LAT Hearing and PsycIME — October 29, 2021

Tribunals Ontario

Licence Appeal Tribunal




Tribunaux décisionnels Ontario

Tribunal d’appel en matière de permis


Citation: Powell v. Aviva Insurance Company of Canada, 2022 ONLAT 19- 012928/AABS

Licence Appeal Tribunal File Number: 19-012928/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.


Jayne Powell



Aviva Insurance Company of Canada





For the Applicant: Roger R. Foisy, Counsel

Harpreet S. Sidhu, Counsel

Daniel Berman, Counsel

Rusald Laloshi, Paralegal

For the Respondent: Suzanne Clarke, Counsel

HEARD: By videoconference October 18 to 29, 2021 followed  by written submissions




[1] The applicant was involved in an automobile accident on February 19, 2015, and  sought benefits pursuant to the Statutory Accident Benefits Schedule Effective  September 1, 2010 [“Schedule”].1 The applicant was denied certain benefits by  the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service [“Tribunal”].


[2] The issues to be decided are:

  1. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
  2. Is the applicant entitled to attendant care benefits of $644.63 per month from February 19, 2015, and ongoing?
  3. Is the applicant entitled to medical benefits of $2,763.50 for occupational therapy services?
  4. Is the applicant entitled to medical benefits of $2,593.89 for occupational therapy services?
  5. Is the applicant entitled to medical benefits of $2,505.43 for rehabilitation support services?
  6. Is the applicant entitled to medical benefits of $5,935.00 for vision therapy?
  7. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
  8. Is the applicant entitled to interest on any overdue payment of benefits? RESULT

[3] The applicant has sustained a catastrophic impairment as defined by the  Schedule. She sustained a marked impairment (Class 4) in Adaptation.

1 O. Reg. 34/10.



[4] The applicant is entitled to attendant care benefits at the rate of $644.63 per  month from the date the first Form 1 was submitted, subject to the benefits being  properly incurred in accordance with section 3(7)(e) of the Schedule.

[5] The applicant is entitled to $2,593.89 for occupational therapy (professional  organizing services) and $5,935.00 for vision therapy.

[6] She is not entitled to $2,763.50 for aquatherapy sessions with an occupational  therapist or $2,505.43 for aquatherapy sessions with a rehabilitation support  worker.

[7] The applicant is entitled to interest on denied benefits, payable in accordance  with the Schedule. The respondent is not liable to pay an award pursuant to  Regulation 664.



[8] The applicant was single with no dependents and lived alone in an apartment  above the garage of a detached home. She has a post-secondary degree in  French, a diploma in early childhood education and a master’s degree in  education. The applicant was employed full time for six years, and at the time of  the accident was teaching a grade 3/4 split class in French immersion. She also  ran different clubs/after school programs.

[9] In her youth, the applicant was a competitive synchronized swimmer and played  rugby. Prior to the accident, she was a volunteer coach for a local swim team.  She had an active social life and had good relationships with friends and family  and would host them in her home. She travelled internationally. She was very  organized and worked with colleagues to prepare lesson plans.

[10] Prior to the accident, she dated but was on “hiatus” after a messy breakup, so  she did not have any serious romantic relationships.

[11] The applicant’s medical history reveals that she had issues with her left knee and  had arthroscopic surgery in 2011. Knee issues arose again in 2013 and 2014,  when she underwent further arthroscopic surgery.

[12] The applicant also experienced a period of depression in 2008 following her  brother’s suicide and sought counselling. A consult note with a psychiatrist in  March 2011 indicates that she did not have a major depressive disorder or  anxiety disorder, but that her issues were related to family dynamics.



Psychotherapy but not pharmacotherapy was recommended. The applicant had  issues with anxiety at work in 2010 and was prescribed medication. Another  entry in the clinical notes and records in June 2014 notes that she had  depression but was feeling better since starting medication again.

The Accident

[13] The accident occurred on February 19, 2015 when the applicant was driving to  work. She was stopped at a red light, waiting to make a right turn, when she was  rear-ended. The applicant was driving a relatively small car, a Mazda 3, and is  quite a tall woman at 6’2”. She struck her head on the roof of the car upon  impact. The applicant drove to work but was feeling unwell and was taken to  hospital by a co-worker.


[14] An Emergency Department Triage Assessment noted Ms. Powell presented to  the emergency room with symptoms of feeling dizzy initially, feeling fuzzy, pain  on the top of her head, and pain in the left side of her neck which radiated to her  left shoulder. She was examined by the emergency room physician and  discharged with a diagnosis of whiplash.

[15] The applicant presented to Dr. Sohi, her family physician, approximately five  days following the accident. A note dated February 24, 2015 indicates that Ms.  Powell presented with complaints of ongoing headache, nausea, reduced focus,  fatigue, and difficulty with mental processing and word finding. She also reported  neck to upper back and shoulder aches. Ms. Powell was examined and  diagnosed with a concussion. She was referred for cervical spine x-rays, which  were negative for acute injuries or fractures. The applicant was referred to a  concussion clinic by her family physician, but the applicant elected to discontinue  treatment after a month because it was similar to that she received with her  physiotherapist.

[16] In April 2015, the applicant sought psychological treatment with Dr. MacDonald,  who diagnosed the applicant with an adjustment disorder with anxiety, major  depressive disorder, and specific phobia (in-vehicle passenger).

[17] In July 2015, the applicant underwent a s. 44 neuropsychological assessment  with Dr. Syed.2 Dr. Syed diagnosed the applicant with a major depressive

2 Exhibit 1 page 2446.




episode and adjustment disorder with anxiety as a result of the accident. Dr.  Syed recommended counselling.

[18] The applicant’s family doctor referred her to a psychiatrist. A consultation report  prepared by Dr. Philips in November 2015 diagnoses the applicant with post traumatic stress disorder and major depressive episode with feature of anxiety.  He concurred with Dr. Rosenfeld’s prescription medication and to continue  psychological counselling to manage her anxiety and improve her mood and  behaviour avoidance.


Catastrophic Impairment

[19] Pursuant to section 3(2)(f) of the Schedule, an impairment is catastrophic if, in  accordance with the American Medical Associations Guides to the Evaluation of  Permanent Impairment, 4th edition, 1993 (“Guides”), results in a class 4 (marked)  impairment or a class 5 (extreme) impairment due to mental or behavioural  disorder.

[20] Per chapter 14 of the Guides, there are four domains of functioning that are  considered in evaluating mental or behavioural impairment. The applicant bears  the onus to prove, on a balance of probabilities, that as a result of the accident  she sustained a marked or extreme impairment in one of the domains.

[21] Impairments are classified according to how seriously they affect a person’s  useful daily function in four broad, overlapping, activity categories, or “domains”  using word descriptions in a five-category scale that ranges from no impairment  to extreme impairment. It is not the category label that has to be assessed, but  rather the language in the descriptions. Each of the four domains of functioning,  classes of impairment, and rating criteria are set out in the following table from  Chapter 14 of the Guides3:

Area or 

aspect of 


Class 1: 



Class 2: 



Class 3: 

Moderate  Impairment

Class 4: 



Class 5: 




3 Guides page 301.


Activities of  Daily Living No

impairment  is noted

Impairment  levels are

compatible  with most



Impairment  levels are

compatible  with some,  but not all,  useful


Impairment  levels

significantly  impede



Impairment  levels 






Concentratio n




Catastrophic Impairment 

[22] The parties initially assessed the applicant for catastrophic impairment under  both Criteria 7 and 8 but conceded that her injuries did not meet the threshold of  55% whole person impairment for Criteria 7. The applicant proceeded to the  hearing on Criteria 8 only.

[23] The applicant submits that she sustained a marked impairment in two domains:  (1) Social Functioning; and (2) Adaptation. The applicant submitted an OCF-19  Application for Determination of Catastrophic Impairment completed by her family  physician in April 2019. The severity of her mental and behavioural impairments  has been assessed by medical specialists for both sides.

[24] The applicant was first assessed by her own assessors from Canadian Medical  Assessment Centre (“CMAC”). Ms. Naumann completed in-home and situationaloccupational therapy assessments in October 2018. Dr. Solomon

(neuropsychologist) assessed the applicant in November 2018 and provided a  psychological/neurocognitive assessment report. She diagnosed the applicant  with a Major Depressive Disorder, Generalized Anxiety Disorder, Somatic  Symptom Disorder, and Post-Traumatic Stress Disorder (residual). Associated  with the foregoing, along with the ongoing post-concussion symptoms, Dr.  Solomon diagnosed a Mild Neurocognitive Disorder. Dr. Solomon considered causation, acknowledging that the applicant had suffered from PTSD and  depression prior to the accident due to her brother’s suicide, but referred to the  psychiatrist’s note in March 2011 that “she did not have any current symptoms of


a major depressive disorder or a generalized anxiety state. Her problems are  related to her pathological family”. Dr. Solomon attributed the current diagnoses  to the subject accident and its sequelae.


[25] The applicant underwent catastrophic assessments in June 2019 on behalf of the  respondent with CanAssess (reports dated September 16, 2019).

[26] Dr. Zakzanis completed the neurocognitive behavioural assessment in July 2019.  He concluded that her scores on the performance and validity measures were in  the normal range, indicating the assessment was valid, and there was no  evidence of feigning of cognitive impairment. Dr. Zakzanis opined that the  applicant was functioning below her premorbid intellectual and cognitive abilities.  However, he did not diagnose a neurocognitive disorder, and opined that it was  improbable that she had sustained a mild traumatic brain injury. However, Dr.  Zakzanis was careful to emphasize that he did not discount her accident-related  cognitive impairment; rather, that it was more probably related to her pain,  headache/migraine symptomatology, susceptibility to fatigue, and psychological  symptomatology, exacerbated by a second accident that occurred in December  2018.

[27] Two occupational therapy assessments (in-home and situational community)  were completed by Ms. Tandon. Dr. Ali prepared a psychiatry assessment, in  which she diagnosed the applicant with a Somatic Symptom Disorder and Post Traumatic Stress Disorder (with partial improvement, not currently meeting full  criteria for diagnosis).

[28] The applicant subsequently underwent further catastrophic assessments with  CMAC, including a second situational assessment with Ms. Nauman, and a  psychiatry assessment, this time with Dr. Patel. He diagnosed the applicant with Major Depressive Disorder with Anxious Distress, Somatic Symptom Disorder  with Predominant Pain, and Specific Phobia (vehicular).

[29] Both the respondent’s and the applicant’s experts agree that the applicant  suffered a psychological impairment as a result of the accident. Having  considered the totality of the evidence before me, I am satisfied that the applicant  suffered a mental or behavioural disorder as a direct result of the accident.



[30] The assessors assigned the following impairment ratings:



Dr. Ali


Dr. Solomon


Dr. Patel

Activities of Daily  Living Moderate


(Class 3)

Moderate to

Marked (Class 3 to  4)



(Class 3)

Social Functioning Moderate


(Class 3)



(Class 4)



(Class 3)


Persistence, and  Pace



(Class 3)


Impairment (Class  3)



(Class 3)

Adaptation Moderate


(Class 3)

Moderate to

Marked (Class 3 to  4)



(Class 4)



Impact of Impairments

[31] The respondent submits that the applicant exaggerates her level of impairment,  noting that while she usually went with her mother or her rehabilitation support  worker (RSW) to the grocery store, she could go alone if absolutely necessary,  and that she demonstrated the ability to complete the occupational therapist’s  (OT’s) situational task in an unfamiliar mall without complaint. The respondent  points out that the applicant was able to take at least three trips after the  accident: travelling to Edmonton for a wedding with her family, to Florida with her  mother, and to visit a friend in Mexico. She has been denied twice of long-term  disability (LTD) benefits and has never received any written negative  performance reviews. The respondent concedes that she has some impairments,  but she has been able to return to work at a minimum of part time and was able  to increase her income after the accident.


[32] The applicant’s ability to work fluctuated over time. The pattern that emerged was  that the applicant was able to resume work only on a limited basis with significant  support for a limited period of time, and at the expense of all of her other  activities of daily living. She would repeatedly push herself to increase her hours  and job duties before regressing and having to take time off again.

[33] The applicant experienced a progressive decline in her ability to maintain her  pre-accident independence in all areas of daily living, evidenced by the state of  her home, such as clutter and garbage scattered throughout, stacks of boxes,  and cat feces noted by the occupational therapist. She demonstrated significant  decline in her hygiene and healthy eating habits. She struggled to shower,  exercise, engage in meaningful activities, or prepare a healthy meal, due to the  low levels of motivation, initiation, and energy associated with her psychological  impairments. The applicant reported that she showered once a week, no longer  wore makeup, rarely dressed up, did not attempt to eat healthy and did not  exercise. Her mother would come over and encourage her to get dressed. She  relied on her mother and sister to help with her daily activities and

housecleaning. The applicant moved in with her mother several times post accident, as she was unable to go to work and complete her activities of daily  living. The applicant described a lack of interest in dating since the accident due  to her lack of motivation or desire to engage in conversation. She stopped  coaching synchronized swimming. She no longer participated in any clubs or  afterschool activities.

[34] The applicant’s first attempt to return to work was about four months post accident, about three weeks before the end of the 2014-2015 school year.4 She  was off on summer break and attempted to go back to work on a modified  schedule in fall 2015. The applicant worked part-time in the fall of 2015, working  five half-days per week.

[35] During one of her sessions with Dr. MacDonald on February 4, 2016, the  applicant reported that she had increased work to full-time Mondays,  Wednesdays and Fridays but she found this to be very tiring. She told Dr.  MacDonald that while she enjoyed her work, it was also overwhelming, with  increased stress leading to increased irritability. The applicant reported struggling  with report cards and had difficulties working on a computer, requiring extra effort  to complete this task. She reported that over the winter holidays, she felt better  but was also feeling increased pressure with teaching because people were  wondering why she hadn’t returned to full-time work yet. She booked a trip to  Florida along with her mother during the March Break of 2016 because she had

4 Exhibit 1 page 2971 to 2973.




seen the Christmas holidays’ positive effects on her. The applicant testified that  she travelled to Florida with her mother and stayed with her mother’s friends in a retirement village. They did little activity, apart from some walks on the beach  and floating in the pool. The applicant testified that her mother planned the trip. It  did help boost her mood.

[36] In order to continue teaching, she required modifications including turning off the  lights as she could not tolerate fluorescent lighting, wearing earplugs during  assemblies due to noise sensitivity, assistance from her mother and colleagues  in setting up the classroom. She had difficulty focusing, multi-tasking and processing new information.

[37] During her next counselling session in March 2016, the applicant reported  increased workplace stress, and having let things go in her home, requiring  increased support from her mother. She reported difficulties managing her stress  load at work, leading to panic attacks. She felt unsupported at work and hoped to  transfer to a new position.

[38] The applicant started the new school year in 2016. By November 2016, the  applicant was reporting difficulty managing full-time work due to decreased  energy and motivation, and increased stress, depression and fatigue.5 By  December 2016, the applicant requested a reduction to her work hours.

[39] Beginning in January 2017, the applicant reduced her hours to four days a week,  taking Wednesdays off for rest and medical treatment. The reduced hours and  accommodations allowed her to finish the school year. She experienced  improvement during the summer break but recognized that she could no longer  continue teaching a split class the next year and sought other opportunities. Dr.  MacDonald completed a medical workplace accommodation for a single grade  class, and the occupational therapist, Ms. Chera, recommended an ergonomic  workstation.

[40] In September 2017, the applicant began teaching full time in a Grade 5 class.  Despite accommodations, by January 2018 the applicant reported to her family  doctor that she experienced increased stress, felt overwhelmed, was tearful and  had poor focus. Her family doctor increased her medication dosage, and they  again discussed a leave of absence.6

[41] The applicant saw Dr. MacDonald in January 2018 and reported that she was  struggling with the demands from work. She was so tired at the end of the day

5 Exhibit 1 page 1289.

6 Exhibit 1 page 1225.




that she went home and slept. Her mood had begun to decline in October 2017 and was worse by Christmas. On her family doctor’s advice, in February 2018, the applicant started taking Tuesday and Thursday afternoons off, which gave

her more time to participate in rehabilitation. Her mood continued to worsen, and  she was unable to complete the school year, stopping on June 13, 2018.

[42] She again recovered over the summer during the break from work and prepared  for a new role, teaching children with special needs in fall 2018. The applicant  had trouble adjusting to the new role. She felt stressed, and her decline began  again in October. She reached out to the principal for help, fearing burn-out. She  reported feeling angry, frustrated and helpless. In December 2018, the family  doctor completed a medical leave form, recommending that she remain off work  for three months due to a major depressive episode.

[43] By the end of 2018, the applicant had reportedly accumulated significant debt  from paying for treatment, and she had developed impulsive buying habits. She  regularly bought new clothes instead of doing her laundry or buying new items  she could not find in her home. She filed a consumer proposal.

[44] The applicant was also involved in another accident on December 19, 2018,  which exacerbated her physical and mental health conditions. The applicant was  off work for the remainder of the 2018-2019 school year.

[45] As with her previous times off, the applicant experienced an improvement in her  mood and depressive symptoms. It was during this period, in the summer of  2019, that the applicant underwent the respondent’s catastrophic assessments.

[46] The applicant attempted a gradual return to work in September 2019, starting  with half-days, three days a week. She was also provided with a teacher’s aide at  school. The applicant also moved in with her mother in September 2019 to  receive support with her daily activities. She increased her work to half-days, five  days a week, and by January, the pattern repeated itself. She felt exhausted and  stressed again. The pandemic hit in March 2020 and the applicant was switched  to remote learning. This was actually beneficial for her as it allowed her to work  from home, keeping the lights dim, and was actually less for work for her.  Essentially, she would assign work to her students, and lay on the couch and rest  unless a parent reached out for help. She was able to increase her hours  because it was actually less work. While she had been pushing for years to  continue working with modifications, multiple medical leaves, assistance from the  school, and support from her treatment team, the applicant testified that she was  not able to return to work in September 2020.



Catastrophic Assessments

[47] The final step in assessing the effect of the mental or behavioural disorder on the  applicant’s life is to determine the severity of the impairment in each of the four  spheres according to the criteria set out in the Guides. Given that the dispute  involves only two spheres, I have limited my analysis to social functioning and  adaptation.

[48] Overall, I preferred the evidence of Dr. Patel. His assessment was more  thorough, and more accurately reflected the applicant’s abilities in accordance  with the Guides.

[49] In my view, Dr. Ali made a critical error, repeatedly stating in her testimony that  because the applicant was not precluded from useful functioning (class 5), she  had a class 3 impairment or moderate impairment. In other words, Dr. Ali’s evidence suggests that a person who is not precluded from useful functioning  (class 5) must necessarily mean he or she is moderately impaired (class 3) or  better; however, such evidence fails to account for a marked impairment (class  4).

[50] Furthermore, at the time of Dr. Ali’s assessment in June 2019, Dr. Ali reviewed  the records provided by the insurer which only went up to May 2018. This was  despite the fact that additional medical records had been provided by the  applicant on March 7, 2019. However, these additional records were never  provided to Dr. Ali, nor was an addendum sought. Dr. Ali was also incorrect in  her conclusion that the applicant did not gain any weight since the accident. She  had in fact gained 60 pounds post-accident, which was available in the records  provided.7 Dr. Ali also concluded that the applicant’s cognitive complaints were  not credible, despite the conclusion of her colleague, Dr. Zakzanis, as well as Dr.  MacDonald and Dr. Solomon who all found that there were no validity concerns,  and that the applicant had cognitive impairments.

[51] Dr. Ali had did not review the surveillance with the applicant. The respondent’s  investigators conducted surveillance on a weekend and filmed her picking up  dropped papers and appearing to enjoy lunch with a friend. I did not find this  surveillance compelling. In context, the applicant was at a mindfulness course  trying to learn to look at life as a “glass half full”. People can have good days and  bad. Dr. Ali didn’t review the surveillance with the applicant and therefore lacked  the context of what she was viewing.

7 Exhibit 3 Tab 4C and D.



[52] Further surveillance of the applicant captured her sitting outside her home in a  coat and hat. The version provided to Dr. Ali had no date or time stamp. Dr. Ali  concludes that there is no indication of emotional distress, and she was  presenting normally. In my view, there is nothing particularly revealing overall. If  anything, it is somewhat helpful to the applicant’s case. I disagree with Dr. Ali that the applicant was presenting normally or without distress. She appears to  painfully sit in a chair, is seen grimacing, sighing deeply and rising from the chair  seemingly in pain, slowly returning into the home, and then returning to gather  some items she left outside, again moving slowly and grimacing.

Social Functioning

[53] The Guides indicate that social functioning refers to 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, friends, neighbors,  grocery clerks, landlords, or bus drivers. I find that that the applicant has  sustained a class 3, moderate impairment in this domain.

[54] While Dr. Solomon felt that a marked impairment was appropriate for this range,  both Dr. Patel and Dr. Ali assigned a moderate impairment.

[55] Dr. Solomon noted that the applicant engaged in less than 50% of her pre accident social activity, and that the majority of the social activity was in the form  of surface engagement with her mother, sister, and students at work. It appears  from both parties’ occupational therapy assessments that the applicant was able  to interact politely with store clerks.

[56] However, although the applicant’s relationships had been affected, she was able  to maintain her relationships with both of the witnesses (colleagues/friends) albeit  in a reduced capacity. She continued to visit her sister and mother. The applicant  reported that she “was on a hiatus” from dating prior to the accident, which is not  noted by Dr. Solomon. The applicant talked on the phone with her friends and  continued to see them albeit less frequently. She attended an art class once a  week. I accept that the applicant has experienced non-trivial limitations to her  capacity for social functioning, namely that she is less involved in the community,  such as her coaching, and reduced interactions with friends. However, I agree  that the description “impairment levels are compatible with some but not all  useful functioning,” i.e. moderate impairment, accurately describes the applicant  in this domain.




[57] Impairment in adaptation is defined by the Guides as the repeated failure to  adapt to stressful circumstances, in the face of which “the individual may  withdraw from the situation or experience exacerbation of signs and symptoms of  a mental disorder; that is, decompensate or have difficulty maintaining activities  of daily living, continuing social relationships, and completing tasks.”8 Therefore  the focus of the analysis in this domain is on the psychological stress tolerance of  the individual. Impairment in adaptation affects the ability to function across all  activity domains, not only work-like settings.9 The Guides provide examples of  adaptation, such as the ability to use public transportation, travel to and from  unfamiliar places, to set realistic goals and make plans independently of others.

[58] I prefer Dr. Patel’s ratings to Dr. Ali’s in this domain. The applicant’s impairments  significantly impede useful function.

[59] Dr. Ali concluded that “at most, there appears to have been an initial temporary  exacerbation of the pre-existing anxiety as a result of the subject accident”. This  conclusion seems to wholly ignore the reams of medical evidence of the  applicant’s psychological and cognitive issues that are well documented. Dr. Ali  relied on Ms. Tandon’s occupational therapy assessments, which made no  comment on the state of the applicant’s home and noted that despite the  applicant’s subjective reports of symptom aggravation, she was observed to  complete the assessment without deterioration.

[60] In contrast to Dr. Ali’s conclusions, I find the evidence is largely consistent that  the applicant’s attempts to return to full-time work came at the expense of all her  other activities. For example, a progress report from the treating psychologist  indicate that the applicant had become more depressed, and that “her mood  decline is considered to be secondary to the increased stress associated with her  rather rapid increase in work hours from that time, from being disabled, to now  working on a full time basis. Stress tolerance appears to be reduced and she has  little to no energy left to take care of herself at the end of the day, including  maintaining healthy eating and exercise; or for social activities. Most likely  feelings of helplessness and hopelessness have increased, and passive suicidal  ideation is present”.

[61] This is consistent with Ms. Naumann’s findings that the applicant’s home was  very cluttered, visibly disorganized and soiled; there were boxes stacked  throughout the house; and garbage from fast food scattered on most surfaces in

8 AMA Guides 14/294.

9 AMA Guides 14/294.




the home.10 Cat feces were also noted to be present on the carpet under the  coffee table. During the functional tolerance assessment, the applicant was  unable to lay in her bed on account of it being soiled by cat feces at the time. The  applicant’s cognitive symptoms were noted to impact her function more  significantly as the assessment progressed and she became more fatigued. Ms.  Naumann noted that it appeared that the applicant applied all of her energy to  her job as a teacher, resulting in no residual ability to engage in self care or  leisure tasks, taking care of her home, or maintaining basic hygiene. She was  noted to be unable to maintain a functional level of cognitive ability when  experiencing increasing stimuli and fatigue. Her cognitive ability declined as the  day progressed.

[62] Dr. Patel noted that through a “maladaptive coping strategy,” the applicant avoids  stress and pain escalation to reduce the impact of her symptoms at the sacrifice  of her quality of life and engagement in activities that were previously enjoyable.  The applicant found it difficult to balance the various aspects of her life. When  she engages in some activities that are mentally or physically demanding, she  will not be able to engage in another task due to worsening of her symptoms until  she recovers. She had gained more than 60 pounds since the accident and had  been referred to a treatment for help with emotional eating. Dr. Patel’s findings  were largely consistent with the treating psychologist’s records.

[63] The evidence indicates that the applicant demonstrated a substantial inability to  engage in the meaningful roles and responsibilities of her normal life. She  required cueing and support to perform many basic self-care and hygiene  activities, and even with support, she was not performing to a standard that is  consistent with moderately impaired function. Her cognitive changes become  more pronounced with fatigue. She presented with functional impairments with  resilience, endurance, persistence, reliability, coping, emotional regulation, and  overall employability. Although she is highly motivated to engage in work-related  tasks, she was not able to pace herself effectively without using up all of her  cognitive reserves. The nature of her employment as an elementary school  teacher makes it difficult to put the necessary supports in place. Even with  significant support and accommodations, the applicant was unable to balance the  various aspects of her life as a result of her impairments.

[64] The available information supports a marked (Class 4) impairment with respect to  Adaptation.

10 Exhibit 1 page 155.



Attendant Care 

[65] Section 19 of the Schedule provides that an insurer is required to pay an  attendant care benefit (“ACB”) for all reasonable and necessary expenses  incurred on behalf of an insured person as a result of an accident for services  provided by an aid or attendant. An assessment of attendant care needs (“Form  1”) prepared by an OT sets out the services and amount of care an individual  requires as well as the monthly amount payable. An insured person who is not  deemed CAT is entitled to an ACB for only the first 104 weeks following the date  of the accident.

[66] Section 42(5) of the Schedule provides that an insurer may, but is not required to,  pay an expense incurred before a Form 1 that complies with this section is  submitted to the insurer.

[67] The first Form 1 recommending attendant care for the applicant was completed,  by Ms. Chera, dated November 23, 2016, totalling $644.63. The Form 1 was  accompanied by functional assessment report by Ms. Chera, dated December  14, 2016. Ms. Chera recommended assistance with meals, due to the applicant’s difficulty preparing regular healthy meals, as well as assistance with bathroom  and bedroom hygiene.

[68] In response to the Form 1, the respondent arranged a s. 44 assessment. The  applicant was assessed by Ms. Dhillon, who produced a report dated March 23,  2017 in which she concludes that the applicant did not require attendant care.

[69] I found the report of Ms. Chera more consistent with the totality of the evidence  before me. The Tribunal heard evidence from the applicant, her mother, two of  the applicant’s friends, the RSW, and Ms. Chera and the other OT, Ms.  Naumann, who confirmed the applicant’s inability to maintain a clean or hygienic  home. They explained how it was full of junk food waste, garbage and clutter.  The applicant moved in with her mother on multiple occasions because she was  unable to manage taking care of herself.

[70] The report completed by Ms. Chera takes into account the applicant’s cognitive  and emotional impairments that were impacting her ability to complete these  aspects of her care. Whereas the report by Ms. Dhillon focuses on the applicant’s  physical ability to complete the tasks. The applicant is not physically unable to  complete the tasks due to her injuries, but rather due to her psychological  emotional and cognitive issues, and their impact on her motivation and energy  levels which led her to not cleaning the bathroom, changing soiled linens or  preparing healthy meals etc.


[71] The applicant has conceded that the attendant care was not “incurred” in  accordance with the Schedule. The applicant submits that the Tribunal should  deem the benefits incurred as provided by section 3(8) which states that, if the  Tribunal finds that an expense was not incurred because the insurer  unreasonably withheld or delayed payment of a benefit in respect of the expense,  the Tribunal may deem the expense to have been incurred. The applicant  submits that her failure to incur the benefit was based solely on her inability to  afford the expense.

[72] While I find that the applicant is entitled to attendant care benefits, I decline to  deem the benefits incurred. The first Form 1 was submitted a couple of months  prior to the two-year mark. Although I have concluded that the respondent was  wrong, and find the applicant is entitled to the benefits, I do not agree that the  insurer unreasonably withheld the benefit. It arranged an assessment with an  appropriate expert who concluded that attendant care was not required.

[73] The applicant is entitled to attendant care benefits at the rate of $644.63 per  month from the date the first Form 1 was submitted, subject to the benefits being  properly incurred in accordance with section 3(7)(e) of the Schedule.

Medical Benefits 

$2,593.89 for professional organizing services11; $2,763.50 for aquatherapy  sessions with an occupational therapist12; and $2,505.43 for aquatherapy  sessions with a rehabilitation support worker13

[74] The three plans (dated April 13, April 3, and May 14, 2019, respectively) were  denied by the respondent in a letter dated May 15, 2019.14

[75] The plans were denied on the basis that the applicant had received adequate  treatment, personal organizer services appear to be a combination of  housekeeping and attendant care, the plans for the RSW and OT services for  aquatherapy overlapped, and she already had a gym membership with pool  access and a personal trainer. The respondent also relies on the surveillance  footage of the applicant collecting papers off the ground and folding a blanket, as  well as the applicant’s ability to drive and to plan lessons for her students as  evidence that the treatment plans were not reasonable or necessary.

11 Exhibit 1 Tab 2(D).

12 Exhibit 1 Tab 2(C).

13 Exhibit 1 Tab 2(E).

14 Exhibit 1 Tab 4 page 793.




[76] I agree that the treatment plans for RSW and OT services appear to be a  duplication of services. Given that the applicant already has pool access and a  personal trainer, I find that these treatment plans are not reasonable or  necessary.

[77] However, I am persuaded that the treatment plan for the professional organizer  services are reasonable and necessary. The services are intended to train and  assist the applicant with systems that help keep a person organized. The  applicant has significant clutter issues and an inability to stay organized. She  missed the deadline to file her paperwork for long term disability benefits, let her health coverage expire, and had to file a consumer proposal due to her inability  to budget and stay organized. The Tribunal heard evidence from the RSW that  worked with the applicant twice a week for almost a year about the applicant’s  issues with clutter, staying organized, and the “mountain of paperwork” on the  applicant’s floor. Both the applicant’s friend and her mother described it as almost  a hoarding situation.

[78] I am satisfied that the evidence overall supports the need for the professional  organizing services.

$5,935.00 for vision therapy

[79] Dr. Patrick Quaid, a neuro optometrist submitted a report dated February 27,  2019 after assessing the applicant in which he diagnosed post-trauma vision  syndrome as a result of the concussion she sustained in the accident.15 Dr.  Quaid submitted a first treatment plan for vision therapy, which was approved by  the respondent. A progress report dated August 30, 2019 indicates that the  applicant was making progress and had reduced her symptoms about 30%  overall. Her oculomotor function and visual processing scores were improved,  but she continued to experience visual fatigue. Dr. Quaid submitted a second  treatment plan, dated September 5, 2019 proposing further vision therapy  sessions.16 The plan was denied by the respondent in a letter dated October 10,  2019 following a paper review report prepared by Dr. Moddel, a neurologist. Dr.  Moddel testified that there is no such thing as vision fatigue, and she had no  neurological impairment. The respondent submits that he is more qualified then Dr. Quaid, who is not a medical doctor.

[80] I accept that the vision therapy treatment plan is reasonable and necessary. The  applicant consistently reported issues about her vision after the accident, as

15 Exhibit 3 Tab 6.

16 Exhibit 2 page 147.



evidenced by Dr. MacDonald’s first treatment plan in April 2015 which notes that  she was experiencing light sensitivity and blurred vision.17 In July 2017 she  sought assistance from Dr. Ubhi at the Sheridan Optometric Centre, who also  documented visual fatigue, eye strain, and reduced ability to change visual  focus.18 The applicant requested lighting accommodations at work. The applicant  reported improvement in her symptoms with the treatment received.


[81] Section 10 of Regulation 664, R.R.O. 1990 states that, if the Tribunal finds that  an insurer has unreasonably withheld or delayed payments, the Tribunal may  award a lump sum of up to 50% of the amount to which the person was entitled  at the time of the award with interest on all amounts then owing including unpaid  interest.

[82] The applicant submits that the award is warranted for denied benefits, due to  unreasonable assessments, for not reviewing updated medical documentation  prior to arranging assessments, reducing the voluminous medical documentation  to half a page summary without explanation when considering whether the  applicant was catastrophically impaired, and spending only fifteen minutes  discussing whether the applicant was catastrophically impaired in the CAT  Committee meeting.

[83] Just because I have found that the respondent was wrong in its denials does not  automatically entitle the applicant to an award. An insurer is not to be held to a  standard of perfection, but rather, it should be held to a standard of  reasonableness. The purpose of an award is to punish an insurer for misconduct  and to deter it and others from future similar actions.19

[84] It is well settled that an award should not be ordered simply because an insurer  made an incorrect decision. Rather, in order to attract an award under Reg.664  the insurer’s conduct must be excessive, imprudent, stubborn, inflexible,  unyielding or immoderate. I am not satisfied that threshold was met in this case.  The applicant is not entitled to an award under Regulation 664. The respondent  acted in accordance with the schedule and retained appropriate medical  professionals to provide opinions on the reasonableness and necessity of  proposed treatment plans.

17 Exhibit 1 page 2419.

18 Exhibit 1 page 1653

19 Persofsky v Liberty Mutual Insurance Company (FSCO P00-00041, January 31, 2003).




[85] The applicant has sustained a catastrophic impairment as defined by the  Schedule.

[86] The applicant is entitled to attendant care benefits at the rate of $644.63 per  month from the date the first Form 1 was submitted, subject to the benefits being  properly incurred in accordance with section 3(7)(e) of the Schedule.

[87] The plans for professional organizing services and vision therapy are reasonable  and necessary. The two plans for aquatherapy sessions are not.

[88] The applicant is entitled to interest on denied benefits, payable in accordance  with the Schedule. The respondent is not liable to pay an award pursuant to  Regulation 664.

Released: March 7, 2022


Kate Grieves



Dr Sujay Patel
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