted that the respondent cut off ACB benefit entirely as of November 20, 2024 without good reason, however I find the applicant offered no evidence to the contrary other than the Robbins report that was previously found to have little weight.

96Upon extensive review of the above noted evidence, I find that the applicant suffered from eczema on her back as a result of the accident and the condition is ongoing and she is unable to treat it herself. I find the applicant is entitled to ACB at level 3 in her need of assistance for application of ointments/lotions to her back that is afflicted with eczema or psoriasis as a result of the accident. Accordingly, I find the applicant is entitled to an ongoing ACB from the date to the accident and ongoing for the treatment of this condition in respect to level 3 ACB; I assign 10 minutes per day or 70 minutes per week of level 3 ACB for this task.

97I previously noted that the applicant demonstrated difficulties with toenail trimming and weekly hair styling, both of which do not require an OT to service as other alternatives are available, therefore ACB cannot be said to be reasonable and necessary.

98I also previously noted that the applicant had difficulty with more intensive housekeeping tasks as demonstrated in the Gerber report and the Burnett report, also confirmed by the Hisey report, although previously assigned less weight, and Ms. Hisey’s testimony. I find that the applicant is entitled to ACB for more intensive housekeeping tasks. Accordingly, I find the applicant is entitled to an ongoing ACB from November 20, 2024 to date and ongoing for assistance with these tasks in respect to level 2 ACB; I assign 230 minutes per week of level 2 ACB for this task.

99I further previously noted that the applicant had difficulty with complex cooking tasks as demonstrated in the Gerber report and Burnett reports. I find that the applicant is entitled to ACB for cooking tasks. Accordingly, I find the applicant is entitled to an ongoing ACB from November 20, 2024 to date and ongoing for assistance with these tasks in respect to level 1 ACB; I assign 420 minutes per week of level 1 ACB for this task.

100My previous findings of the applicant’s entitlement to 70 minutes per week for level 3 ACB, 230 minutes per week for level 2 ACB and 420 minutes per week of level 1 ACB in respect to time required for the ACB service tasks are based upon estimates found in the Form 1 dated May 1, 2023 as the only evidence before the Tribunal for the referenced ACB service tasks times.

101I find that a calculation of attendant care cost at level 3 ACB time at 70 minutes per week or 1.17 hours at level 3 rate of $21.11 to be reasonable and necessary, resulting in a monthly ACB of $106.17, calculated as:

70min/60min = 1.17hr x 4.3hr = 5.03hr per month x $21.11/hr level 3 rate = $106.18 ACB payable per month.

102I find that a calculation of attendant care cost at level 2 ACB time at 230 minutes per week or 3.83 hours at level 2 rate of $14.00 to be reasonable and necessary, resulting in a monthly ACB of $230.58, calculated as:

230min/60min = 3.83hr x 4.3hr = 16.47hr per month x $14.00/hr level 2 rate = $230.58 ACB payable per month.

103I find that a calculation of attendant care cost at level 1 ACB time at 420 minutes per week or 7 hours at level 1 rate of $14.90 to be reasonable and necessary, resulting in a monthly ACB of $448.49 calculated as:

420min/60min = 7hr x 4.3hr = 30.1hr per month x $14.90/hr level 1 rate = $448.49 ACB payable per month.

104I find the overall cost of attendant care to be $785.25 per month. The applicant is entitled to $785.25 per month from November 20, 2024 to date and ongoing.

Legal Test

105To 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.

Issue [3]iv. Is the applicant entitled to $4,083.04 for occupational therapy services, proposed by NCCO Rehabilitation Services (“NCCO Rehab”) in a treatment plan dated July 17, 2023; and issue [3]vii., is the applicant entitled to $1,427.49 ($7,209.59 less $5,782.10 approved) for occupational therapy services, proposed by NCCO Rehab in a plan dated January 29, 2024?

106I find the applicant is entitled to $4,083.04 for OT services proposed by NCCO in a plan dated July 17, 2023. I further find the applicant is not entitled to $1,427.49 for OT services proposed by NCCO in a plan dated January 29, 2024.

107The applicant submitted that she is entitled to the benefit for OT services in the amount of $4,083.04 as outlined in the OCF-18 proposed by Kimberley Li (“Li”), OT, at NCCO Rehab dated July 17, 2023. The applicant submitted the treatment plan is reasonable and necessary as the goals of treatment can be achieved and the overall cost of it is reasonable. Specifically, Li outlined the goal of improved performance in daily activities through rehabilitation support:

i. support to improve independence in community-based tasks, including completing necessary errands and grocery shopping tasks;

ii. improving physical tolerance and promoting safety during exercises, functional transfers, and walks;

iii. implement concussion management strategies, cognitive rehabilitation, stress management, pain management strategies, and assist with establishing a routine;

iv. meaningful activities, including but not limited to church attendance and caring for her plants.

108I find the treatment plan clearly outlined specific goals and methodology to achieve the goals that appear to be within reach of the applicant. I find that the applicant has made out a prima facie case that the treatment plan is reasonable and necessary.

109The respondent submitted that the plan was not reasonable and necessary as outlined in its Explanation of Benefits dated August 22, 2023 and relied upon the Philips report for the denial of $4,083.04 in OT benefits. The Philips report specifically addressed the treatment plan and concluded because the applicant is participating in many of her daily tasks and is using pacing strategies and driving to a limited extent for groceries and medical appointments, there was no indication for rehabilitation support.

110I do not find the submissions of the respondent to be persuasive. I find the applicant was struggling with the tasks described and that the treatment plan was designed at approximately six months after the accident when the applicant’s opportunity for rehabilitation was optimum. I find it is precisely at this phase of rehabilitation that an insurer should be most flexible in assisting an insured with recovery.

111I find the applicant is entitled to $4,083.04 for OT services proposed by NCCO in a plan dated July 17, 2023.

112I find the applicant is not entitled to $1,427.49 for OT services proposed by NCCO in a plan dated January 29, 2024.

113The applicant submitted that she is entitled to the benefit for OT services in the amount of $1,427.49 as outlined in the OCF-18 proposed Li at NCCO Rehab dated January 29, 2024. The applicant submitted the treatment plan is reasonable and necessary as part of ongoing OT treatment; the goals of treatment can be achieved and the overall cost of it is reasonable. Specifically, Li outlined the goal of improved performance in daily activities through continued rehabilitation support with monitoring of results. The treatment plan was approved in part with the balance remaining in dispute.

114The respondent submitted it approved $5,782.10 of the $7,209.59 claimed for a balance of $1,427.49 for items not deemed reasonable and necessary. The respondent’s Explanation of Benefits dated January 29, 2024 specified that $878.40 for provider mileage to treatment was not covered, $498.75 for planning service was not reasonable or necessary and $150 for a yoga mat was also not reasonable and necessary.

115I find the applicant did not establish why $878.40 for provider mileage to treatment was necessary, nor any explanation as to why $498.75 for planning service was necessary, nor why $150 for a yoga mat was necessary. Given the applicant made no submissions towards these items, nor could it be readily determined on the face of the OCF-18 why they were needed, I find that the applicant has not established that the denied portion is reasonable and necessary.

116I find the applicant did not meet her onus and that she is not entitled to $1,427.49 for OT services proposed by NCCO in a plan dated January 29, 2024.

Issue [3]v. Is the applicant entitled to $1,995.25 for physiotherapy services, proposed by OMNI Health Care Solutions in a plan dated November 4, 2023; and issue [3]x., is the applicant entitled to $3,344.96 for physiotherapy services, proposed by Healthmax Physiotherapy Thornhill in a plan dated May 24, 2024?

117The applicant is entitled to both treatment plans for physiotherapy services.

118The applicant submitted $1,995.25 for physiotherapy services, proposed by OMNI Health Care Solutions in a plan dated November 4, 2023 is reasonable and necessary; the treatment plan included 18 sessions of treatment with the goals of pain reduction, increased range of motion, increase in strength and return to activities of normal living. Further the goals were to be measured by orthopedic and neurological testing as well as strength testing. I find the applicant has established a prima facie case that the treatment plan is reasonable and necessary.

119The respondent in its Explanation of Benefits dated November 5, 2023 submitted the plan was not reasonable and necessary based upon the report of Dr. Marchie, physiatrist, dated August 23, 2023 (“Marchie report”) that from a musculoskeletal perspective it was of no benefit due to the applicant’s self reporting after only three sessions and recommended self directed exercise in place of physiotherapy.

120I find that three sessions are insufficient to determine if physiotherapy is of benefit to the applicant, whether it be improving increased range of motion or strength or simple pain relief.

I take notice that muscle strength cannot be gained to any noticeable degree in merely three sessions; I find this is a commonly known fact of human physiology and Dr. Marchie most certainly should have knowledge of it. I find Dr. Marchie made a patently obvious erroneous conclusion that is readily apparent to any lay person. Accordingly, I assign little weight to Dr. Marchie’s report.

121Further, I find the insurer denied this treatment plan within the first year post-accident for patently invalid reasons when the insurer knew the insured applicant’s prospect for rehabilitation and recovery was near its best, despite the insured having paid premiums to the insurer for the eventuality of this need. Physiotherapy is the most critical treatment during this time for the vast majority of insured and should be viewed by the insurer generously, and coincidently the insurer’s best opportunity to mitigate potential future liability. Quick access to critical treatment is a fundamental purpose of no-fault accident benefits, and to deny a critical benefit so early in treatment works to undermine the overall purpose of the Schedule. I find the respondent’s conduct towards the applicant in this regard to be a violation of its duty to adjust in good faith, and overall reprehensible conduct that is most certainly immovable and stubborn.

122I find the applicant has met her onus and is entitled to $1,995.25 for physiotherapy services, proposed by OMNI Health Care Solutions in a plan dated November 4, 2023.

123The applicant submitted $3,344.96 for physiotherapy services, proposed by Healthmax Physiotherapy Thornhill in a plan dated May 24, 2024 is reasonable and necessary; the treatment plan included 12 sessions of manipulation and exercise with the goals of pain reduction, relief of concussion symptoms and return to activities of normal living. Further the goals were to be measured by orthopedic and neurological testing, vestibular ocular motor screen, balance assessment, Concussion Symptom Score (“CSS”), daily visitation notes and functional observations. I find the applicant has established a prima facie case that the treatment plan is reasonable and necessary.

124The respondent in its Explanation of Benefits dated May 30, 2024 submitted the plan was not reasonable and necessary based upon the singular reason of exhaustion of policy coverage limits.

125I find the applicant has meet her onus and is entitled to $3,344.96 for physiotherapy services, proposed by Healthmax Physiotherapy Thornhill in a plan dated May 24, 2024.

126I find given the applicant is deemed catastrophically impaired by this decision, the applicant is entitled to both treatment plans.

Issue [3]vi., Is the applicant entitled to $942.96 ($6,229.61 less $5,286.65 approved) for aquatherapy, proposed by NCCO Rehabilitation Services in a plan dated January 5, 2024; and issue [3]viii., is the applicant entitled to $7,244.90 for aquatherapy, proposed by Oakville Physio Aquatic Centre in a plan dated March 11, 2024; and issue [3]xii., is the applicant entitled to $5,502.12 for aquatherapy, proposed by NCCO Rehabilitation Services in a plan dated June 26, 2024?

127I find the applicant is not entitled to $942.96 ($6,229.61 less $5,286.65 approved) for aquatherapy, proposed by NCCO Rehab Services in a plan dated January 5, 2024. The applicant is entitled to the other two treatment plans for aquatherapy.

128The applicant submitted that she is entitled to $942.96 ($6,229.61 less $5,286.65 approved) for aquatherapy, proposed by NCCO Rehab Services in a plan dated January 5, 2024 because it is reasonable and necessary. I find the 24 sessions and the administrative costs attached were approved by the respondent and are not an issue in dispute.

129The respondent in its Explanation of Benefits dated January 24, 2024 submitted the provider mileage expense of $614.88 at line 3 of the OCF-18 dated January 5, 2024 was not a covered item by the policy; the respondent submitted the same holds true for the transportation expense claimed by the applicant of $219.00 at line 9 of the OCF-18.

130I note that transportation costs and expenses are excluded by the Schedule unless for specific circumstances not claimed here.

131I find the applicant did not establish why $942.96 for provider mileage expense to treatment was eligible or necessary, nor did she establish why $219.00 for the applicant’s transportation to the service was an eligible expense.

132I find the applicant did not meet her onus and that she is not entitled to $942.96 for transportation line items in a treatment plan proposed by NCCO Rehab dated January 5, 2024.

133The applicant is entitled to $7,244.90 for aquatherapy, proposed by Oakville Physio Aquatic Centre in a plan dated March 11, 2024.

134The applicant submitted $7,244.90 for aquatherapy, proposed by Oakville Physio Aquatic Centre in a plan dated March 11, 2024 is reasonable and necessary as the goals of the plan are to increase strength and range motion as well as reduce pain with the goals of the plan evaluated by notation tracking any changes to pain and testing of any improvement to range of motion and muscle testing. I find the applicant has established a prima facie case that the treatment plan is reasonable and necessary.

135The respondent in its Explanation of Benefits dated March 19, 2024 submitted the plan was not reasonable and necessary based upon the Marchie report conclusions that from a musculoskeletal perspective further physiotherapy treatment was of no benefit to the applicant and recommended self directed exercise in place of physiotherapy.

136I have previously found the Marchie report is of little weight; I find $7,244.90 for aquatherapy, proposed by Oakville Physio Aquatic Centre in a plan dated March 11, 2024 is reasonable and necessary and the applicant is entitled to the benefit.

137The applicant is entitled to $5,502.12 for aquatherapy, proposed by NCCO Rehabilitation Services in a plan dated June 26, 2024.

138The applicant submitted $5,502.12 for aquatherapy, proposed by NCCO Rehabilitation Services in a plan dated June 26, 2024 is reasonable and necessary as the goals of the plan are to increase strength and range motion, improve balance as well as reduce pain, decreased abnormal tone, spasticity, and rigidity. Goals are to be evaluated by preparation of a comprehensive progress report, upon exhaustion of this treatment plan, documenting the client’s progress and determining the need for any additional assessment and/or treatment. I find the applicant has established a prima facie case that the treatment plan is reasonable and necessary.

139The respondent in its Explanation of Benefits dated June 27, 2024 submitted the plan was not reasonable and necessary. Based upon the policy limit of $65,000 coming close to exhaustion with approximately $4,002.98 available after incurred and approved expenses, and in light of the ongoing ACBs of approximately $1,298.61 per month, the plan was not approved.

140I find given the applicant was found to have sustained a CAT injury with the additional funds available, the applicant is entitled to any incurred benefit up to $5,502.12 for aquatherapy, as proposed by NCCO Rehab in a plan dated June 26, 2024. It must be noted that the applicant advised in the Burnett report that she was compelled to stop swimming due to her eczema condition in the summer of 2024, therefore any aqua therapy treatment not incurred cannot be found to be reasonable and necessary due to the applicant’s limitation for this therapy from other medical conditions.

Issue [3]xi., Is the applicant entitled to $8,694.24 for gym membership and pet therapy, proposed by NCCO Rehab in a plan dated June 3, 2024?

141The applicant entitled to $8,694.24 for gym membership and pet therapy, proposed by NCCO Rehab in a plan dated June 3, 2024.

142The applicant submitted that $8,694.24 for gym membership and pet therapy, proposed by NCCO Rehabilitation Services in a plan dated June 3, 2024 is reasonable and necessary because research has consistently shown that interactions with animals, especially pets, can have therapeutic effects on individuals experiencing mental health difficulties. The unconditional companionship and affection offered by a pet can contribute significantly to improving mood and reducing symptoms of anxiety and depression as diagnosed in the applicant. Further the gym membership representing $1,025.81 of the costs of this plan addresses the recommended home exercise program endorsed across both s.25 and s.44 assessor reports.

143The respondent submitted in its explanation of benefits dated June 14, 2024 that applicant was too close to her policy limits to approve the plan. Further, the respondent submitted the pet therapy was experimental in nature and the Schedule at s.15(2)(a) relieves the insurer from treatments that are experimental in nature.

144I do not find the respondent’s submissions to be persuasive. I take notice that pet therapy is an accepted and important therapy to treat the conditions of anxiety and depression that the applicant sustained as a result of the accident. In addition, pet therapy was recommended in the applicant’s CAT assessment and by her attending OT, Ms. Li. Further, I take notice that the government of Ontario has classified service animals to accommodate this therapy and need. I find the respondent ought to have had knowledge of the validity of pet therapy and its refusal to decline the plan based upon experimental nature can only be categorized as stubborn and immoderate.

145Given the applicant has been deemed CAT and the funding limits have now been increased, and for the above stated reasons, I find the applicant entitled to $8,694.24 for gym membership and pet therapy, proposed by NCCO Rehabilitation Services in a plan dated June 3, 2024.

Issue [3]xiv., Is the applicant entitled to $226.00 ($2,686.00 less $2,460.00 approved) for disability management, proposed by HAL Disability Management in a plan dated January 30, 2025?

146The applicant is not entitled to $226.00 ($2,686.00 less $2,460.00 approved) for disability management, proposed by HAL Disability Management in a plan dated January 30, 2025.

147The applicant made no submissions with the respect to this item, nor did the respondent make any submissions with respect to this item.

148Without any submissions or evidence in support of this plan, I find that the applicant did not meet her onus and is not entitled to $226.00 ($2,686.00 less $2,460.00 approved) for disability management.

Assessments

Issue [3]ix., Is the applicant entitled to $621.50 ($3,081.50 less $2,460.00 approved) for a physiatry assessment, proposed by HAL Disability Management in a plan dated April 4, 2024?

149The applicant is not entitled to $621.50 ($3,081.50 less $2,460.00 approved) for a physiatry assessment.

150The applicant submitted that her injuries were significant as documented by her family physician and warranted further medical investigation; accordingly, she submitted she is entitled to $621.50 ($3,081.50 less $2,460.00 approved) for a physiatry assessment, proposed by HAL Disability Management in a plan dated April 4, 2024.

151The respondent in its Explanation of Benefits dated May 2, 2024 submitted the plan was partially approved for $2,460.00 but the remaining balance of $621.50 is not reasonable and necessary because the assessment fee of $2,550.00 quoted in the plan, was in excess of the statutory limit of $2,000.00 for assessment fees.

152I find the respondent’s submissions to be persuasive; the respondent is correct that s.25(5) of the Schedule limits assessment fees for $2,000.00. I find the applicant is not entitled to $621.50 ($3,081.50 less $2,460.00 approved) for a physiatry assessment.

Issue [3]xiii., Is the applicant entitled to $12,000.00 ($20,660.00 less $8,660.00 approved) for CAT assessments, proposed by Okell Rehabilitation Services Inc in a plan dated August 16, 2024?

153The applicant is not entitled to $12,000.00 ($20,660.00 less $8,660.00 approved) for CAT assessments, proposed by Okell Rehabilitation Services Inc in a plan dated August 16, 2024.

154The applicant submitted that she is entitled to $12,000.00 ($20,660.00 less $8,660.00 approved) for CAT assessments, proposed by Okell Rehabilitation Services Inc in a plan dated August 16, 2024. The OCF-18 indicated 5 line items of CAT determination supporting assessments, including 2 OT assessments for an inhouse assessment and situational assessment plus a third assessment fee for combining the in-home and situational assessments plus another assessment fee for a collateral interview, and a singular line item of $10,000.00 CAT determination assessment plus two documentation fees of $200.00 and taxes.

155The respondent in its Explanation of Benefits dated September 25, 2024 submitted the plan was partially approved for $8,660.00 but the remaining balance of $12,000.00 is not reasonable and necessary because the third OT assessment fee of $2000.00 for combining the in-home and situational assessments is included in the production of the component assessments. Also, the separate assessment fee for a collateral interview is invalid. The $10,000.00 CAT determination assessment fee is invalid as section 25(5)(2) of the Schedule provides $2,000.00 is the maximum payable for any one assessment.

156I find the submissions of the respondent are persuasive. The Schedule clearly limits an assessment fee to $2,000.00; creating additional assessment fees for a collateral interview and combining two OT assessments into a single report are additional expenses, as those endeavours are not stand alone assessments of a specialized nature, rather they are part and parcel of other assessments.

157I find the applicant has not met her onus and she is not entitled to $12,000.00 ($20,660.00 less $8,660.00 approved) for CAT assessments, proposed by Okell Rehabilitation Services Inc in a plan dated August 16, 2024.

OCF-6

Issue [3]iii., Is the applicant entitled to $27.39 for medication, submitted on a claim form (OCF-6) dated July 11, 2023?

158The applicant is not entitled to $27.39 for medication, submitted on a claim form (OCF-6) dated July 11, 2023.

159The applicant made no submissions with the respect to this item, nor did the respondent make any submissions with respect to this item.

160I find that the applicant did not meet her onus and is not entitled to $27.39 for medication, submitted on a claim form (OCF-6) dated July 11, 2023.

Interest

161Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the payment of overdue benefits.

Award

162The 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. I find a special award of 50% applies to the following benefits for the reasons stated in the analysis these issues:

i. $4,083.04 for OT services proposed by NCCO Rehab in a plan dated July 17, 2023; the sum total of the 50% award for this plan is $2,041.52.

ii. $1,995.25 for physiotherapy services, proposed by OMNI Health Care Solutions in a plan dated November 4, 2023; the sum total of the 50% award for this plan is $947.63.

iii. $8,694.24 for gym membership and pet therapy, proposed by NCCO Rehab in a plan dated June 3, 2024; the sum total of the 50% award for this plan is $4,347.12.

163I find for greater certainty that the sum of awards for the three above described treatment plans is $2041.52 + $947.63 + $4,347.12 = $7,336.27 total award.

164The Tribunal’s final Orders:

i. The applicant sustained a CAT impairment as defined by the Schedule.

ii. The applicant is not entitled to attendant care benefits in the amount of $6,424.02 per month from May 1, 2023 and ongoing, however the applicant is entitled to $785.25 per month from November 20, 2024 to date and ongoing.

iii. The applicant is not entitled to $27.39 for medication, submitted on a claim form (OCF-6) dated July 11, 2023.

iv. The applicant is entitled to $4,083.04 for occupational therapy services, proposed by NCCO Rehabilitation Services in a treatment plan dated July 17, 2023.

v. The applicant is entitled to $1,995.25 for physiotherapy services, proposed by OMNI Health Care Solutions in a plan dated November 4, 2023.

vi. The applicant is not entitled to $942.96 ($6,229.61 less $5,286.65 approved) for aquatherapy, proposed by NCCO Rehabilitation Services in a plan dated January 5, 2024.

vii. The applicant is not entitled to $1,427.49 ($7,209.59 less $5,782.10 approved) for occupational therapy services, proposed by NCCO Rehabilitation Services in a plan dated January 29, 2024.

viii. The applicant is entitled to $7,244.90 for aquatherapy, proposed by Oakville Physio Aquatic Centre in a plan dated March 11, 2024.

ix. The applicant is not entitled to $621.50 ($3,081.50 less $2,460.00 approved) for a physiatry assessment, proposed by HAL Disability Management in a plan dated April 4, 2024.

x. The applicant is entitled to $3,344.96 for physiotherapy services, proposed by Healthmax Physiotherapy Thornhill in a plan dated May 24, 2024.

xi. The applicant is entitled to $8,694.24 for gym membership and pet therapy, proposed by NCCO Rehabilitation Services in a plan dated June 3, 2024.

xii. The applicant is entitled to $5,502.12 for aquatherapy, proposed by NCCO Rehabilitation Services in a plan dated June 26, 2024.

xiii. The applicant is not entitled to $12,000.00 ($20,660.00 less $8,660.00 approved) for CAT assessments, proposed by Okell Rehabilitation Services Inc in a plan dated August 16, 2024.

xiv. The applicant is not entitled to $226.00 ($2,686.00 less $2,460.00 approved) for disability management, proposed by HAL Disability Management in a plan dated January 30, 2025.

xv. The applicant is entitled to the sum of awards for $7,336.27 total award.

xvi. The applicant is entitled to interest on the payment of overdue benefits.