Mahmudova v. Certas Direct, 2025 CanLII 105108

Mahmudova v. Certas Direct, 2025 ONLAT 23-009164/AABS

Citation: Mahmudova v. Certas Direct, 2025 ONLAT 23-009164/AABS Licence Appeal Tribunal File Number: 23-009164/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:

Naila Mahmudova

Applicant

and

Certas Direct

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Ilya Kirtsman, Counsel

Nicole Taylor, Counsel

For the Respondent:

David Raposo, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Nalia Mahmudova ("the Applicant") was involved in an automobile accident on July 9, 2019, and sought benefits from Certas Direct ("the Respondent") pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The Applicant was denied benefits by the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

1. Has the Applicant sustained a catastrophic impairment as defined by the Schedule?

2. Is the Applicant entitled to attendant care benefits in the amount of $796.60 per month for the period from July 9, 2019, to-date, less amounts paid?

3. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a neurological assessment, proposed by Main Street Health in a treatment plan dated April 13, 2022?

4. Is the Applicant entitled to a medical benefit in the amount of $21,373.95, less $16,288.95 approved by the Respondent, for catastrophic impairment determination assessments, proposed by Omega Medical in a treatment plan dated August 30, 2021?

5. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

6. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the Applicant has not met her onus to demonstrate that she sustained a catastrophic impairment as a result of the accident.

4The Applicant is not entitled to ACBs.

5The Applicant is not entitled to the neurological assessment plan, dated April 13, 2022.

6The Applicant is not entitled to the unapproved balance of the catastrophic impairment assessments proposed in a plan, dated August 30, 2021.

7No interest or award is payable.

BACKGROUND

8The Applicant was a rear-seat passenger in a vehicle which was struck from behind while slowing down at an intersection. She sought no medical attention immediately following the accident and proceeded to her destination with the other passengers and stayed there overnight, as planned.

9The Applicant submits that since the accident, she has sustained psychological, physical, and neurological injuries, arising to the catastrophic impairment level. She seeks a finding that she sustained a catastrophic impairment as a result of the accident, and is entitled to ACBs, and the treatment plans in dispute.

10As I will further address, the Applicant has a significant history of psychological impairments dominated by post-traumatic stress disorder ("PTSD"), depression, and anxiety. To her, her psychological impairments were stable and well-managed, and then the accident sent her on a downward spiral.

11An underlying issue to this dispute is whether the accident caused the Applicant's current presentation. Underlying to that issue, according to the Applicant, is whether the Respondent is entitled to a discount for apportionment of causation due to her pre-existing injuries.

12Lastly, but most important for the purpose of this hearing, is whether the Applicant's current presentation, regardless of her pre-existing injuries, meets the threshold for a catastrophic impairment.

13For the following reasons, I find that the Applicant does not meet the test for a catastrophic impairment. Given that I found that the Applicant has not demonstrated that she meets the test for a catastrophic impairment, I need not address the cause or apportionment of the Applicant's injuries.

ANALYSIS

Pre-accident function

14The Applicant's pre-accident medical records reflect pre-existing symptoms which are consistent with the Applicant's post-accident complaints.

15The Applicant immigrated to Canada alone in 2016 as a refugee. She has the misfortunate history of being subject to familial violence prior to immigrating. The last straw being when she sustained a concussion at the hands of a family member.

16The Applicant engaged in psychotherapy with respect to the psychological injuries she sustained prior to immigrating. Her injuries were being managed, and there was hope that her condition would improve. Despite the management of her psychological condition, the Applicant continued to be subject to considerable stress from her pre-immigration life. In December 2018, seven months prior to the accident, the Applicant had an episode that left her very stressed and anxious, which left her unable to sleep for two days, and caused her to isolate herself from ESL classes for two days.

17The Applicant also had pre-existing physical complaints as reported to her family physician, Dr. R. Ilyas, which are consistent with her post-accident issues. In January 2019 she reported right flank pain, in March 2019 she had back pain radiating down her leg, and headaches with elevated blood pressure, and in May 2019 she reported leg pain and spasms. About three weeks prior to the accident, in June 2019, the Applicant also reported that for the last two to three weeks she was waking up with headaches and dizziness with high blood pressure and low back pain.

Accident-related physical injuries and post-accident function

18It appears that the Applicant sustained right shoulder trauma in the accident or shortly thereafter. An August 21, 2019 ultrasound showed bicep tendinosis, a partial thickness tear of the supraspinatus tendon, and a partial thickness tear in the subscapularis. The Applicant continued to be hindered by physical impairments in her shoulder and, an examination on October 17, 2019 with Dr. Ilyas demonstrated reduced range of motion ("ROM"), greater on active testing than on passive observation. These physical injuries, and the impairments arising from them, are not considered when assessing whether the Applicant sustained a catastrophic mental and behavioural impairment.

Catastrophic impairment

19The onus is on the Applicant to demonstrate that she sustained a catastrophic impairment as a result of the accident. To do so, she must show she suffers from an impairment that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition ("the AMA Guides"), results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning, due to a mental or behavioural disorder.

20The assessment pursuant to criterion 8 excludes consideration of any physical impairments and is based solely on mental and behavioural disorders. Pursuant to criterion 8, mental and behavioural impairments are measured in four areas: 1) Activities of Daily Living ("ADLs"); 2) Social Functioning ("SF"); 3) Concentration Persistence and Pace ("CPP"); and 4) Adaptation in Work or Work-like Settings ("adaptation").

21According to the AMA Guides, the impairment rankings are as follows:

Class 1: No Impairment No impairment is noted

Class 2: Mild Impairment Impairment levels are compatible with most useful functioning

Class 3: Moderate Impairment Impairment levels are compatible with some, but not all, useful functioning

Class 4: Marked Impairment Impairment levels significantly impede useful functioning

Class 5: Extreme Impairment Impairment levels preclude useful functioning

22The AMA Guides state that a class 4, marked, impairment significantly impedes useful functioning. Moreover, the AMA Guides note that a marked impairment in two or more spheres would be likely to preclude performing complex tasks without special support or assistance, such as that provided in a sheltered environment. An individual who was impaired in all four categories of functioning would be limited in ability to carry out many, but not all complex tasks. Mild and moderate limitations reduce overall performance but do not preclude performance.

23In combination, the Applicant's two catastrophic impairment reports find that she suffers from class 4 impairments in all spheres of function. The most recent, and the one she relies on most heavily, is the report by Dr. A. Liu, psychiatrist, dated April 23, 2024, which found class 4 impairments in ADLs, SF, and adaptation. Her first catastrophic impairment report, by Dr. D. Becker, psychologist, dated March 20, 2022, found class 4 impairments in ADLs, and adaptation, and class 3-4 in CPP.

24The Respondent submits that the Applicant does not have three class 4 impairment and notes that her own reported level of function does not translate into an insured person whose impairments "preclude useful functioning". It relies on the IE report by Dr. N. Philips, dated January 23, 2023, which found that the Applicant sustained class 2, mild, impairments in ADLS, SF, and CPP, and a class 3 impairment in adaptation.

25For the following reasons, I find that the Applicant has not demonstrated that she suffers from a marked impairment in ADLs and CPP. Accordingly, she does not meet the criteria for a catastrophic impairment.

Activities of daily living ("ADLs")

26I find that the Applicant does not suffer from a marked or extreme impairment in ADLs.

27The AMA Guides notes that ADLs include activities such as self-care, personal hygiene, communication, ambulation, travel, sleep, and social and recreational activities.

28I disagree with the findings of Dr. Becker and Dr. Liu and prefer the opinion of Dr. Philip and find that the Applicant sustained less than a marked impairment in ADLs. I conclude that the functionality depicted by the Applicant throughout her medical record indicates that she does not suffer a marked impairment in ADLs.

29The Applicant's reports are inconsistent with a finding that her mental and behavioural impairment preclude useful function in her ADLs. For example, the Applicant reported to Dr. Liu that she remains independent with her bathing, self-grooming, dressing and undressing, feeding and toileting. Though she reports showering fewer times per week as compared to the time prior to the accident. She also reports that she finds it difficult to cook due to pain and impaired focus and relies on simple meals instead. She also reported an ability to use phones and computers, but the duration of her screen time is hindered by blurred vision and headaches. The Applicant administers her own medication and manages her own finances, with help from friends who set up automatic bill payments. She assists with household chores and reports that she goes grocery shopping with friends.

30The functionality reported by the Applicant to Dr. Becker does not meet the level of a catastrophic impairment. The Applicant reported that she returned to ESL classes, though at a part-time level until school was closed due to the Covid-19 pandemic, and she also reported that she hopes to return when it reopens. The Applicant reports living with three roommates and being independent with her personal care activities, with pacing. She does her own small grocery shopping and prepares simple meals.

31The level of function reported by the Applicant to Dr. Philips is consistent with a mild impairment. The Applicant lives independently and takes care of much of her own basic needs such as paying bills, buying groceries, and cooking simple meals for herself. She paces herself because of pain and headaches. To me, Dr. Philips' assessment is reasonable considering the Applicant's independence and the fact that she engages in her self-care tasks independently, without regular support, and does not need regular prompting for personal hygiene.

32Accordingly, I find that the Applicant has not demonstrated that she sustained a class 4, marked, impairment in the sphere of ADLs.

Concentration, persistence, and pace ("CPP")

33I find that the Applicant has not demonstrated that she suffers from a marked impairment in CPP.

34The AMA Guides consider a person's ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings when assessing CPP. The AMA Guides note that this is often assessed in psychological tests that require short-term memory or tasks that must be completed within established time limits.

35Dr. Liu concluded that the Applicant a class 3, moderate, impairment in CPP. Dr. Liu highlighted observations by K. Chan, Occupational Therapist ("OT"), in the April 1, 2024 report that stated the Applicant is able to follow the flow of conversation and responded to questions appropriately. The report also noted that the Applicant's pace while completing physical activities, such as meal preparation, was impaired due to physical pain – not a mental and behavioural impairment. Recall, a criterion 8 mental and behavioural impairment does not include consideration for physical injuries such as the Applicant's right shoulder issues.

36Dr. Becker, in the March 20, 2022 report, concluded that the Applicant suffered from a class 3-4 impairment in CPP. Dr. Becker states that the Applicant's impairment levels are compatible with some, but not all, useful functioning, and that "at times" her impairment level significantly impedes useful functioning. Dr. Becker states that the factors impeding the Applicant are pain, worry about exacerbation of pain, fear of sustaining further harm, perceived disability, depressive symptomology, disturbed sleep, fatigue, low energy, worry, anxiety, and possibly medication side effects. In the report, Dr. Becker relies heavily on the observations of OT Habash, who assessed the Applicant as part of the catastrophic impairment assessments. OT Habash noted that the Applicant had ongoing pain complaints that impeded her performance, as well as cognitive and emotional limitations.

37I disagree with Dr. Becker that the Applicant's mental and behavioural impairments possibly rise to a class 4, marked, impairment and conclude that her level of impairment is below a class 4 impairment. To me, Dr. Becker's assessment and report, including the opinion of OT Habash, gives consideration for the Applicant's physical complaints, which are separate from her mental and behavioural complaints. The theme throughout the assessment is that the Applicant's pain impairs her, followed by cognitive and emotional issues. Yet, physical issues, such as pain from musculoskeletal or soft-tissue injuries, must not be considered when assessing the level of mental and behavioural impairment. In this case, pain appears to be the limiting factor when assessing the Applicant's functionality, and the pain stems from physical injuries.

38I find the opinion of Dr. Philip more persuasive and consistent with the Applicant's self-reported and observed function. Dr. Philip concluded that the Applicant suffers from a moderate impairment in CPP, noting that she does not meet the anchor point for a marked impairment. Dr. Philip found that the Applicant is able to initiate and complete tasks, is able to read and is aware of current events, and entertains herself by watching TV and reading. To me, Dr. Philip's findings and opinion are consistent with the Applicant's overall function.

39Accordingly, I find that the Applicant had not demonstrated that she suffers from a class 4, marked impairment in the sphere of CPP.

40Having found that the Applicant has not demonstrated that she suffers from class 4, marked impairments, in 2 of the 4 spheres of function, it follows that she has not demonstrated that she sustained a catastrophic impairment as a result of the accident.

Attendant care benefits ("ACBs")

41I find that the Applicant has not demonstrated entitlement to ACBs beyond the amounts paid to-date.

42The Applicant claims entitlement to incurred ACBs up to $796.60 per month, for the period from the date of the accident to-date and ongoing. However, having found that she has not sustained a catastrophic impairment as a result of the accident, it follows that her claim for ACBs is limited to no more than 260 weeks after the accident, pursuant to section 20 of the Schedule.

43Pursuant to section 19 of the Schedule, ACBs shall pay for all reasonable and necessary expenses that are incurred by the Applicant for services provided by an aide or attendant. The onus is on the Applicant to demonstrate that she required the care of an aide or attendant and that she incurred the expense of hiring one.

44Pursuant to section 3(7)e of the Schedule, an expense in respect of goods or services referred to in the Schedule is not incurred by an insured person unless the insured person has received the goods and services to which the expense relates, the insured person paid the expense or promised to pay the expense, and the person who provides the goods or services did so in the course of their employment, occupation, or profession, or incurred an economic loss as a result of providing the goods or services.

45The Applicant may still be entitled to ACBs despite not hiring an aide or attendant if she can show that the expense was not incurred because the Respondent unreasonably withheld or delayed payment of the benefit.

46The Applicant claims entitlement to all incurred ACBs, up to the monthly limit of $796.60, as proposed by OT H. Cho, in the report, dated March 3, 2021. OT Cho recommended assistance with hygiene, feeding, and mobility. OT Cho highlighted that the Applicant could not sweep, forgot that she was cooking food, and never used soap or a sponge to clean a dish that touched raw meat, and worked at a very slow pace. In response, the Respondent states that the Applicant consumed approximately $100.00 per month in ACBs and that amount is in accordance with the recommendation of OT D. Wilson, who recommended ACBs at the rate of $90.32 plus HST per month. The Applicant tendered reply submissions, but never addressed this issue.

47I find that the Applicant has not demonstrated entitlement to ACBs as claimed because, to her detriment, she has not submitted any evidence to confirm that she incurred ACBs during the period of her claim. She presents no invoices from a service provider and no proof of an economic loss for anyone providing ACBs. Moreover, she has not asked the Tribunal to deem ACBs to be incurred for any period and I fail to see a narrative in which I can conclude that the Respondent unreasonably withheld or delayed payment of ACBs.

48Having tendered no evidence she incurred ACBs and making no submissions on how or why ACBs should be deemed incurred, it follows that the Applicant has not met her onus to demonstrate that she is entitled to ACBs above the amounts paid to-date.

Neurological assessment

49I find that the proposed neurological assessment is not reasonable and necessary as a result of the accident.

50The Applicant submits that this assessment is reasonable and necessary to diagnose and provide treatment recommendations for her, given her complex neurological issues. She submits that this assessment is different than the neurological assessment in the catastrophic impairment assessments because the latter would not speak to treatment recommendations.

51The Respondent submits that the neurological assessment is a duplication of services provided during the catastrophic impairment assessments, which took place less than four months prior to the submission of this plan. The Respondent highlights that no neurological specialist in the catastrophic impairment assessments, both the Applicant's and Respondent's, concluded that she sustained a brain injury or concussion as a result of the accident. It further submits that there is no reason why the catastrophic impairment assessor could not speak to treatment recommendations.

52I find insufficient information to suggest that the Applicant suffers from accident-related neurological symptoms or impairments which would warrant a complete assessment. I rely on the catastrophic impairment report of Dr. D. Robinson, neurologist, dated March 30, 2022, procured by the Applicant. In that report, Dr. Robinson states that it is unclear the Applicant sustained a concussion or mild traumatic brain injury ("mTBI") in the accident and that none of the treating physicians involved in the Applicant's early care noted a diagnosis of mTBI or concussion. Dr. Robinson never identified any neurological deficits and, instead, found that the overarching aspect of the Applicant's presentation was of chronic pain and psycho-emotional problems.

53Having presented with virtually no symptoms or signs of a neurological impairment, it follows that a neurological assessment is not reasonable and necessary as a result of the accident.

Catastrophic impairment assessments

54I find that the Applicant is not entitled to the unapproved balance of the catastrophic impairment assessments.

55The Applicant submits that the unapproved costs incurred for the catastrophic impairment assessments are reasonable and necessary given her complex psychological issues, and the existence of the Respondent's catastrophic impairment IE reports, as well as its addendum IE reports.

56The Respondent submits that it approved $14,415.00 plus HST for the Applicant's catastrophic impairment reports and that it denied certain services proposed that it deemed to be duplicative. Specifically, it denied funding for a file review, functional abilities evaluation ("FAE"), and psychometry testing. It submits that, according to caselaw, a file review is not payable in the context of such an assessment, an FAE is duplicative to the approved physiatry assessment, and psychometry testing charges have the result of increasing the effective hourly rates for psychological assessments beyond what is permitted under the The Professional Services Guideline – Superintendent's Guideline no.03/14 ("the PSG").

57Pursuant to section 25(5) of the Schedule, the Applicant is entitled to funding for reasonable and necessary assessments performed in connection with a determination of whether she suffered a catastrophic impairment. Section 25(5)(a) of the Schedule caps the cost of an assessment at $2,000.00. Caselaw has established that the $2,000.00 cap on catastrophic impairment assessments is applied per modality.

58The Applicant has not demonstrated how or why charges for a file review are reasonable and necessary on top of the fees approved by the Respondent. The PSG confirms that, as provided in subsection 25(5)(a) Schedule, an insurer may agree under subsection 38(8) to pay fees of up to $2,000.00 for any one assessment or examination proposed in an OCF-18. Here, the Applicant has not provided any submissions or evidence to suggest that a file review is a service that would not normally be included in the $2,000.00 assessment cap provided by the PSG.

59I find that the Applicant has not demonstrated that a FAE is reasonable and necessary to assess whether she sustained a catastrophic impairment as a result of the accident. As noted by the Respondent, a physiatry assessment was approved as part of the catastrophic impairment assessments. Here, the Applicant provided no submissions on why or how the FAE is a separate modality that warrants separate funding. Thus, I conclude that the Applicant has not met her onus to demonstrate that the FAE is a reasonable and necessary component of the catastrophic impairment assessments.

60The Applicant has not demonstrated that fees for psychometry testing are reasonable and necessary and apart from the psychological assessment. The Applicant made no submissions on the difference between the two services, nor elaborated on why psychometric testing ought to be invoiced as a separate modality from the psychological assessment. Further, the plan proposing the assessment proposes that psychometry testing is only required if virtual testing assistance is required. While the assessment was conducted virtually, the Applicant led no evidence explaining why or whether she required virtual testing assistance. Thus, I conclude that the Applicant has not met her onus to demonstrate entitlement to the unapproved balance of the catastrophic impairment assessments.

Interest

61Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable or overdue, it follows that no interest is payable.

Award

62The Applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

63The Applicant claims entitlement to an award of 50% of all amounts improperly denied on the basis that the Respondent did not consider all relevant information and selectively ignored unfavourable information, and selectively relied on its findings. She specifically submits that the Respondent overlooked Dr. Dudley's report, which found that the accident caused her impairments, as well as OT T. Shaw's findings on the Applicant's functional limitations in the report, dated January 23, 2023. The Applicant submits that her condition worsened due to the unreasonable denials which impeded her from having adequate funding for timely treatment. To her, the Respondent blindly relied on IE conclusion without critically weighing all evidence.

64The Respondent submits that the threshold for an award is high and that it's conduct cannot be characterized as "excessive, imprudent, stubborn, inflexible, unyielding, or immoderate". It also submits that the main issue in this hearing is whether the Applicant sustained a catastrophic impairment, which is a designation and not a benefit upon which an award can be levied.

65I reject the premise that no award could be levied on the basis that catastrophic impairment is a designation and not a benefit. The Respondent is essentially saying that any behaviour, regardless of how egregious it may be, cannot attract an award if it is with respect to a designation. The Respondent's position that a designation is not a benefit upon which an award can be levied is untenable when considering that the purpose of an award is to punish egregious behaviour by insurers and deter others from acting similarly in the future. As it stands in the current jurisprudence, an award is the only tool available to the Tribunal to reprimand insurers from behaviour that is unacceptable in a no-fault accident benefits scheme. To limit an award strictly to a payable benefit, and not extend it to a designation like catastrophic impairment, is not in keeping with the consumer protection nature of the Schedule. In such a situation, it could be reasonable for an adjudicator to levy an award based on the withholding of benefits that are related to the designation.

66In any event, I find no award payable. The Applicant has not pointed me to evidence that the Respondent's behaviour was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. Further, as outlined above, I agree with the Respondent's determinations on the benefits claimed in this hearing, thus it cannot be said that the decisions fall warrant an award.

CONCLUSION AND ORDER

67The Applicant has not met her onus to demonstrate that she sustained a catastrophic impairment as a result of the accident.

68The Applicant is not entitled to ACBs.

69The Applicant is not entitled to the neurological assessment plan, dated April 13, 2022.

70The Applicant is not entitled to the unapproved balance of the catastrophic impairment assessments proposed in a plan, dated August 30, 2021.

71No interest or award is payable.