Licence Appeal Tribunal File Number: 25-003282/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:
Maysaa Hussein
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Tami Cogan
APPEARANCES:
For the Applicant:
Akpevweoghene Djetore, Counsel
For the Respondent:
Elizabeth Scott, Counsel
Interpreters:
Sura Jadir, Arabic Language
Wardia Ochana, Arabic Language
Court Reporter:
Hanya Palumbo
Heard by Videoconference:
December 1, 2, 3, 4 and 5, 2025
OVERVIEW
1Maysaa Hussein, the applicant, was involved in an automobile accident on February 26, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided are:
Has the applicant sustained a catastrophic impairment as defined by the Schedule?
Is the applicant entitled to attendant care benefits in the amount of $510.45 per month from July 27, 2023 to present?
Is the applicant entitled to $1,796.02 for occupational therapy services, proposed by Functionability Rehabilitation Services LP, in a treatment plan/OCF-18 (“plan”) submitted on August 1, 2023?
Is the applicant entitled to $3,807.66 for physiotherapy services, proposed by South Keys Health Inc., in a plan submitted on May 16, 2024?
Is the applicant entitled to $355.19 for medication, submitted on a claim form (OCF-6) dated November 4, 2024?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I have considered the evidence presented and the parties’ submissions and I find:
The applicant has not sustained a catastrophic impairment as defined by the Schedule.
The applicant is not entitled to attendant care benefits in the amount of $510.45 per month from July 27, 2023 to present.
The applicant is not entitled to $1,796.02 for occupational therapy services, proposed by Functionability Rehabilitation Services LP, in a plan submitted on August 1, 2023.
The applicant is not entitled to $3,807.66 for physiotherapy services, proposed by South Keys Health Inc., in a plan submitted on May 16, 2024.
The applicant is entitled to $83.34 for Topiramate, prescribed medication, submitted on a claim form (OCF-6) dated November 4, 2024. The balance of $266.85 is not payable.
The applicant is entitled to interest on any overdue payment of benefits.
PROCEDURAL ISSUES
Motion to Exclude Adjuster’s Log Notes
4The applicant filed a notice of motion on October 29, 2025, seeking to have the adjuster’s log notes excluded from evidence on the grounds that they were served on October 20, 2025, which is not in compliance with the case conference report and order.
5The respondent did not take a position because a s. 10 award claim is not an issue, and the respondent will not be relying on the notes. The respondent reserved the right to change its position if a s. 10 award claim was sought.
6The applicant submitted the records were requested for review in consideration of a s. 10 award, however a s.10 award is not being claimed.
7I find that after having the records for 42 days the applicant has had sufficient time to review, and the late service of the adjuster’s log notes will not prohibit the records from being entered into evidence. The motion is denied. The records are not automatically entered as exhibits, and it will be to the parties’ discretion to request they be entered as evidence. During the hearing neither party referred to the records or made a request to enter them as evidence.
Motion to Exclude the Respondent’s CAT Assessment Reports
8The applicant filed a notice of motion on October 29, 2025, seeking to exclude the respondent’s CAT reports on the grounds that they were served on October 24, 2025, which is not in compliance with the case conference report and order.
9The respondent submits the reports were received from the vendor on September 18, 2025, and faxed to the applicant on October 2, 2025. At the time of the case conference the applicant was aware that the CAT assessment reports were not yet available and insisted on proceeding to a hearing without knowing the outcome of the assessments or when the reports would be available.
10This appeal was filed on March 11, 2025, after the respondent gave notice of the CAT assessments being scheduled. I find the reports were served on the applicant within 10 business days of receipt, in accordance with the Schedule. I find it would not be procedurally fair for the respondent’s evidence to be excluded for being served late in this circumstance. The applicant was fully aware that proceeding to a hearing prior to the respondent’s evidence being available would prejudice the respondent’s ability to defend its case. The applicant has had possession of the reports for 38 days prior to the hearing, which I find is sufficient time to review and prepare for cross-examination. The motion to exclude the CAT assessment reports is denied.
Motion to Exclude the Respondent’s Witnesses
11The applicant filed a notice of motion on November 6, 2025, seeking to exclude the respondent’s witnesses due to late service of the respondent’s witness list, the expert’s curriculum vitae and acknowledgement of expert duty forms, received on October 31, 2025. The applicant submits the late service did not allow sufficient time to challenge the expert witnesses in accordance with the Rules.
12I note the respondent filed their final witness list with the Tribunal on October 17, 2025, with the applicant copied on the email. This was 45 days prior to the hearing and in accordance with the case conference report and order. The witnesses listed are the same individuals as are listed in the case conference report and order. I also note that the expert’s credentials are listed on their assessment reports which were served on October 2, 2025. The credentials of the experts were served 32 days prior to the hearing, rather than 45 days as required by Rule 10.3. The notice of challenge is required to be given no later than 21 days prior to the hearing. The late service of the witness credentials left 11 days for the applicant to remain in compliance with Rule 10.4. However, had the applicant believed that more than 11 days were required to make the challenge, a motion for a time extension was available. I have also taken into consideration that the applicant submits she does not intend to challenge the expert’s credentials. The motion to exclude the respondent’s witnesses is denied.
Request for Costs
13The applicant filed a notice of motion on October 29, and November 6, 2025, seeking a cost award due to the additional time and expense to prepare for the hearing because the respondent served their materials, noted above, late.
14I note the applicant did not make submissions as to why the additional time to prepare was required. I find that preparation was required regardless of when the materials were received. The motion for costs is denied.
Request to Change Applicant’s Witnesses
15At the start of the hearing, the applicant sought leave to change the witness list. The family physician has not returned calls, and therefore the applicant wanted to have the applicant’s spouse testify instead of the doctor.
16The respondent objected on the grounds of procedural fairness. The applicant has given no prior notice of this request, and no statement of anticipated testimony has been provided. The case conference report and order does not provide for a lay witness, and it would be unfair to allow the applicant to swap witnesses at the last moment.
17The applicant submitted the family physician had initially been cooperative, however since he has not returned calls for the past two business days there is concern that he will not attend. He is aware that he is scheduled to testify on the fourth day of this five-day hearing. The applicant’s husband would testify to his observations of the applicant and not offer opinion. The applicant submits that any prejudice to the respondent can be resolved by it choosing when the witness testifies.
18I note that the family physician is under summons and that the drop in communication has only been over the past two business days. The applicant did not request relief under s 12 of the Statutory Powers and Procedures Act . I find it would be procedurally unfair to allow the applicant’s spouse to testify without prior notice to the respondent, and potentially be an additional witness, should the family physician attend in compliance with the summons. The request to change witnesses is denied.
ANALYSIS
Catastrophic Impairment (CAT) Determination
19I find the applicant has not suffered a CAT impairment as a result of the accident.
20On November 15, 2024, the applicant applied to the respondent for a determination that her accident-related impairments meet the definition of a CAT impairment under the Schedule. The current dispute involves whether she sustained a CAT impairment pursuant to Criterion 7 and Criterion 8.
Criterion 7
21I find the applicant has not suffered a CAT impairment under Criterion 7 of the Schedule as a result of the accident.
22In order to qualify for CAT under Criterion 7, the applicant must prove that she has a combination of physical and psychological impairment ratings from medical professionals that meet the 55% whole person impairment (“WPI”) threshold as outlined in Chapter 4 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”), 4th Edition, 1993.
23The applicant submits the accident contributed to her physical and psychological injuries. She experienced headaches before the accident that were not severe or frequent and which resolved after the removal of her birth control device. Since the accident her headaches have been severe and constant. The applicant experienced back pain before the accident, but she was independent and able to care for her family and work. Since the accident, she requires a Personal Support Worker for activities of daily living. The applicant relies on the CAT assessment reports and testimony of Dr. Hien Ta, anesthesiologist, and Dr. Karen Abrams, psychiatrist.
24The respondent submits that the applicant had reported knee pain, back pain, all-over joint pain, and headaches for years before the accident. She was diagnosed with fibromyalgia, and there are no records in evidence that speak to her headaches being related to or being resolved after the removal of her birth control device. It was not until May 2016, that she reported any symptoms related to the accident, even though she had attended her family physician for non-urgent complaints before that date. Her family physician investigated sinusitis as the cause of her headaches. Her back pain was attributed to degenerative disc disease. The applicant had reported, in 2017, that she was independent with her activities of daily living and had no psychological complaints. The applicant testified that she was working after the accident. The applicant has not submitted any treatment plans for psychological services. The respondent relies on the CAT assessment reports and testimony of Dr. Rehan Dost, neurologist; Dr. Abdul-Wahab Khan, physiatrist; Mr. Jeff Ford, occupational therapist; and Dr. Ahmed Jwely, psychiatrist.
25The WPI ratings given by the applicant’s and respondent’s assessors are summarized in the chart below. The Tribunal’s findings under this criterion are preliminarily included here, with supporting reasons to follow.
AMA Guides 4th Ed.
Applicant’s CAT Ratings Summary
Respondent’s CAT Ratings Summary
Tribunal CAT Ratings Summary
Physical Impairments
Spine Cervical Thoracic Lumbosacral Total
Dr. Ta 5% 5% 10% 19%
Dr. Khan 5% 5% 5% 15%
15%
Medication
Dr. Ta 3%
Dr. Khan 3%
3%
Occipital Neuralgia/ Headache
Dr. Ta 10%
Dr. Dost 10%
10%
Sleep
Dr. Ta 9%
0%
0%
Sexual Impairment
Dr. Ta 5%
0%
0%
Total WPI Combined Values Chart:
39%
26%
26%
AMA 4th Ed. Mental/behavioural Impairments
Psychiatric Rating
Dr. Abrams 40%
Dr. Jwely 15%
15%
TOTAL CRITERION 7 COMBINED RATING
Total WPI Criterion 7 Combined Values Chart:
63%
37%
37%
26I note that Dr. Ta’s assessment was conducted in November 2023 and his CAT assessment report is dated November 10, 2024. Dr. Ta testified that the original assessment was not for the purpose of CAT, and he did not see the applicant again before preparing his CAT assessment report. Dr. Ta testified that the applicant did not report having had any pre-existing conditions, and was not on any medications at the time of the accident. Dr. Ta, Dr. Dost, and Dr. Khan were provided the applicant’s medical records from 2013 to June 2023.
Spine Ratings
27Cervical Spine – Dr. Ta assigned a WPI rating of 5%. He testified that there is no evidence of nerve entrapment. Dr. Khan also assigned a WPI rating of 5% for the diagnosis of cervical spine sprain/strain.
28Thoracic Spine – Dr. Ta assigned a WPI rating of 5%. He testified that the applicant reported rib pain. Dr. Khan also assigned a WPI rating of 5% for the diagnosis of thoracic spine sprain/strain.
29Lumbosacral – Dr. Ta assigned a WPI rating of 10%. Dr. Ta testified that the applicant reported urinary incontinence and pain radiating down her leg. I note that the medical records refer to urinary urgency, not urinary incontinence. I find that Dr. Adejumo’s records on June 28, 2024, do not support the complaints of urinary incontinence because it is noted that the applicant had no difficulty with bowel or bladder control. In his report, Dr. Ta recommends an EMG to assist with diagnosis. He testified that he did not have an EMG which is required to confirm radiculopathy, nor did he confirm a reduction in reflexes or atrophy, which would be required for a 10% rating in accordance with the Guides. I find that a 10% WPI is improper based on the lack of criteria specified by the Guides.
30Dr. Khan assigned a WPI rating of 5% for the diagnosis of lumbar spine sprain/strain. He testified that during his examination of the applicant there was not evidence of loss of reflexes or atrophy, nor was there an EMG that would support radiculopathy. Therefore, he could not assign a DRE III for the lumbosacral spine. I accept this rating of 5% WPI.
Medication Rating
31Dr. Ta and Dr. Khan agree on the WPI of 3% for medication for the treatment of the applicant’s pain symptoms. Based on the evidence I have been directed to, I have no reason to interfere with this rating.
Occipital Neuralgia / Headache Ratings
32Dr. Ta assigned a 10% WPI rating for bilateral greater occipital impairment, which combined 5% WPI for both right and left sides, which is based on Chapter 4, Table 23 of the Guides. Dr. Dost assigned a 10% WPI for the applicant’s headaches, thereby agreeing with Dr. Ta’s rating.
33Based on the evidence I have been directed to, I have no reason to interfere with the 10% WPI rating.
Sleep Disturbance
34Dr. Ta assigned a rating of 9% WPI for sleep disturbance based on Chapter 4 Table 6 of the Guides. He acknowledged in his testimony that the applicant reported nightmares, and pain affecting her sleep.
35Dr. Dost testified that there is no neurological cause, or severe traumatic brain injury, to explain the applicant’s sleep disturbance. Dr. Dost did not agree with Dr. Ta’s rating because the applicant’s main complaint that interferes with her sleep is pain. This was corroborated by the applicant’s testimony that it is continuous pain that interferes with her sleep. Dr. Dost testified that where a rating is given for pain, it would be duplicative to assign a rating for a sleep disorder caused by pain.
36I prefer the WPI rating of 0% for sleep disturbance because I agree with Dr. Dost that the Guides require an impairment rating for pain to be considered only once when calculating the whole person impairment. I find a 3% WPI rating has been advanced for the treatment of the applicant’s pain with the use of medication, and therefore a rating for pain causing sleep disturbance is duplicative.
Sexual Impairment
37Dr. Ta assigned a rating of 5% WPI for sexual impairment based on Chapter 4, Table 19 of the Guides. He testified the rating was based on the applicant’s report of pain during intercourse. Dr. Dost disagrees with this rating because there is no evidence of a physiological cause for the applicant’s complaint. In Dr. Dost’s opinion, pain does not meet the criteria under Table 19, and a rating for pain has already been advanced.
38I find that a 0% WPI rating is appropriate because Chapter 4, Table 19 does not consider pain as a criteria and the applicant’s complaint of sexual impairment is solely attributed to pain.
Lower and Upper Limbs
39Although I heard evidence from the applicant regarding her right knee pain, both Dr. Ta and Dr. Dost agree that her right knee does not qualify as an impairment. The applicant’s range of motion was limited to 110 degrees. Both assessors gave a 0% WPI for lower limb rating.
40Although I heard evidence from the applicant regarding her shoulder pain, both Dr. Ta and Dr. Dost agree that her shoulders do not qualify for a WPI rating.
41Based on the evidence I have been directed to, I have no reason to interfere with the lower and upper limb ratings advanced by both the applicant’s and respondent’s expert witnesses.
Psychiatric Rating
42Dr. Abrams diagnosed the applicant with Somatic Symptom Disorder with Predominant Pain, Persistent; Major Depressive Disorder with anxious distress; and a Specific Phobia: Situational Type: Vehicular. Dr. Abrams testified that she used the “California method” which converts an individual’s Global Assessment of Functioning (GAF) rating to a WPI by using a conversion table. Based on the conversion table the applicant’s GAF of 45 equates to a WPI of 40%.
43I note that the GAF is not considered in the 4th Ed. Chapter 4, which is the appropriate Guide for the matter at hand. The GAF rating is considered in the 6th Ed. Chapter 14. Although not considered in the 4th Ed., the GAF can be a helpful tool for understanding a person’s level of function. However, I have not been directed to evidence of the questions or answers the applicant provided, on which the GAF of 45 is based.
44I do not find the score of 45 to be persuasive because it is within the GAF range of 50-41, and in the 6th Ed. Chapter 14, this GAF range is described as “Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” There has not been evidence that supports suicidal ideation, severe obsessional rituals, or any involvement with the police. Nor have I heard evidence that the applicant does not have any friends. Regarding her ability to work, I find that consideration must be given to the reasons for her level of ability. In her report, Dr. Abrams provides a description of the GAF score of 41-50 as “severe functional impairment in numerous areas such as family relations, mood, mobility and pain”. I note that Dr. Abrams does not provide a reference to which source provided this description, which is not consistent with the Guides.
45Dr. Abrams testified she also considered the Guides, 4th Ed., Chapter 4, Table 3 for Emotional or Behavioural Impairments. She opined the applicant has one Moderate rating (15-29% - limitations of some but not all social and interpersonal daily living functions) and three Severe ratings (30-49% - limitations impeding useful actions in almost all social and interpersonal daily functions). She concluded that 40% WPI rating was appropriate for the applicant.
46I note that Dr. Abrams did not clarify in her testimony, and it is wholly unclear to me in her report, how she identified four ratings - one moderate and three severe, to be combined into one WPI % using Table 3. I have not been directed to evidence that explains what is being rated as moderate or severe. I find that Table 3 provides guidance on quantifying a singular percentage rating and does not consider any combinations.
47The testimony of the applicant and reporting to assessors has been that she is unable to sustain employment due to physical pain when standing and headaches which cause sensitivity to light and sound. The applicant testified that it is her sensitivity to sound that has reduced her function in social settings. I find her evidence does not support a 40% WPI rating advanced by Dr. Abrams.
48The applicant also testified that she feels guilty that she cannot do what she used to do before the accident and take care of her family. Further she testified that she did not complain to her family doctor about her psychological symptoms because culturally it is not acceptable.
49I have also considered that pre-accident on December 9, 2015, the applicant reported to her family physician that her “mood has been down, low self-esteem, depressive. Feels she is being followed by people watching her”, for which she was given a “psych” referral and a prescription for Amitriptyline. Post accident, on May 18, 2016, the applicant reported stress related to a family situation involving her son. The medical record acknowledges the psych referral that had already been made. I find these medical records of her family physicians contradict her testimony that she did not report her psychological symptoms because of cultural stigmatism.
50I find that in her report, Dr. Abrams attributes all of the applicant’s pain and resulting psychological sequelae to the accident, even though in the document review portion of her report are medical records that document the applicant’s physical symptoms of pain dating back to 2008, related to several different causes. Pre-accident her complaints included fibromyalgia (Body pain and generalized muscle aches) back pain, joint and chest pain, and gynecology-based symptoms. Post accident the applicant was also treated repeatedly for: sinusitis, gynecology-based symptoms, right knee pain, breathing difficulties, left ear pain that radiated to her neck and head. None of which the applicant attributed to the accident when reporting to the physicians.
51I find that the Guides require apportionment for pre-existing conditions, which Dr. Abrams has not considered when assigning her WPI rating of 40%.
52Dr. Jwely testified that the California method used by Dr. Abrams conflates the WPI % and he does not agree with Dr. Abrams’ findings. In order to convert a GAF score to an impairment score, Table 14-10, of the Guides 6th Ed. should be used. If Dr. Abrams’ GAF score of 45 were accepted, it would convert to a 15% GAF Impairment score. In order to reach an impairment score of 40%, as Dr. Abrams provided, it would require a GAF of 11-20. I note that the Guides define a GAF of 11-20 as “Some danger of hurting self or others (e.g., suicide attempts without clear expectation of death, frequently violent, manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute).”
53I find that Dr. Abrams’ WPI rating of the applicant is not reliable due to the method of calculation and evidence does not support that the applicant has a psychological condition as severe as Dr. Abrams purports. Further, Dr. Abrams rated the applicant as having a moderate impairment, not a marked impairment, in the sphere of social function for criterion 8, which I find is not consistent with a GAF of 45.
54Dr. Jwely assigned a 15% WPI rating, or moderate impairment (15-29% - limitations of some but not all social and interpersonal daily living functions) based on Chapter 4, Table 3 of the Guides. Dr. Jwely testified that the applicant was not active with psychotherapy, medications, emergency visits that would support a higher psychological impairment rating. The applicant was polite, cooperative, and gave a good effort during the assessment. The applicant reported that she worked as a baker, an Arabic teacher, and a bookkeeper between 2019 and 2021. Pain was the theme in her reporting of her limitations. Dr. Jwely opined that the applicant was functioning at a high level. When she was working and travelling, her impairment rating would be rated between 0-14%. In spite of her physical limitations, she pushed to be engaged, and reported to Dr. Jwely that she maintains a relationship with her siblings, attends for coffee with friends bi-monthly, attends mosque and has friends into her home, albeit less frequently.
55Dr. Jwely opined that during the assessment, the applicant described signs and symptoms consistent with an Adjustment Disorder with Mixed Anxiety and Depressed Mood and Somatic Symptom Disorder related to the accident. However, her psychological conditions do not result in functional limitations that rise above a 15% WPI rating.
56I accept Dr. Jwely’s 15% WPI rating, which I find is supported by the applicant’s testimony, preponderance of the medical records, and Dr. Jwely’s assessment report.
57Taking into consideration the Criterion 7 Total WPI Combined Values, I find the applicant’s 37% WPI rating does not meet the threshold of a 55% WPI. Therefore, the applicant has not proven on a balance of probabilities that she has suffered a CAT impairment under Criterion 7 of the Schedule as a result of the accident.
Criterion 8
58I find the applicant has not suffered a CAT impairment under Criterion 8 of the Schedule as a result of the accident.
59As the applicant’s accident was in February 2016, in order to meet the threshold for a CAT impairment under Criterion 8, an individual must have sustained one marked (class 4) impairments out of the four spheres of functioning or one extreme (class 5) impairment as a result of the accident due to a mental and behavioural disorder. These impairments are assessed under Chapter 14 of the Guides 4th Ed. 1993. Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides sets out the four spheres of functioning and the levels of impairment as outlined in the chart below.
Sphere 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 (Deterioration in a work-like setting)
60The applicant submits that she was functioning well before the accident. After the accident, while receiving treatment she had improved and was able to return to work. When the respondent denied treatment, her function declined. The applicant relies on the occupational therapist assessment completed by Julian Amchislavsky, occupational therapist, and the psychiatric assessment completed by Dr. Karen Abrams, psychiatrist. The applicant submits that the respondent has erred in considering records back to the date of the accident and beyond. Rather, she submits that only the current records and her present condition should be considered. The applicant submits she has marked impairments in the sphere of Activities of Daily Living, Concentration, Persistence, and Pace, and Adaptation, which meets criterion 8 for a catastrophic impairment determination.
61The respondent submits that prior to the applicant’s CAT assessments in 2023, the applicant did not report any psychological symptoms related to the accident. The applicant’s functional limitations are based solely on pain complaints. The respondent relies on the occupational therapy assessment completed by Jeff Ford, occupational therapist, and the psychiatric assessment of Dr. Ahmed Jwely, psychiatrist. The respondent submits the applicant has mild impairments in spheres of Activities of Daily Living, Social Functioning, Concentration, Persistence, and Pace, and a moderate impairment in the sphere of Adaptation, which does not meet a level of impairment under criterion 8 for a catastrophic impairment determination.
62The parties’ ratings are summarized 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
ADLs
Respondent’s expert
Applicant’s expert
Social Functioning
Respondent’s expert
Applicant’s expert
CPP
Respondent’s expert
Applicant’s expert
Adaptation
Respondent’s expert
Applicant’s expert
63Criterion 8 requires a rating under Chapter 14 of the 4th Ed. of the Guides. Dr. Abrams testified that a GAF of 45 equates to a severe impairment according to Table 3, Chapter 4 of the Guides, “limitation impeding useful action in almost all social and interpersonal daily functions”, and that in her opinion Chapter 4’s definition of a severe impairment is comparative to a Marked impairment under Chapter 14. I note that Chapter 4, Table 3 by definition, considers primarily social and interpersonal daily functions. However, as noted in the chart above, Dr. Abrams rated the applicant to have a moderate impairment in the sphere of social functioning, which I find is inconsistent.
64I do accept Dr. Abrams’ testimony that pain can affect mood, which can result in avoidance behaviours that limit a person’s function. However, the applicant’s physical causes of her functional limitations are not to be considered under Criterion 8. Dr. Abrams has attributed her functional limitations directly to psychological sequelae. However, based on the applicant’s testimony her functional limitations are a direct result of her physical symptoms, as described by herself and the occupational therapy assessors. I find the applicant’s testimony and consistent reporting to assessors regarding her being “moody”, “irritable” “not stable” “frustrated” and “guilty” without functional limitations, does not support Dr. Abrams’ conclusion that the applicant has a mental disorder that significantly impedes her useful function.
65Dr. Abrams opined the applicant’s symptoms are consistent with the DSM-IV/V criteria for somatic symptom disorder with predominant pain persistent; major depressive disorder with anxious distress; and specific phobia: situational type: vehicular. I note that Chapter 14 requires a diagnosis in accordance with the DSM-III-R. I have not heard evidence to explain or compare the DSM-IV/V criteria to the DSM-III-R, and therefore place less weight on the reliance of the diagnosis to support a CAT impairment.
66I note that in his report, Dr. Jwely cites the determination of a criterion 8 CAT impairment to be based on a class 4 impairment in three or more areas of function that precludes useful function, or a class 5 impairment in one or more areas of function that precludes useful functioning, due to mental or behavioural disorders. I note that for accidents after June 2016 this is the correct test. However, this is not the correct test for the case at hand in which the accident occurred before June, 2016. As indicated above, the applicant must have sustained one class 4 impairments out of the four spheres of functioning or one class 5 impairment as a result of the accident due to a mental and behavioural disorder.
67I disagree with the applicant’s submission that only the applicant’s current function should be considered. Chapter 14 of the Guides clearly states that functional limitations resulting from mental disorder(s) should be considered as observed over a period of time, and that a period of years is particularly useful. Proper evaluation of an impairment must take into account variations in the level of functioning with time in arriving at a determination of severity. Thus, it is important to obtain evidence over a sufficiently long period before the date of the examination. It follows that the respondent’s consideration of the applicant’s medical records back to the date of the accident and beyond is appropriate.
Activities of Daily Living (ADLs)
68I find the applicant does not have a marked level of impairment in the sphere of ADLs.
69According to the Guides, the sphere of ADLs includes 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 of 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.
70I heard testimony from the applicant that she did not seek medical attention after the accident, and despite the pain she was feeling, two days after the accident in 2016 she travelled to Palestine with her family for 40 days. She also reported having travelled to Palestine in 2019. The applicant testified that due to pain she is unable to sit, stand or walk for a long time. She stopped doing household chores and cooking, as well as gardening and shopping. She struggles to put on clothes and cannot bend down. She cannot cut her own toenails or brush her hair. Due to her right knee pain, she is unable to walk up or down the stairs without holding onto the railing. Due to her shoulder pain she is unable to carry anything, including her purse. She will drive when necessary.
71I find the applicant’s testimony supports that she is experiencing physical symptoms and that her functional limitations are as a direct result. I did not hear persuasive testimony that she is experiencing psychological symptoms that significantly impedes useful functioning.
72During Dr. Abrams’ testimony, she acknowledged that the applicant’s restrictions are mainly physical. However, she opined that pain affects mood. Also, the applicant’s sleep disturbance is caused by pain, and lack of sleep also affects mood. The applicant had reported to Dr. Abrams that her functional limitations were constant since the accident. However, I find this is not consistent with the In-home assessment of Samantha Anstey, occupational therapist, conducted on May 25, 2017, and the In-home functional assessment conducted by Janna Slevinsky, occupational therapist, report dated April 12, 2023, which both indicate the applicant was more functional on those dates than the applicant reported at the time of Dr. Abrams’ assessment.
73The report of Ms. Anstey indicates the applicant denied having low mood, but categorized it as feeling frustrated. The report of Ms. Slevinsky indicates the applicant reported having challenges with initiation some of the time, and feels frustrated that she is limited by her pain and symptoms.
74Ms. Anstey observed the applicant to be fully independent with her personal care, and able to make simple meals, although not traditional meals that may take up to two hours to prepare. The applicant reported being able to complete indoor housekeeping, but shares the vacuuming, mopping, and bed making with her husband. Her husband does the grocery shopping, and her eldest son does the laundry, takes out the garbage and empties the dishwasher. Ms. Anstey observed the applicant vacuuming during the assessment.
75Ms. Slevinsky observed that the applicant was independent with bed mobility, and all transfers. She was able to sit for 60 minutes with frequent repositioning, able to stand for 30 minutes, had functional balance, ambulated at an average pace, used a reciprocal gait to ascend and descend the stairs, albeit with increased pain. She was able to lift and carry 2.5 - 3 kgs for short distances. She was limited to a half squat due to right knee pain, and uses a chair for prayers. She was able to bend at the hips and could nearly reach the floor. She was able to reach over her head, but noted feeling weak. She was able to use a pen and paper without difficulty, noting weakness in her hands and numbness at the base of her right thumb. Her range of motion was assessed within functional limits for her neck, back, upper and lower extremities. She was able to follow instructions and answer questions appropriately, as well as able to book the assessment via email. Ms. Slevinsky described the applicant as dressed and groomed appropriately. She reported having returned to most personal care activities with increased time and effort. During the day she tidies the house, completes her exercises, washes dishes, and attends scheduled appointments. She teaches two hours in the evening five days per week, and cooks three or four times per week. Since the accident her husband does the primary grocery shopping. She will occasionally accompany him, or will go herself if only a few items are required. She drives approximately three days per week. Ms. Slevinsky determined that the applicant was independent with personal care, with the exception of requiring assistance with shampooing and brushing her hair. No assistance was required for hygiene, or bathroom/bedroom maintenance. No safety concerns were identified with the applicant’s ability to exit the home in case of an emergency. She was independent with managing her medication, and appointments. The applicant did not report any psychological symptoms during the assessment.
76I find this assessment report does not support the applicant has a mental or behavioural condition that significantly impedes her useful functioning. I also find this assessment report supports that the applicant’s impairments are physical in nature.
77Mr. Julian Amchislavsky, occupational therapist, conducted an occupational therapy assessment on January 17, 2024, report dated February 7, 2024. The applicant reported significantly reduced physical capabilities in all physical activities due to pain and required partial assistance for most tasks. She reported independence only in relation to transfers and feeding. She reported fatigue due to lack of sleep resulting from pain. From a psychological perspective, she reported not having the desire to do her personal care, and not excited to begin her day. Mr. Amchislavsky testified that he relied on medical records from 2023 regarding the applicant’s accident-related injuries. The physical symptoms included auditory sensation, and headaches, nausea with vomiting and dizziness. I note that these symptoms became instrumental in the applicant not being able to complete the assessment. The applicant reported cognitive symptoms that included memory, attention and concentration difficulties. I note that this is the first reporting of these symptoms to which I have been directed in evidence. The applicant further reported psychological symptoms of stress and anxiety, as well as driving and passenger anxiety.
78Mr. Amchislavsky testified that his role as an occupational assessor is to report his observations, he is not qualified to comment on causation, and the opinion of impairment is left to the doctors to whom his report is provided. I give Mr. Amchislavsky’s assessment reports less weight, because I find that injected into his report are conclusions that are outside of his scope. For example, Mr. Amchislavsky states “the applicant’s psychological sequelae are a barrier for her.” Further, Mr. Amchislavsky concludes: “Her substantial stress and anxiety, ongoing diagnosed depression, as well as significantly decreased lack of motivation play a primary role in her inability with extended attention and concentration.” As of the date of his assessment, the applicant had not been diagnosed with any psychological condition or sequelae.
79Mr. Amchislavsky also concluded: “With substantial exacerbation of pain symptoms, it is anticipated that she will be entirely disabled from performing detailed step by step instructions due to complete preoccupation with pain symptoms, lack of intrinsic motivation, distractibility and/or fatigue.” Mr. Amchislavsky opines that “It is the professional opinion of the assessing occupational therapist that Ms. Hussein presented with permanent and severe impairments that interfere with her ability to engage in her activities of daily living in any consistency, quality or manner.” However, this opinion appears to be based on her physical limitations. In his closing remarks in the report, Mr. Amchislavsky opines on causation: “Ms. Hussein‘s abilities to perform her pre-injury activities have been further compromised as a result of the subject motor vehicle accident, which occurred on February 26, 2016.” I attribute less weight to this report because several conclusions and opinions are outside of the author’s scope of practice.
80I find the assessment report of Dr. Abrams is not persuasive because the reasons do not support the rating that is being advanced. For ADLs the supporting information is primarily based on physical limitations, and on the conclusions advanced by Mr. Amchislavsky. I find the applicant’s reporting that she is mostly independent with self-care, albeit slower; and the applicant being less motivated to attend to personal hygiene; is not supportive of an impairment level that significantly impedes useful functioning. Further, I find that Dr. Abrams has not considered the degree of the applicant’s functional abilities to communicate and ambulate independently, and that she continues to drive. I acknowledge the applicant has sleep disruptions, reduction in sexual function, social and recreational activities, however, I have not heard persuasive evidence that the applicant’s reduction in functional ability is attributable to a mental disorder, nor that it rises to a level of significantly impeding useful function.
81I do find the In-Home assessment conducted on April 24 and 25, 2025 by Jeff Ford, occupational therapist, report dated September 18, 2025, to be persuasive. The applicant reported receiving assistance from a privately funded Personal Support Worker (PSW) for personal grooming, occasionally showering and dressing, as well as meal preparation and household chores. The applicant’s only reported reason for needing assistance is due to pain. Mr. Ford opined that the reported need for assistance is inconsistent with her observed functional capabilities. I find this In-Home assessment is supported by the 2017 and 2023 occupational therapy assessments of Ms. Anstey and Ms. Slevinsky.
82I also find the assessment report of Dr. Jwely to be persuasive. Dr. Jwely reported that based on his assessment and review of documentation, the applicant reported requiring assistance with bathing, dressing, grooming, and, at times, toileting, citing low energy, low motivation, and physical discomfort as contributing factors. Despite these reported difficulties, she is able to eat independently and attempts to maintain a daily walking routine of approximately 30 minutes, either at home or outside. She also reported the ability to drive, when necessary, particularly in emergency situations. While she described a reduction in her level of activity, she reported continued engagement in basic daily routines, indicating remaining positive function in this domain. He opined that from a psychiatric perspective, there is no more than a Mild (Class 2) impairment secondary to mental and behavioural disorders directly attributable to her index motor vehicle accident.
83I accept Dr. Jwely’s rating of a mild impairment in ADLs.
Social Functioning
84I find the applicant does not have a marked level of impairment in the sphere of social functioning.
85According to the Guides, the sphere of social functioning includes 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.
86The applicant testified that because of her sensitivity to noise, she is unable to be around people. She gets annoyed because of the noise. I did not hear testimony that the applicant has experienced altercations, or demonstrated inappropriate behaviour. I accept that she limits her social activities, but am not persuaded that she has functional limitations that rise to a marked impairment.
87I note that Dr. Abrams rated the applicant as having a moderate impairment, and Dr. Jwely rated her as having a mild impairment.
88I accept the assessors’ ratings that the applicant does not have a marked impairment in the sphere of social functioning.
Concentration, Persistence, and Pace (CPP)
89I find the applicant does not have a marked level of impairment in the sphere of CPP.
90According to the Guides, the sphere of concentration, persistence and pace considers these abilities as 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 setting. 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.
91I have considered the In-home functional assessment of Janna Slevinsky, which reports the results of a Dysexecutive Questionnaire of 24/80, suggestive of the presence of some symptoms of decreased executive functioning. The applicant reported that she occasionally feels nervous while driving. She drives mostly in the Barrhaven area and drives approximately three days per week. She manages her finances using online banking. I find this supports the applicant having some but not all useful functioning.
92Mr. Julian Amchislavsky reported that due to changes in auditory sensation, headaches, nausea with vomiting and dizziness, and upper body pain she has decreased memory, attention and concentration. I note that these cognitive limitations are due to physical causes, not psychological.
93The applicant reported to Mr. Ford that the reason she could not continue as a bookkeeper is that she could not focus and concentrate due to the bright light, which gave her headaches. The applicant reported using a medication dosette to manage her medications, along with an alarm on her cell phone and reminders from her children.
94The applicant described to Mr. Ford the reason she is driving less than before the accident is due to pain in her back and neck, also the concentration and focus can trigger headaches. The applicant did not refer to anxiety or fear when driving, it was mentioned when she is a passenger in a vehicle. During the assessment, the applicant was able to recall information and follow instructions. The assessment was stopped at the applicant’s request due to pain and dizziness. Again, I note these are physical causes, not psychological.
95Chapter 14 of the Guides directs that standardized testing requires concentration, persistence, and pacing, thus observing the applicant during the testing process may provide useful information. I find that Dr. Abrams’ observations during the standardized testing does not support the applicant having significant impediment to her useful functioning. Dr. Abrams noted that the applicant appeared to understand instructions and psychometric questionnaires without clarification of terms. She was well motivated to participate in the evaluation, and the embedded validity measures suggested her full engagement in the assessment process. I have not been directed to evidence that suggests the applicant was unable to complete the psychometric testing, required a high number of breaks, or that she took longer than expected to complete it. I also note that the assessment was completed virtually, and required significant time in front of a computer screen, which she testified triggers her headaches. Dr. Abrams relied on the assessment report of Mr. Amchislavsky, which again, I find is not persuasive because it is primarily the applicant’s physical symptoms that interfere with her functional ability, not her psychological symptoms.
96I find the report and testimony of Dr. Jwely is persuasive. Dr. Jwely reported that his assessment and review of documentation, the applicant reported experiencing difficulty with memory, concentration, and learning new information. However, during the mental status examination, she was observed to have intact short-term and long-term memory, normal concentration, and logical, goal-directed thought processes. There were no signs of confusion or disorientation, and her insight and judgment were assessed as fair. Ms. Hussein demonstrated the ability to sustain focused attention throughout the evaluation and was cooperative and calm. She was able to work as a chef and Arabic teacher after the accident (2019–2021), indicating the ability to sustain work activity, at least for a period, despite her symptoms. She reported that her motivation to return to work is to regain good health and resume teaching or baking, demonstrating ongoing goal orientation and persistence. Therefore, in the area of concentration, persistence and pace, he opined, from a psychiatric perspective, there is no more than Mild (class 2) impairment secondary to mental and behavioural disorders directly attributable to her index motor vehicle accident.
97I accept Dr. Jwely’s rating of a mild impairment in the sphere of CPP.
Adaptation
98I find the applicant does not have a marked level of impairment in the sphere of adaptation.
99According to the Guides, the sphere of Adaptation considers 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.
100The applicant testified that she returned to work as a baker, but stopped because the physical demands were too great. She did teach Arabic, but she had to stop because the noise of the children, and the lights caused her headaches. The applicant had attempted employment doing bookkeeping for a restaurant, but stopped because she was forgetful.
101The income tax records indicate the applicant did not claim any income between 2015 and 2018. In 2019 the T4 income is reported as $10,000.00, with CPP contributions. In 2020 the T4 income is reported as $5,350.00, with CPP contributions, and other income reported as $12,000.00. In 2021, the T4 income is reported as $1,562.00 with CPP contributions, and other income in the amount of $7,000.00. In 2022 the T4 income is reported as $150.00, Business income reported as $8,000.00 with CPP contributions. In 2023 and 2024 the applicant reported no income. I find this income supports the applicant’s testimony that since the accident she has worked as an Arabic language teacher, a part-time baker, and a bookkeeper. I find this evidence supports the applicant was working more three years post-accident than she had previously.
102I find Dr. Abrams’ report is not persuasive because she concluded that the applicant’s limitations are based on emotional factors, which does not correlate with the applicant’s own testimony. Also, Dr. Abrams concluded that the applicant would likely be unable to maintain the physical demands or time constraints in a fast-paced work environment, and that prolonged standing and sitting reportedly aggravates her chronic pain disorder and other psychological conditions. Even though the applicant had been working between 2019 and 2022, Dr. Abrams opined the applicant’s impairments have been continuous since the accident.
103The applicant reported to Mr. Ford that she could not continue as a bookkeeper because she could not focus and concentrate due to the bright light, which gave her headaches. She was also not able to continue teaching because the sound of the students was annoying her. The applicant reported her primary limiting factor as pain.
104Dr. Jwely reported that based on his assessment and review of documentation, Ms. Hussein reported experiencing difficulties in adapting to work-related stressors. Despite these limitations, she remains motivated to return to work and pursue her hobbies, demonstrating a continued desire to adapt and function. Ms. Hussein maintained employment capacity post-accident, working as both a chef and Arabic teacher from 2019-2021. This represents a significant period of sustained occupational functioning lasting 2-3 years following the accident, indicating preserved work-related cognitive and social skills. She transitioned from full-time to part-time work and eventually left her job to better manage her health and family responsibilities, showing adaptability in response to changing circumstances. During the evaluation, she appeared calm, cooperative, and oriented, with intact cognition and logical thought processes. While she has difficulty managing work stressors, Ms. Hussein retains the ability to function in less demanding or more structured environments, indicating preserved positive function in this domain. As such, in the area of adaptation, he opined, from a psychiatric perspective, there is no more than Moderate (class 3) impairment.
105I accept Dr. Jwely’s rating of a moderate impairment in the sphere of adaptation which is persuasive because of her preserved work motivation and transitional adjustments.
106I find the applicant has not proven on a balance of probabilities that she has suffered a CAT impairment under Criterion 8 of the Schedule as a result of the accident.
Attendant Care Benefit (ACB)
107I find the applicant is not entitled to $510.45 per month from July 27, 2023 to present for ACBs.
108Section 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 provided by an aide or attendant. The amount of a monthly ACB is determined in accordance with the approved version of the document entitled Assessment of Attendant Care Needs (“Form 1”) that is required to be submitted under s. 42. The maximum payable for ACB under the Schedule is $3,000.00 per month for non-catastrophically impaired insured persons, and $6,000.00 per month for catastrophically impaired insured persons. If the insured person is not catastrophically impaired the maximum amount payable for any one accident is $36,000.00. Section 20(2) limits the duration of ACB to 104 weeks after the accident, without optional benefits.
109The applicant submits the applicant is entitled to $510.45 per month for ACB in accordance with the Form-1 completed by Janna Slevinsky on April 6, 2023.
110In considering the accident occurred on February 26, 2016, the 104-week period ended on February 23, 2018 and there is no indication that the applicant purchased optional benefits as part of her policy.
111I find that the applicant is not entitled to ACB from July 27, 2023 and ongoing because she is not catastrophically impaired.
112To 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.
113As for an assessment, by their nature, assessments are speculative. They are conducted to determine if an applicant has a specific condition or meets a specific threshold. There is a possibility that the assessment will prove negative. Nonetheless, there must be some evidence that the specified condition exists that warrants further investigation by way of an assessment.
Occupational Therapy Services
114I find the applicant is not entitled to $1,796.02 for occupational therapy services, proposed by Functionability Rehabilitation Services LP, in a plan submitted on August 1, 2023.
115I have reviewed the treatment plan, which is for an occupational therapy in-home assessment to evaluate the applicant’s safety as well as their physical, psychosocial, and cognitive function. Function in self care, productivity and leisure are to be assessed, as well as completion of a Form 1.
116I did not hear submissions from the applicant as to why this treatment plan is reasonable and necessary.
117The respondent submits that ACB is not available post 104-weeks unless the applicant is determined to be CAT. Also, the treatment plan was denied on August 25, 2023 based on the In-home assessment dated May 25, 2017, which indicated the applicant was able to complete her personal care and housekeeping without assistance. Further, a physiatry assessment dated June 24, 2017, indicated the applicant was able to perform the assessment unassisted, without functional difficulty.
118I note that on Part 6 of the plan, radiculopathy is listed as an injury/sequelae. However, I have not been directed to any medical records in evidence that support this information.
119I have considered the clinical notes and records of Dr. Vanessa Doyle, neurologist, who assessed the applicant on June 13, 2023, on referral from her family physician due to complaints of headaches. These are medical records that I have been directed to in the course of the hearing, and which are closest in time to the treatment plan. Although the focus of the assessment is the applicant’s headaches, Dr. Doyle notes in her consultation that the applicant does not experience visual changes, speech/language disturbance, numbness, tingling, weakness, or difficulty with ambulation. I find Dr. Doyle’s records do not support that the applicant was experiencing concerns with her safety, or physical, psychosocial, cognitive function limitations. I have not been directed to contemporaneous medical records that support an assessment was reasonable and necessary.
120Further, I find the cost of the treatment plan is not reasonable. The plan includes: 1.5 hours of travel time for the provider at a cost of $149.63; 8 hours of documentation at a cost of $798.00; and a 2-hour brokerage service at a cost of $199.50. I find that these amounts are not covered under the Schedule. The actual proposed assessment is 1.5 hours at a cost of $149.63, and form completion fee of $200.00.
121I find the applicant has not proven on a balance of probabilities that the treatment plan is reasonable and necessary.
Physiotherapy Services
122I find the applicant is not entitled to $3,807.66 for physiotherapy services, proposed by South Keys Health Inc., in a plan submitted on May 16, 2024.
123I have reviewed the treatment plan which indicates the goals are to reduce pain, increase range of motion, increase strength, return to activities of normal living, return to pre-accident work activities, participate in household and personal care activities. The proposed cost of treatment includes $200.00 for documentation, 14 one-hour sessions of therapy to multiple body sites at a rate of $99.75 per hour totalling $1,396.50; 14 one-hour sessions of exercise of multiple body sites at a rate of $99.75 per hour totalling $1,396.50; 14 one-hour sessions of massage of multiple body sites at a rate of $58.19 per hour totalling $814.66. The overall cost of the treatment plan is $3,807.66.
124The applicant submits that the family doctor recommended therapy, and the assessors agree that the applicant has reached maximum medical improvement. The applicant relied on a consultation letter of Dr. Mohammed Khodabandehloo, who saw the applicant regarding her right knee pain on November 24, 2024. Dr. Khodabandehloo recommended anti-inflammatory medication, physiotherapy, and massage therapy.
125The respondent relies on the Insurer’s Examination assessment of Dr. Gaurav Gupta, physiatrist, who opined the treatment plan was reasonable, but not necessary.
126In his report, Dr. Gupta concluded that the treatment plan reflects the standard of care and general costs for these conditions and respective treatments. The goal of these types of treatment is to facilitate recovery with symptom management and rehabilitation post-injury to optimize function, which is considered a legitimate medical and rehabilitative goal.
127Dr. Gupta testified that the applicant reported short temporary relief of approximately one day following her treatment. He opined the applicant has reached maximum medical improvement (MMI) and that physiotherapy, and occupational therapy would continue to provide only temporary relief. For the purpose of achieving temporary relief the treatment plan was reasonable. However, these treatments are not necessary because there are alternative treatments available that would likely provide the applicant more lasting relief. He recommended: to continue her home exercise program three to five times per week to improve pain and activity tolerance; to stop over-the-counter pain medication for three to six months to determine if current headaches are secondary to overuse; to titrate Topiramate based on benefits and side effects, with the dose range being between 25-100 mg twice per day to improve pain and activity tolerance; and a trial of image-guided spinal injections to improve pain and activity tolerance. If effective, these can be provided between one to four times per year as required.
128I have considered Dr. Khodabandehloo recommendation for therapy, however, I also considered that the doctor had aspirated the right knee and injected cortisone and lidocaine. The applicant reported “this improved her symptoms significantly and she has minimal discomfort”. I find this is supportive of alternative treatments being more effective than physical therapy, which the applicant reported gave her little relief for a short period of time.
129I am persuaded by Dr. Gupta’s opinion that the treatment plan is reasonable in its goals, but not a necessary treatment, because the applicant can achieve greater relief with alternative treatments. Further, I find that the overall cost of the treatment plan is not reasonable because the relief gained is short-lived.
130I find the applicant has not proven on a balance of probabilities that the treatment plan for physiotherapy is reasonable and necessary.
OCF-6
131I find the applicant is entitled to $83.34 for Topiramate, prescribed medication, submitted on a claim form (OCF-6) dated November 4, 2024. The balance of $266.85 is not payable.
132Section 15(1) of the Schedule, requires the respondent to pay for all reasonable and necessary expensed incurred by or on behalf of the insured person as a result of the accident. This includes medication. 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.
133The applicant submits that the Insurer’s Examination assessor recommended medication, yet the medication is being denied. In support of her claim, the applicant directed me to the OCF-6, the denial letter dated February 11, 2025, and the family physician clinic records.
134The respondent submits that the OCF-6 was received on January 21, 2025. A request for copies of the supporting records was made, however, they were not received. Therefore, the denial was proper, and the applicant has not met her burden of proof.
135The experts agree that the applicant experiences headaches, at least partially, as a result of the accident, however, the assessors do not prescribe medication.
136Through the course of the hearing, I have been directed to records that indicate the applicant was taking prescribed medication before and after the accident. This included a prescription for Topiramate, which at some point replaced Amitriptyline. Dr. Doyle and Dr. Dost concurred that Topiramate was an acceptable treatment for the applicant’s headaches. I find the prescription of Topiramate is being used to treat the applicant’s headaches, which Dr. Dost attributed to the accident in his 10% WPI rating.
137As noted at paragraph 48 above, the applicant has been treated for a variety of medical conditions with associated pain symptoms. I have not been directed to records that clearly indicate that the Pregabalin and Naproxen prescriptions are related to the injuries suffered in the accident. I have also not been directed to evidence of who recommended, or why, the ”cupping and myofascial release”, Ibuprofen, Advil, Super Sleep, and HB Complete that were incurred.
138I find the applicant has proven on a balance of probabilities that the expenses submitted on the OCF-6 for Topiramate were reasonable and necessary, as a result of the accident.
139I find the applicant has not proven on a balance of probabilities that the remaining expenses submitted on the OCF-6 were reasonable and necessary as a result of the accident.
Interest
140Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
141I find the applicant is entitled to interest on the expense of Topiramate.
ORDER
142For the reasons stated above, I find:
The applicant has not sustained a catastrophic impairment as defined by the Schedule.
The applicant is not entitled to attendant care benefits.
The applicant is not entitled to $1,796.02 for occupational therapy services, proposed by Functionability Rehabilitation Services LP, in a treatment plan/OCF-18 (“plan”) submitted on August 1, 2023.
The applicant is not entitled to $3,807.66 for physiotherapy services, proposed by South Keys Health Inc., in a plan submitted on May 16, 2024.
The applicant is entitled to $83.34 for Topiramate, prescribed medication, submitted on a claim form (OCF-6) dated November 4, 2024. The balance of $266.85 is not payable.
The applicant is entitled to interest on any overdue payment of benefits.
Released: January 27, 2026
__________________________
Tami Cogan
Adjudicator
