Licence Appeal Tribunal File Number: 23-004899/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:
Harpreet Grewal
Applicant
and
Peel Mutual Insurance Company
Respondent
DECISION
VICE-CHAIR:
Jeremy A. Roberts
APPEARANCES:
For the Applicant:
Imtiaz Hosein, Counsel
Ari Razack, Articling Student
For the Respondent:
Jonathan Schrieder, Counsel
Court Reporter:
Marcia Gardner
Heard by Videoconference:
Aug 18-22, 2025
OVERVIEW
1Harpreet Grewal, the applicant, was involved in an automobile accident on November 7, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Peel Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2A prior hearing on this matter was held on August 12 to 13, 2024 and the application was ultimately dismissed in a Decision dated October 21, 2024. In a Reconsideration Decision dated January 23, 2025, Vice Chair Lake granted the applicant’s request for reconsideration and cancelled the original decision. A re-hearing of the matter was ordered.
3On July 30, 2025, an Accommodation Order was issued on request of the applicant which: (1) advised the respondent not to interrupt the applicant or cut her off when she is providing testimony; (2) permitted the applicant to have a regulated support person present during the hearing; and (3) instructed the hearing adjudicator to ensure that the applicant was permitted to take scheduled and unscheduled breaks as needed during the hearing.
ISSUES
4The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule under criterion 8?
ii. Is the applicant entitled to $13,440.00 for catastrophic determination assessments, proposed by Okell Rehabilitation Services Inc., in a treatment plan dated February 17, 2021?
iii. Is the applicant entitled to the following treatment plans proposed by Okell Rehabilitation Services Inc.:
a) $3,791.00 for occupational therapy (OT) services in a treatment plan dated June 30, 2021?
b) $4,140.25 for OT services in a treatment plan dated October 13, 2020?
c) $5,692.09 for assistive devices in a treatment plan dated October 13, 2020?
d) $4,487.57 for OT services and assistive devices in a treatment plan dated April 11, 2022?
e) $4,660.39 for OT services and assistive devices in a treatment plan dated July 21, 2022?
f) $5,491.00 for OT services in a treatment plan dated December 28, 2022?
g) $4,695.00 for social rehab counselling in a treatment plan dated Aug 8, 2022?
iv. Is the applicant entitled to the following treatment plans, proposed by Anchor Rehabilitation Support Services:
a) $6,688.52 for other goods and services in a treatment plan dated August 2, 2022?
b) $8,420.80 for other goods and services in a treatment plan dated November 30, 2022?
v. Is the applicant entitled to $6,334.84 for psychological therapy services, proposed by Kaplan & Levitt Psychologists, in a treatment plan dated October 29, 2021?
vi. Is the applicant entitled to $2,200.00 for a psychological assessment, propose by Dr. S. Akram-Pall in a treatment plan dated October 22, 2019?
vii. Is the applicant entitled to $33,790.00 for living accommodations, proposed by Homewood Accommodations, in an OCF-6 dated May 25, 2022?
viii. Is the respondent liable to pay an award under s.10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
5During proceedings, the applicant indicated that she was withdrawing the following issues in dispute: items 3, 14, and 15 as listed in the Case Conference Report and Order (CCRO) dated January 5, 2024.
6The applicant also withdrew the issue of whether she sustained a catastrophic impairment as defined by the Schedule under criterion 7. The issues in dispute have been adjusted accordingly.
RESULT
7I find the following:
i. The applicant is not deemed catastrophically impaired.
ii. The applicant is entitled to the following treatment plans and associated interest:
a) $13,440.00 for catastrophic impairment assessments, in a treatment plan dated February 17, 2021.
b) $3,791.00 for OT services in a treatment plan dated June 30, 2021.
c) $4,140.25 for OT services in a treatment plan dated October 13, 2020.
d) $5,692.09 for assistive devices in a treatment plan dated October 13, 2020.
e) $2,200.00 for a psychological assessment in a treatment plan dated October 22, 2019.
iii. The applicant is not entitled to the proposed treatment plans submitted by Okell Rehabilitation Support Inc., after the 260-week mark; to the treatment plans submitted by Anchor Rehabilitation Support Services; or to the proposed psychological therapy services.
iv. The applicant is not entitled to the living accommodations cost proposed by Homewood Accommodations.
v. The applicant is not entitled to an award.
PROCEDURAL ISSUES
8Throughout the hearing there were multiple procedural issues that were raised or arose which required me to issue orders. Orders were issued through my authority under section 25.0.1 of the Statutory Powers Procedure Act, 1990 (“SPPA”), which states: “A Tribunal has the power to determine its own procedures and practices and may for that purpose: (a) make orders with respect to the procedures and practices that apply in any particular proceeding; and (b) establish rules under s. 25.1. I have summarized them here:
The applicant was not compelled to testify
9At the start of the hearing, applicant’s counsel notified the Tribunal that the applicant, Ms. Grewal, would not be testifying at the hearing. The applicant argued that she was unable to testify given her current mental state and given the challenges posed by testifying and answering questions. The respondent objected and brought a motion seeking the Tribunal to compel the applicant to testify, arguing that it believed up until the weekend before the hearing that the applicant was testifying and that it was a breach of procedural fairness to deny the respondent the opportunity to cross-examine this witness.
10Upon consideration of the submissions, I declined the request to compel the applicant to testify. I found that it would be inappropriate to compel an applicant to testify in her own case given that she has the onus in the matter. Ultimately, the issues in dispute would primarily turn on the medical evidence tendered as exhibits. Given that she has the onus, I failed to see the prejudice the respondent posed by her non-attendance. Moreover, I find that I do not have the authority to compel any witness to testify, only to issue a summons.
Dr. Fulton was called to testify
11On Day 2 of the hearing, the applicant informed the Tribunal that she would no longer be calling Dr. Fulton (neuropsychologist), OT Yegendorf, or OT Saunders to testify. The applicant argued that the cost of having these witnesses appear was beyond her means and that she therefore would prefer to rely solely on the witnesses’ reports. The applicant indicated that she did not object to these witnesses testifying provided the cost of their testimony was covered by the respondent.
12While the respondent ultimately did not have any issue foregoing the testimony of OTs Yegendorf and Saunders and admitting their reports, it did object to Dr. Fulton failing to appear for cross-examination. It argued that: (1) it required Dr. Fulton to testify in order to be cross-examined on his report; (2) it had assumed up until that moment that the doctor was coming to testify given his inclusion on the applicant’s Final Witness List; and (3) the timing of his testimony had been discussed the prior day during the hearing, suggesting his testimony was proceeding.
13I considered submissions from the parties and found that per Rule 8.3 of the Licence Appeal Tribunal Rules, 2023 (“LAT Rules”), “payment of attendance money is the responsibility of the party that requested the summons”, which in this case was the applicant. If the applicant did not intend to produce Dr. Fulton as a witness, I offered as a remedy to the respondent an opportunity for both parties to give me submissions on what weight should be afforded to the doctor’s report given his non-attendance for cross-examination. Upon receiving this news, the applicant reversed her position and called Dr. Fulton to testify. Both parties consented to an abbreviated examination-in-chief and cross-examination due to time constraints and the witness’ testimony was heard, including cross-examination.
OT Marshall was permitted to testify
14On Day 3 of the hearing, the respondent objected to hearing the testimony of OT Bridget Marshall on the grounds that the applicant had failed to provide a CV or Acknowledgement of Expert Duty Form as required under Rule 10 of the LAT Rules. Because of this, the respondent argued that it was unable to adequately prepare for the testimony of this witness and sought for her testimony to be disallowed.
15The applicant argued Rule 10.2 only applies to expert witnesses and that OT Marshall was appearing in her capacity as a treating OT not a formal expert witness and was not confined to the same requirements. Both parties then gave submissions referencing Westerhof v. Gee, 2013 ONSC 2093, with the applicant arguing that OT Marshall as a treating OT did not meet the definition of “expert witness” in the decision, and the respondent arguing that OT Marshall did meet this definition given that she was hired by the applicant’s counsel’s firm.
16Upon consideration of the submissions, I ordered that OT Marshall be permitted to testify. Both parties were aware of OT Marshall’s testimony given that her name appeared on the applicant’s Final Witness List and the timing of her testimony was discussed on the first day of the hearing with no objections. Given that both parties were aware, I did not find any prejudice to the respondent in allowing her to testify.
17I did, however, instruct the parties that I would be taking submissions following the testimony on what weight, if any, should be given to OT Marshall’s testimony given the non-compliance with Rule 10.2 and the uncertainty over whether she was being admitted as a treating provider or expert.
18While the respondent objected to this approach on the grounds that I would hear inadmissible testimony, I instructed the respondent to hold its objections on this basis until after the conclusion of the testimony when I would hear submissions on weight. This was done through my authority under s. 23(1) of the SPPA. As promised, both parties were given up to 10 minutes at the conclusion of the testimony to provide these submissions. Ultimately, while I did rely on some notes from the OT’s progress reports in my decision, I found nothing in the OT’s testimony that proved to be a turning point in this case.
The Adjuster was not compelled to testify
19On Day 4 of the hearing, the respondent announced that it would no longer be calling the Adjuster to testify in the matter, arguing that the lack of any particulars for an award claim meant that the Adjuster’s testimony was no longer needed. It further argued that no proper summons was issued to the Adjuster by the applicant, giving the Tribunal no grounds to compel her testimony.
20The applicant argued that it had issued a proper summons to the Adjuster and that, therefore, she should be compelled to testify. It indicated that the summons was delivered to a representative of the insurance company who notified the delivery person that the summons would be forwarded to the Adjuster.
21The respondent disputed this, arguing that: (1) the summons was never served on the Adjuster; and that (2) the requirements of s. 12(3) of the SPPA stipulate that delivery must be done to the person named in the summons, which was not followed here.
22Upon consideration of the submissions, I found that service of the summons was not completed in a manner that satisfied the requirements of s. 12(3) of the SPPA, which states: “the summons shall be served personally on the person summoned.” In this case, the delivery of the summons to another individual does not satisfy that standard. As such, I found that there was nothing compelling the witness to testify. The parties were invited to make submissions during closing arguments on any adverse inference that could be drawn from a witnesses’ non-attendance despite being on the applicant’s Final Witness list, which both parties did.
An Accommodation Letter was not admitted into evidence
23On the final day of the hearing, the applicant asked that an Accommodation Letter sent to the Tribunal as part of a prior motion should be admitted into evidence as it spoke to the applicant’s inability to participate fully in the hearing. The respondent objected to its inclusion as an exhibit, given that the letter was part of materials filed for a motion and not part of the formal hearing briefs.
24I ordered that the Accommodation Letter not be admitted as evidence given that it was not filed as part of the briefs for this hearing. Moreover, I found that the letter would not be relevant to my determination on the issues in dispute given that the Letter was prepared in support of an accommodation request, the Tribunal had already considered the Letter and issued an Accommodation Order dated July 31, 2025 which both parties had received, and that the applicant did not testify at the hearing for the reasons set out above.
Criterion 7 was withdrawn as an issue in dispute
25On the final day of the hearing, the respondent argued that both criteria 7 & 8 were in dispute in this hearing, given that both criteria had been marked on the initial OCF-19 and given that both parties had conducted assessments examining the two criteria. It argued that the Tribunal was required to make a determination on catastrophic impairment considering both criteria and that it would not be efficient for the applicant to be permitted to bring a separate application on a separate criterion.
26The applicant argued that only criterion 8 was in dispute in this particular hearing. She argued that she made that clear in her opening remarks and in the selection of the witnesses that would appear. I clarified that the applicant was withdrawing her claim of being catastrophically impaired under criterion 7 in this hearing, which she confirmed.
27I ordered that the hearing would proceed on criterion 8 alone. An applicant can withdraw an issue at any time without prejudice. While I agree that the framing of the issue of catastrophic impairment is vague given the eight possible criteria, I do find that a determination under a specific criterion is an individual issue which can be withdrawn. The applicant did indicate on Day 1 that we were only dealing with criterion 8, which was my view of the hearing for the entire week based on the evidence and submissions of the applicant. Even if that had not been the case, as noted above, the applicant can withdraw an issue at any time and did so explicitly at the hearing.
ANALYSIS
Background
28Given that this accident occurred in 2016, I feel that it is worthwhile to begin with a brief timeline of major events in the applicant’s life since the accident, before beginning my analysis:
i. 2016: Ms. Grewal begins the JD/MBA program at York University (Osgoode Hall Law School) in the Fall of 2016. On November 7, 2016, she is involved in a motor vehicle accident. She visits her family doctor on November 9, 2016, in relation to this accident and complains of some physical pain (e.g. chest wall sore, right knee & hip bruised, neck muscles sore and tight). Ms. Grewal continues her studies, receiving grades ranging from B to A+ until the end of Winter Term 2019.
ii. 2018: The applicant travels to Cuba during the Winter of 2018. In March 2018, she visits the family doctor with concerns of possible ADHD. She is later diagnosed and begins taking medication for this condition in April 2018. She travels to Uganda as part of a Foundation for Human Rights Initiative trip in the Summer of 2018. On November 27, 2018, two years after the accident, there is the first reported family doctor visit related to the motor vehicle accident since immediately following the accident, where the applicant complains that pain has been “back on/off” in the past 2-3 months.
iii. 2019: The applicant chaired the JD/MBA Conference in 2019. In June 2019, she begins an internship at the law firm Davies, Ward, Phillips & Vineberg, for which she received positive performance reviews. She was subsequently given an early offer articling position that summer.
iv. 2020: In August 2020, she undergoes an OT functional assessment with Okell Rehabilitation Services as a result of reported challenges stemming from the subject motor vehicle accident.
v. 2021: In February 2021, the applicant is admitted to CAMH with worsening anxiety and mood “following a meeting with her lawyer on Friday regarding a case conference with her insurer” and with “fear she would harm herself if she returned home”. She then enters Homewood Health Centre in March 2021 for a period of 3-months. While there, she is diagnosed with somatic symptom disorder (with predominant pain), major depressive disorder, and obsessive-compulsive personality disorder traits.
vi. 2022: In March 2022, Ms. Grewal is assessed by psychiatrist Dr. Gerber, who diagnoses her with somatic symptom disorder, major depressive disorder, and posttraumatic stress disorder (PTSD). He also finds evidence of post-concussional syndrome. He meets with her again in June 2022 and concludes that she is catastrophically impaired under criterion 8.
The applicant is not deemed catastrophically impaired under criterion 8
29I find that the applicant is not deemed catastrophically impaired under criterion 8 as a result of not meeting her onus in demonstrating that her impairments would not be present “but for” the subject motor vehicle accident.
30The applicant is seeking to be deemed catastrophically impaired under criterion 8. In order to prove her case, the applicant must demonstrate that she has suffered accident-related impairments that result in a marked (class 4) or extreme (class 5) impairment in one of more areas of function according to the AMA Guides 4th Edition (“the Guides”) due to a mental or behavioural disorder. Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides set out the four spheres of functioning and the relative levels of impairment. The test to determine whether the applicant has sustained a catastrophic impairment is a legal one and not a medical one. See: Lie v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30.
31Here is a chart demonstrating the areas of functioning and the description of the levels of impairment:
Area 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 & Pace
Adaptation
32The onus is on the applicant to prove her case. To establish causation, pursuant to Sabadash vs. State Farm et al., 2019 ONSC 1121, the applicant must establish on a balance of probabilities that “but for” the accident she would not have suffered the impairments which form the basis for her application for the benefits claimed. The Court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment, but it must be a necessary cause.
33When considering the issue of catastrophic impairment here, the case largely comes down to a question of causation. To be satisfied that the applicant meets the definition of catastrophic impairment, she must demonstrate that: (1) she has a mental/behavioural disorder; (2) that this mental/behavioural disorder is a result of the subject motor vehicle accident; and (3) that the impairments resulting from this mental/behavioural disorder rise to the level of marked impairment in three out of four of the domains of functioning. There is little disagreement on question (1) between the applicant and respondent’s assessors who agree that the applicant suffers from several mental/behavioural disorders. Where the disagreement arises is on question (2) in relation to whether the applicant’s mental/behavioural disorders were caused by the accident. Both parties made submissions on this question.
34The applicant argued that she has sustained 4 marked impairments in the areas of Activities of Daily Living, Social Functioning, Concentration, Persistence & Pace, and Adaptation as a result of accident-related diagnoses of persistent somatic symptom disorder (with predominant pain), major depressive disorder, posttraumatic stress disorder (PTSD), and post-concussional syndrome. These conclusions are supported by: (i) the assessments of psychiatrist Dr. Gerber, who made the mental/behavioural disorder diagnoses on the basis of a medical file review (including both treating and assessing professionals), interviews with Ms. Grewal, family & friends, and his own assessment; (ii) the assessment of neuropsychologist Dr. Fulton, who supported the findings of a mild traumatic brain injury; and (iii) the clinical notes & records (“CNRs”) and assessments of various OTs (Bergart, Marshall, Snow, Yegendorf, and Saunders) who identified various degrees of functional limitations for the applicant. Based on these findings, Dr. Gerber opined that the applicant is significantly impeded in her ability to take care of herself, focus and succeed at work or school, maintain healthy relationships, and adapt to ongoing stressors.
35In making her case for a causal link between the accident and her current impairments, the applicant argues that while she experienced some challenges prior to the accident (family conflict, anxiety, and likely ADHD) she was overall a high functioning, driven young adult. She argues that after the accident, she tried her best to sustain her level of functioning, but cracks began to appear. She points to various CNRs of her family physician during this time that indicate complaints of pain, concentration difficulties, and psychiatric concerns. Then, around 2021, her mental state deteriorates leading to admission to CAMH & Homewood, and subsequently Dr. Gerber concluded in 2022 that the applicant is suffering accident-related mental/behavioural disorders. She argues that while she may not have been catastrophically impaired in the initial years after the accident, but by the time of her assessment with Dr. Gerber, her condition has deteriorated and there is no other intervening event during that period, other than the accident, that could explain such a significant deterioration. As a result of this, she concludes that her current condition would not have occurred “but for” the subject motor vehicle accident.
36The respondent argued that the applicant is not catastrophically impaired and submits she has only a moderate impairment in the domain of activities of daily living, and a mild impairment in the domains of social functioning, concentration, persistence & pace, and adaptation as a result of accident-related impairments. It supports these conclusions through the reports of psychiatrist Dr. Sivasubramanian, whose report was based on a medical file review and interview & assessment with the applicant. Dr. Sivasubramanian relies heavily on the OT Assessments of Joan Saunders in determining the level of functional impairment.
37In making its case on causation, the respondent argues that the 5-year time gap between the accident and the onset of significant symptoms breaks the causal link between the accident and the applicant’s functional impairments. It argues that during this time, the applicant continued to function relatively well, continuing to receive strong grades in school, landing an internship at a prominent law firm for which she receives a strong performance report and subsequent articling position, winning awards at school (such as the Osgoode Internship Award), travelling extensively to Uganda, Cuba, and around the USA & Canada, starting a new relationship, and chairing an academic conference. It relies on the applicant’s self-reporting as well as records from Osgoode Law School and social media in order to corroborate this timeline.
38Furthermore, the respondent argues that the applicant’s failure to raise accident-related concerns with her family doctor for almost 2-years after her initial post-accident visit diminishes the likelihood of a causal link, arguing that if the impairments were as significant as argued, there would be more frequent doctor’s visits. All of these factors lead the respondent to argue that the applicant’s current condition is more likely explained by other factors in the applicant’s life, including a history of family conflict (including corporal punishment), an ADHD diagnosis, and findings of pre-accident OCD symptoms, rather than the accident.
39I find that the applicant has not met her onus in demonstrating that her accident-related impairments would not have been present but for the subject motor vehicle accident. In determining causation, I have applied the “but for” test in Sabadash. The “but for” test requires me to weigh the question of causation on the balance of probabilities. In this particular case, given the timeline of events I cannot conclude that the applicant’s accident-related functional impairments would not have been present “but for” the accident.
40In my view, even if I accept the applicant’s admission into CAMH as the definitive collapse of her functioning, this event took place in February 2021, more than 4-years post-accident. During the intervening period, her activities do not suggest someone who is catastrophically impaired or rapidly deteriorating towards such a state. In fact, it is quite the opposite. Rather than the records showing a progressive deterioration, we see an applicant continuing to succeed in school, work, and extracurriculars for several years after the accident. I am unable to make a finding of a causal link between the applicant’s lack of functioning and the accident because, in my view, during the 4-year period after the accident she continued to function and did not seek treatment for accident-related injuries or impairments. Of significance, the contemporaneous CNRs from the family doctor do not document a functional decline related to the accident. Because of these factors, I am unable, based on a balance of probabilities, to conclude that the applicant’s impairments would not have been present “but for” the accident.
41I do not accept the applicant’s argument that a lack of any other intervening event should serve as proof of the causal link. It is the applicant’s onus to prove that the impairments would not be present “but for” the accident, not the respondent’s duty to prove that they would not be present “but for” some other event. As I have already outlined above, I am not satisfied that this onus has been met given the significant time gap present between the accident and the severe symptoms and her high level of functioning and lack of seeking treatment during the intervening period. While Dr. Gerber made the case that it is not unusual for depression to manifest years after an event, I was not directed or pointed to any evidence which explained why the applicant’s PTSD, somatic symptom disorder, or post-concussion syndrome would not have presented sooner. This delay in the onset of symptoms reduces any potential causal link. As noted above, there is a relevant and significant lack of reporting of sustained and serious symptoms and seeking of treatment related to these diagnoses in the family doctor records. Instead, the notes of reported pain do not appear until two years post-accident and are varied in severity and prognosis. Moreover, the notes on anxiety and focus remain largely detached from the subject accident, with focus instead on the applicant’s newly diagnosed ADHD and history of family conflict. While I did consider whether the applicant could meet the definition under criterion 8 solely on the basis of her diagnosis of major depressive disorder (given Dr. Gerber’s evidence that it is not unusual for this to appear years after a traumatic event) I found that I was not convinced of the causal link to the accident given, again, the lack of a chain of sustained complaints in this regard before the events of 2021.
42Given that I find that the applicant has not met her onus in proving that she would not have suffered her current impairments “but for” the subject motor vehicle accident, I find that the applicant has not met the definition of being catastrophically impaired under criterion 8.
43Despite my finding above that the applicant is not catastrophically impaired on the question of causation alone, for completeness sake I note that on question (3) regarding whether the impairments rise to the level of “marked”, I would still not have found the applicant to be catastrophically impaired because I find that the applicant’s functional impairments do not rise to the level of severity required for a “marked” impairment in the sphere of “social functioning” or “adaptation”. My findings here, while again pointing to the issue of causation, are based largely on the inconsistencies in the applicant’s level of function found throughout the records.
i. In the sphere of “social functioning”, I find that the applicant’s reports of being unable to maintain healthy relationships post-accident are inconsistent with other records. I see in various records that the applicant continued at school, participated in conferences, received a positive work review at Davies, travelled around the world (including to Uganda), and started a relationship. While she may have experienced some challenges in all of these activities, her ability to participate in all of them does not suggest to me someone who is significantly impeded in useful functioning in the area of social functioning.
ii. In the sphere of “adaptation”, I find that the applicant’s reports of deterioration in her ability to cope with stressors such as school, work, and self-care are inconsistent with the applicant’s trajectory post-accident. For almost four years post-accident she is engaging in activities that suggest a reasonable ability to adapt and manage stressors. She continues to study and receives good grades, completes a summer internship with good reviews, chairs a conference, and travels on a human rights mission to Uganda. None of these activities, which required sustained ability to adapt, suggest an applicant that is significantly impeded in useful functioning in the area of adaptation.
44Accordingly, these factors do not suggest to me that the applicant’s functional impairments rise to the level of “marked” impairment in the areas of “social functioning” and “adaptation”. Were they more severe, I would have expected to see a more sustained record of complaints to the family doctor during the years following the accident. Without a “marked impairment” in these two areas, I find that the applicant does not meet the definition of being catastrophically impaired under criterion 8.
The applicant is entitled to the proposed catastrophic impairment assessments
45I find that the applicant is entitled to the proposed catastrophic impairment assessments because I find that there is a reasonable basis to investigate the potential that the applicant has a catastrophic impairment.
46Section 25(1)(5) of the Schedule provides that the respondent shall pay for the reasonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment necessary for that purpose. Section 25(5)(a) provides the respondent is not liable to pay more than $2,000.00 plus HST for fees and expenses for conducting nay one assessment or examination and the preparing of the related report.
47The applicant bears the onus of proving on a balance of probabilities that the claimed assessments are reasonable and necessary. In order to do so, an applicant should establish that the assessment goals are reasonable and that the overall cost of achieving the goals is reasonable.
48The applicant argued that based on her current level of impairment and functioning, she required an assessment to determine whether she was impaired under criterion 6, 7, and/or 8. In order to make these determinations, she argued that an assessment by an orthopaedic surgeon, an OT, and a psychiatrist were required in order to adequately assess these criteria. She argued that the costs associated were reasonable, in line with typical CAT assessments under these criteria, and were consistent with rates set out in section 25(5).
49The respondent argued that the proposed assessments were not reasonable and necessary given that s.44 assessments had concluded that there was insufficient evidence suggesting that the subject motor vehicle caused the applicant’s impairments. It argued that a medical review of the applicant’s file did not provide sufficient records to support a catastrophic impairment assessment.
50I find that the proposed catastrophic impairment assessments are reasonable and necessary because I find reasonable basis to suggest that the applicant may have sustained a catastrophic impairment. Despite my conclusion above that the applicant has not met her onus in proving on a balance of probabilities that her impairments would not be present but for the subject motor vehicle accident, I do find that there is sufficient evidence to merit further exploration of this issue. The applicant’s admission to CAMH and Homewood alone suggests major and sudden psychiatric symptoms that merit further exploration given the potential link to a previous traumatic event (i.e. the accident). Given this fact, I find that there is a reasonable basis for conducting catastrophic impairment assessments and I find that the costs are reasonable because they fall within Schedule guidelines.
The applicant is partially entitled to some of the treatment plans proposed by Okell Rehabilitation Support Inc.
51I find that the applicant is partially entitled to some of the treatment plans proposed by Okell Rehabilitation Support Inc.
52The issues in dispute are medical and rehabilitation benefits. Sections 14 and 15 of the Schedule state that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident. Section 16(1) of the Schedule provides that the insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subjection (3) for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitation the person’s reintegration into her family, the rest of society, or the labour market.
53Section 20(1) of the Schedule states that no medical or rehabilitation benefit is payable for expenses occurred more than 260 weeks after the accident unless the applicant is deemed to have sustained a catastrophic impairment as a result of the accident.
54The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.
Issue iii(a)
55I find that the applicant is entitled to $3,791.00 for OT services proposed in a treatment plan dated June 30, 2021 because I find the goals and costs to be reasonable and necessary.
56The applicant submits that these OT sessions are necessary to provide the applicant with training, motor and living skills. The remaining costs are for documentation, OT progress reports, and travel (if necessary). The applicant supported the reasonableness and necessity of this treatment plan with reference to the OT Progress Reports of Okell Rehabilitation Support Inc., which argued that ongoing OT services were necessary to support the client with developing a healthy routine, support her return to school, explore leisure activities, and monitor mood.
57The respondent submits that the applicant’s psychological injuries are not accident-related and her physical injuries are minor in nature and therefore fall within the scope of the minor injury guideline (“MIG”). It supported its position with reference to the psychological reports of Dr. MacKay, who opined that she did not have “sufficient reliable and valid information from which to provide a reliable and valid accident-related DSM diagnosis”.
58I find that the applicant is entitled to the proposed OT sessions because I find that they are reasonable in cost and goals and that the goals are being met to a reasonable degree. The various OT reports of OTs Bergart, Marshall, Snow, Yegendorf, and Saunders documented a degree of functional impairment that the applicant was experiencing in the years following the accident related to ongoing accident-related physical pain symptoms, as opposed to psychological concerns. The OT Progress Reports from Okell document goals for the applicant (such as supporting her ongoing education), which is a reasonable and admirable goal given the applicant’s background and desire to keep her on her vocational track. The OTs have documented the significant support they have provided in this regard thus far to assist the applicant in achieving this goal. Moreover, given that the initial reason for denying this treatment plan – that the applicant’s injuries fall under the MIG – I find reasonable grounds to grant entitlement given that the applicant was removed from the MIG on November 7, 2023. For all of these reasons, I find that the proposed treatment plan is reasonable and necessary.
Issues iii(b & c)
59I find that the applicant is entitled to $4,140.25 for OT services and $5,692.09 for assistive devices proposed in a treatment plans dated October 13, 2020 because I find the costs and goals to be reasonable and necessary.
60On these two OCF-18s, which the respondent considered through the same IEs, the applicant argued as follows:
i. ii(b): The applicant submits that these OT sessions are necessary to provide the applicant with training and motor functions. The remaining costs are for documentation, OT progress reports, and travel (if necessary). This treatment plan was supported by the OT Progress Reports of Okell Rehabilitation Support Inc., which recommended that ongoing OT services were necessary to support the client with developing a healthy routine, support her return to school, explore leisure activities, and monitor mood, based on observations of the OT.
ii. ii(c): The applicant submits that this assistive devices treatment plan is necessary to provide the applicant with a razor extension handle, a long handle bath sponge, a comfortable seating surface, an electric standing desk, an ergonomic keyboard, mouse & housekeeping tools, an anti-fatigue mat, a supportive mattress, a heating pad, and an electric chopper. The remaining costs are for documentation. These recommendations were supported by the OT Progress Reports of Okell Rehabilitation Support Inc., as well as the OT Functional Assessment Report of OT Schwartz, who recommended that: (1) a razor extension handle was necessary to facilitate shaving with minimal bending; (2) a long handle bath sponge was necessary to limit bending; (3) a comfortable seating surface was needed to improve sitting tolerance at work; (4) an electric standing desk was needed to allow the applicant to change positions due to her limited sitting and standing tolerances; (5) an ergonomic keyboard and mouse were needed to ensure optimal positioning and minimize additional stressors on her shoulders; (6) ergonomic tools were needed to assist with housekeeping chores and promote independence; (7) an anti-fatigue mat was needed to assist with standing in the kitchen; (8) a supportive mattress to enable the applicant to sleep in her own room rather than in the living room; (9) a heating pad was recommended to provide pain relief; and (10) an electric chopper was needed to assist with chopping and facilitate kitchen independence.
61The respondent argued that the applicant’s psychological injuries are not accident-related, and her physical injuries do not merit the recommended treatment. It supported its findings based on the IE reports of Dr. Yee and Dr. Sivasubramanian. Dr. Yee, specifically, opined that the applicant had a “soft tissue injury predominantly in the cervical and thoracolumbar spine and left shoulder muscle girdle” but that she retained “functional range of motion” and had no “active radiculopathy or myelopathy”. It argued that none of the accident-related physical limitations merited the degree of occupational therapy support or assistive devices recommended.
62I find that the applicant is entitled to the proposed OT treatment plans and associated assistive devices because they are reasonable in costs and goals and the goals are being met to a reasonable degree. On the proposed OT sessions, I find as I did above that the goals of these sessions, as documented in the OT Progress Reports of Okell, are reasonable in assisting the applicant return to a better quality of life and pursue her vocational interests, despite her physical pain related challenges post-accident. I find that ongoing sessions of this nature could assist the applicant in achieving her quality-of-life goals because the offer tools to support those goals. The various assistive devices, all designed to reduce pain and facilitate participation in activities of daily living are reasonable and necessary items to help facilitate the accomplishment of her goals. For example, an ergonomic desk, mouse and keyboard can all assist her in pursuing her ongoing educational pursuits, assisting in her rehabilitation from accident-related physical impairments. As such, I find on a balance of probabilities that the applicant is entitled to both of the treatment plans in dispute.
Issues iii(d, e, f, & g)
63I find that the applicant is not entitled to the proposed OT services, assistive devices, and social rehab counselling proposed in the treatment plans listed as items iii(d, e, f, & g) because more than 260-weeks have elapsed since the accident and the applicant was not deemed catastrophically impaired.
64On these issues, the applicant argued the following:
i. ii(d): The applicant argued that these OT sessions are necessary in order to provide the applicant with training, motor, and living skills, along with several assistive devices such as an ergonomic backpack, hands-free dog leash, and a daily/monthly planner book. The remaining costs are for documentation, OT progress reports, and travel (if necessary). Similar to item iii(a), this treatment plan was supported by the OT Progress Reports of Okell Rehabilitation Support Inc., which recommended ongoing OT services to support the client and specifically recommended (1) an ergonomic backpack to reduce strain on neck, shoulders, and lower back and enable transport of supplies to school; (2) a hands-free dog leash to enable the client to walk her dog without straining her neck/shoulder and left upper extremity; and (3) planning books to assist her in planning her days and supporting daily functioning, based on the OT observations.
ii. ii(e): The applicant argued that these OT sessions are necessary in order to provide the applicant with training, motor and living skills, along with several assistive devices such as a tub transfer bench, a hands-free dog leash, and a daily/monthly planner book. The remaining costs are for documentation, OT progress reports, and travel (if necessary). Similar to item iii(b), this treatment plan was supported by the OT progress Reports of Okell Rehabilitation Support Inc., which recommended ongoing OT support, the assistive devices already mentioned, in addition to a tub transfer bench to address reduced standing and functional tolerances, based on the OT’s observations.
iii. ii(f): The applicant argued that this treatment plan for coloured reading sheets and a 1-year YMCA membership is reasonable and necessary. The remaining costs are for documentation. This treatment plan was supported by the OT Progress Reports of Okell Rehabilitation Support Inc., recommended: (1) coloured reading sheets to assist the applicant with reading comprehension by improving clarity, eye movement control, ease of concentration, and comfort; and (2) a gym membership to enable daily exercise and address her biopsychosocial symptoms based on observations of the client.
iv. ii (g):The applicant argued that this social rehab counselling session is necessary in order to provide the applicant with counselling and mental health support. The remaining costs are for documentation, OT progress reports, and travel (if necessary). This treatment plan was supported by the OT Progress Reports of Okell Rehabilitation Support Inc., which argued that social work treatment could assist the applicant with managing her persistent low mood, anxiety, decreased motivation, grief, and tearfulness connected with her accident-related mental health diagnoses.
65The respondent argued the OCF-18s were all submitted past the 260-week mark outlined in s. 20(1) of the Schedule, meaning that no medical or rehabilitation benefit is payable unless the applicant suffers a catastrophic impairment.
66I find that that the applicant is not entitled to the proposed treatment plans because more than 260-weeks have elapsed since the accident and I have not found the applicant to be catastrophically impaired, meaning no medical or rehabilitation benefit are payable. The applicant made no submissions on the 260-week time period.
The applicant is not entitled to the treatment plans (iv(a) & iv(b)) proposed by Anchor Rehabilitation Support Services Inc.
67I find that the applicant is not entitled to the treatment plans proposed by Anchor Rehabilitation Support Services Inc., because more than 260-weeks have elapsed since the accident and the applicant was not deemed catastrophically impaired.
68The test for entitlement is the same as above.
69On both OCF-18s for rehabilitation support, the applicant argued that support from a rehab support worker was reasonable and necessary to assist with her training and learning on cognition and working through activities recommended by OTs and other health professionals. The remaining costs are for documentation, progress reports, and travel. This was supported by the OT Progress Reports of Okell Rehabilitation Support Inc., which recommended continued rehabilitation support worker support to provide motivation, encouragement, and assist the applicant in implementing therapeutic activities into her routine.
70The respondent argued the OCF-18s were both submitted past the 260-week mark outlined in s. 20(1) of the Schedule, meaning that no medical or rehabilitation benefit is payable unless the applicant suffers a catastrophic impairment.
71I find that that the applicant is not entitled to the proposed treatment plans because more than 260-weeks have elapsed since the accident and I have not found the applicant to be catastrophically impaired, meaning no medical or rehabilitation benefit are payable. The applicant made no submissions on the 260-week time period.
The applicant is not entitled to the proposed psychological therapy services
72I find that the applicant is not entitled to the proposed psychological therapy services because, as set out above, I am not satisfied of a causal link between the accident and the applicant’s psychological impairments.
73The test for entitlement is the same as above.
74The applicant argued that this treatment plan is reasonable given her ongoing psychological issues experienced as a result of the accident. The plan recommended individual psychological treatment, consultation, ongoing progress review, testing, and educational materials (along with regular documentation fees). The necessity of this treatment was supported through the reports of psychologists, like Dr. Gerber, and the progress reports of various OTs.
75The respondent argued that the applicant’s psychological impairments are not accident-related, meaning that psychological services are unnecessary at this time. It supported this position with reference to the reports of Dr. MacKay, who found that she did not have “reliable and valid information from which to provide a reliable and valid accident-related DSM diagnosis” and that it was her “considered opinion that the documentation provided […] does not support that Ms. Grewal’s mental health problems are the direct result of the index motor vehicle accident.”
76I find that that the applicant is not entitled to the proposed psychological services. For similar reasons to my decision on the applicant’s claim for catastrophic impairment, I am not satisfied that the applicant has met her onus in demonstrating that her psychological impairments would not have been present “but for” the subject motor vehicle accident. With this broken chain of events, punctured by periods of academic and career success, I find that the applicant has not met her onus here of demonstrating that proposed psychological services are reasonable and necessary given the weak causal relationship between the accident and her psychological complaints, as documented in the applicant’s family doctor CNRs and the reports of Drs. MacKay and Sivasubramanian.
The applicant is entitled to the proposed psychological assessment
77I find that the applicant is entitled to $2,200.00 for a proposed psychological assessment the proposed psychological assessment in a treatment plan dated October 22, 2019, because I find reasonable grounds for further investigation of the applicant’s psychological condition.
78Section 25(1)(3) states than an insurer shall pay for all reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan under section 38, including any assessment or examination necessary for that purpose. The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds in which to believe that a condition exists that would warrant further investigation by way of an assessment. Section 25(5)(a) states that an assessment shall not exceed $2,000.00 plus applicable harmonized sales tax.
79The applicant argued that she is entitled to a psychological assessment to investigate the applicant’s psychological needs and help her overcome the difficulties she currently faces with her mental health as a result of the accident. The request was supported by the OCF-18, prepared by Dr. Akram-Pall, who argued that based on a 30-minute screening interview over the phone the applicant has significant mental health concerns to warrant a further investigation. The cost would cover an assessment and documentation.
80The respondent argued that the proposed assessment is not reasonable and necessary because: (1) it believed that the applicant’s injuries were predominantly minor and therefore this assessment was not necessary; and (2) it did not find a causal link between the accident and the applicant’s psychological impairments. It supported it’s view via the reports of Dr. MacKay, who opined on the lack of causal linkage between the accident and the applicant’s psychological condition.
81I find that the applicant is entitled to $2,200.00 for a psychological assessment because I find sufficient grounds for further investigation based on the applicant’s psychological concerns. While the records of anxiety in the family doctor CNRs are not directly connected to the applicant’s accident, they do present themselves in the years following the accident, meriting an opportunity for both the insurer and the insured to seek further assessment to determine their causation. Even while finding that the applicant has not met her onus in demonstrating that her psychological impairments would not have been present “but for” the subject accident, I do find that there are reasonable grounds for further investigation, given the complexity of this topic. Given the costs fall within reasonable guidelines, I find on a balance of probabilities that the applicant is entitled to this assessment.
The applicant is not entitled to the proposed living accommodations
82I find that the applicant is not entitled to the proposed living accommodations because of her failure to submit an OCF-18 before incurring the expense, therefore triggering the consequences of s.38(2) of the Schedule.
83As set out above, pursuant to s.15(1) and 16(1) of the Schedule the insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person for medical and rehabilitation benefits.
84Section 38(2) states that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit that was incurred before the insured person submits a treatment and assessment plan (OCF-18), unless: (a) the insurer gives the insured person notice stating that it will pay the expense; (b) the expense is for an ambulance or other goods and services provided on an emergency basis not more than five business days after the accident; (c) the expense is reasonable and necessary as a result of the important for drugs or goods listed with a cost of $250 or less per item; or (d) the insurer agrees that the expense is essential for goods or services listed with a cost of $250 or less.
85The applicant argued that her in-patient stay at Homewood was necessary to address her ongoing accident-related mental health challenges. She supported this position with reference to the records of Homewood and CAMH, as well as notes from Dr. Gerber’s report which addressed the causation of her mental health challenges. No OCF-6 was admitted as evidence to itemize the costs.
86The respondent argued that the OCF-6 was not payable because s.38(2) of the Schedule indicates that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan. They further note that no OCF-18 was submitted, nor was this requirement waived.
87I find that the applicant is not entitled to the proposed invoice amount from Homewood. I agree with the respondent that no OCF-18 was submitted prior to incurring the cost at Homewood. This triggers the consequences under s.38(2) meaning that the insurer is not liable to pay the expenses. None of the exceptions under s.38(2)(a-d) are applicable in this case given that not prior notice of approval was provided, the expenses were incurred more than five business days after the accident, the expenses were not for medications, and the expenses exceeded $250. Therefore, I find that the applicant is not entitled to the proposed invoice.
The applicant is not entitled to an award
88I find that the applicant is not entitled to an award because I was not persuaded of evidence that the respondent acted unreasonably or withheld or delayed the payment of benefits.
89The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
90The applicant argued that she was owed an award because the insurer: (1) breached s.33(2) of the Schedule by failing to provide proper forms to the applicant; (2) that the respondent relied on reasons beyond its denial letters in denying the applicant’s various claims; and (3) that the Tribunal should draw an adverse inference from the adjuster’s failure to appear to testify. She pointed the Tribunal to a decision of the Ontario Financial Services Commission Liberty Mutual Insurance Company v. Molly R. Persofsky, 2003 ONFCDRS 9 in laying out the test the Tribunal should consider when determining a special award. No submissions were made on the quantum of the award.
91The respondent argued that no award is owed because the applicant failed to provide particulars for the award in advance.
92I find that the applicant has not met her onus in demonstrating that an award is payable. The CCRO clearly indicated that the applicant was to provide particulars for an award claim upon receipt of the adjuster’s log notes. Despite the applicant’s indication that particulars were provided, I saw no evidence of this in the exhibits. This means that the respondent did not know the case to be met. Further, even assuming that a proper summons was issued directly to the adjuster (which I found wasn’t the case here), there still would have been little basis for calling the adjuster to testify. As such, I find no adverse inference should be drawn here. Furthermore, without particulars I find that the submissions of the applicant lack sufficient detail to meet her onus in demonstrating that the respondent unreasonably withheld or delayed payments. As such, I find on a balance of probabilities that an award claim is not merited here.
Interest
93Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
94In this case, interest applies to any overdue benefits for issues ii, iii(a), iii(b), iii(c), and vi.
ORDER
95I order the following:
i. The applicant is not deemed catastrophically impaired.
ii. The applicant is entitled to the following treatment plans and associated interest:
a) $13,440.00 for catastrophic impairment assessments, in a treatment plan dated February 17, 2021.
b) $3,791.00 for OT services in a treatment plan dated June 30, 2021.
c) $4,140.25 for OT services in a treatment plan dated October 13, 2020.
d) $5,692.09 for assistive devices in a treatment plan dated October 13, 2020.
e) $2,200.00 for a psychological assessment in a treatment plan dated October 22, 2019.
iii. The applicant is not entitled to the proposed treatment plans submitted by Okell Rehabilitation Support Inc., after the 260-week mark; to the treatment plans submitted by Anchor Rehabilitation Support Services; or to the proposed psychological therapy services.
iv. The applicant is not entitled to the living accommodations cost proposed by Homewood Accommodations.
v. The applicant is not entitled to an award.
Released: October 17, 2025
Jeremy A. Roberts
Vice-Chair