Licence Appeal Tribunal File Number: 24-012694/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:
Heather Pearce
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Savannah Chorney, Counsel
Melissa Sidhu, Counsel
For the Respondent:
Gurpreet Singh, Counsel
Farzana Merchant, Counsel
Heard by Videoconference:
July 28 - August 6, 2025
OVERVIEW
1Heather Pearce, the applicant, was involved in an automobile accident on May 1, 2022, 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 Unifund Assurance Company, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The respondent made a request to exclude the applicant’s two lay witnesses on the ground that the applicant did not provide a sufficient summary of the witness testimony as required by Rule 9.4.3 of the Licence Appeal Tribunal Rules, 2023. It submitted that allowing this testimony would be procedurally unfair because it did not have a reasonable opportunity to prepare for these witnesses.
3The applicant submitted that her summary of witness testimony is not deficient.
4The respondent received the witness list and summaries on or about June 9, 2025. The Tribunal asked the respondent to explain why this was being brought up at the start of the hearing. If the information was insufficient, it could have requested further particulars well before the hearing rather than seek to exclude the applicant’s witnesses at the start of the hearing. The respondent then suggested that it be given a few minutes to prepare prior to cross examining the witnesses. I allowed this request as it insured a reasonable opportunity for the respondent to prepare for questioning the lay witnesses.
ISSUES
5The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from May 28, 2022, to April 30, 2024?
iii. Is the applicant entitled to attendant care benefits in the amount of $1,209.26 per month from May 13, 2024, to date and ongoing?
iv. Is the applicant entitled to $3,944.83 for physiotherapy services, proposed by Spine Health Care Clinic in a treatment plan/OCF-18 (“plan”) dated January 23, 2023?
v. Is the applicant entitled to $5,156.19 for occupational therapy services, proposed by Spine Health Care Clinic in a treatment plan dated February 3, 2023?
vi. Is the applicant entitled to $5,283.88 for physiotherapy services, proposed by Spine Health Care Clinic in a treatment plan dated May 2, 2023?
vii. Is the applicant entitled to $3,926.75 for other goods and services, proposed by Spine Health Care Clinic in a treatment plan dated June 2, 2023?
viii. Is the applicant entitled to $3,944.83 for physiotherapy services, proposed by Spine Health Care Clinic in a treatment plan dated July 4, 2023?
ix. Is the applicant entitled to $3,944.83 for physiotherapy services, proposed by Spine Health Care Clinic in a treatment plan dated August 17, 2023?
x. Is the applicant entitled to $1,831.07 ($4,766.88 less $2,697.77 approved) for psychological services, proposed by Spine Health Care Clinic in a treatment plan dated August 10, 2023?
xi. Is the applicant entitled to $5,390.10 for physiotherapy services, proposed by Spine Health Care Clinic in a treatment plan dated August 30, 2023?
xii. Is the applicant entitled to $4,638.55 for physiotherapy services, proposed by Spine Health Care Clinic in a treatment plan dated December 1, 2023?
xiii. Is the applicant entitled to $4,086.08 for physiotherapy services, proposed by Spine Health Care Clinic in a treatment plan dated December 11, 2023?
xiv. Is the applicant entitled to $4,325.64 for psychological services, proposed by Spine Health Care Clinic in a treatment plan dated December 11, 2023?
xv. Is the applicant entitled to $3,329.40 for other goods and services, proposed by Spine Health Care Clinic in a treatment plan August 14, 2023?
xvi. Is the applicant entitled to $4,586.33 for physiotherapy services, proposed by Spine Health Care Clinic in a treatment plan dated February 23, 2024?
xvii. Is the applicant entitled to $4,395.70 for physiotherapy services, proposed by Spine Health Care Clinic in a treatment plan dated February 23, 2024?
xviii. Is the applicant entitled to $4,407.00 for other goods and services, proposed by Spine Health Care Clinic in a treatment plan dated March 6, 2024?
xix. Is the applicant entitled to $4,839.05 for other goods and services, proposed by Spine Health Care Clinic in a treatment plan dated May 23, 2024?
xx. Is the applicant entitled to $4,086.08 for physiotherapy services, proposed by Spine Health Care Clinic in a treatment plan dated May 23. 2024?
xxi. Is the applicant entitled to $4,086.08 for physiotherapy services, proposed by Spine Health Care Clinic in a treatment plan dated May 22, 2024?
xxii. Is the applicant entitled to $5.946.05 for other goods and services, proposed by Spine Health Care Clinic in a treatment plan dated August 2, 2024?
xxiii. Is the applicant entitled to $6,586.99 for other goods and services, proposed by Spine Health Care Clinic in a treatment plan dated August 2, 2024?
xxiv. Is the applicant entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from May 1, 2022 to date and ongoing?
xxv. Is the applicant entitled to $3,616.00 for psychological services, proposed by Spine Health Care Clinic in a treatment plan dated January 24, 2023?
xxvi. Is the applicant entitled to $3,326.00 for physiatry assessment, proposed by Spine Health Care Clinic in a treatment plan dated February 27, 2023?
xxvii. Is the applicant entitled to $2,337.05 for naturopathic assessment, proposed by Spine Health Care Clinic in a treatment plan dated March 8, 2023?
xxviii. Is the applicant entitled to $2,075.00 for MRI assessment, proposed by MRI Marketing and Business Development in a treatment plan dated January 30, 2024?
xxix. Is the applicant entitled to $113.28 ($2,269.89 less 42,156.61 approved) for in-home assessment, proposed by Spine Health Care Clinic in a treatment plan dated September 18, 2023?
xxx. Is the applicant entitled to $950.00 for bone density assessment, proposed by Spine Health Care Clinic in a treatment plan dated October 20, 2023?
xxxi. Is the applicant entitled to $2,935.46 for in-home assessment, proposed by Spine Health Care Clinic in a treatment plan dated January 18, 2023?
xxxii. Is the applicant entitled to $19, 657.50 ($31,357.50 less $11,700.00 approved) for catastrophic assessments proposed by Spine Health Care Clinic in a treatment plan May 27, 2024?
xxxiii. Is the applicant entitled to $3,164.00 for chronic pain assessment, proposed by Spine Health Care Clinic in a treatment plan dated October 9, 2024?
xxxiv. Is the applicant entitled to $1,503.86 ($4,915.50 less $3,411.61 approved) for psychological services, proposed by Spine Health Care Clinic in a treatment plan dated October 15, 2024?
xxxv. Is the applicant entitled to interest on any overdue payment of benefits?
6The applicant advised at the start of the hearing that she was withdrawing issues 6, 8, 14, 15, 16, 20, 25, 33, 40, 41, 42, 46, 47, 48, and 49 as listed in the case conference order dated March 5, 2025.
RESULT
7The applicant is not catastrophically impaired.
8She is not entitled to housekeeping, a non-earner benefit, the attendant care benefit, the treatment plans, nor interest.
9This application is dismissed.
ANALYSIS
Catastrophic Impairment – Criterion 7
10I find that the applicant is not catastrophically impaired under Criterion 7.
11A catastrophic impairment under Criterion 7 results when, as a result of an accident, an insured person sustains a mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating scheme in Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008 (“Guides 6th edition”), where the impairment score is combined with a physical impairment rating from Criterion 6, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”), and results in a 55% or more Whole Person Impairment (WPI) rating.
12The medical reports in evidence provide the following WPI ratings for physical and mental/behavioural impairments:
| Impairment and applicable Guides reference | Applicant’s Ratings | Respondent’s Ratings |
|---|---|---|
| Headache Ch. 4, Table 23 |
10% | |
| Cervical spine Ch. 3, 3.3h |
15% | 5% |
| Thoracic spine Ch.3, 3.3i |
5% | 5% |
| Lumbar spine Ch. 3, 3.3g |
10% | 5% |
| Upper extremity Shoulder | 3% | 11% |
| Lower extremity | 15% | 8% + 2% |
| Medication | 3% | 3% |
| Mental and Behavioural Ch 14, Guides 6th |
20% | 10% |
| Total:* | 60% | 41% |
*Using the combined values chart in the Guides
Headaches
13I find that the applicant does not have a ratable impairment for headaches.
14The applicant argues that she has a well documented history of post-accident headaches. In light of this evidence, she submits that it is appropriate to rate her headaches under Table 9 in Chapter 4 of the Guides.
15The respondent submits that there is no evidence of the accident causing an injury to the occipital nerves which is the basis for the WPI rating for headaches. It argues that no rating should be given for headaches.
16The s. 25 Executive Summary Report, dated October 29, 2024, by Dr. Stephen James, anesthesiologist, and Dr. Darren Hylton, chiropractor, provide a 10% WPI rating for headaches. Dr. Hylton testified that this rating is for occipital neuralgia. He opined that this condition causes the applicant to experience headaches which they rated under Table 23 of Chapter 4 from the Guides.
17The applicant was diagnosed with occipital neuralgia by Dr. Khodabandehloo, orthopaedic surgeon, in two reports dated August 23 and September 20, 2023. However, the applicant has not cited evidence showing her occipital nerves were injured in the accident. As such, I find that that she has not established that this condition was caused by the accident.
18Even if the applicant could establish causation, which she has not, I still would not accept Dr. Hylton’s rating for headaches. Table 23 rates impairments of the spinal nerves in the head and neck region due to sensory abnormalities or loss of strength. Assessors identify the area of involvement and select the applicable percentage rating under Table 23. For sensory impairments, the severity of the impairment is considered under Table 20 in Chapter 4 to determine the percentage of sensory impairment. The final step is multiplying the percentages from Table 23 and 20 to determine the WPI rating.
19Dr. Hylton provides a 10% WPI rating for headaches in his report, but gives no other information. In testimony, he did not explain how he arrived at this rating. This is significant because Table 23 ratings are complex and cannot be understood without some explanation. Dr. Hylton makes no reference to Table 20 in his report, nor in his testimony. Given these circumstances, there is no indication of how or even if Table 20 was considered. Consequently, I give no weight to this rating because the manner in which it was formulated is unknown.
20The applicant asked me to rate her headaches according to Table 9 in Chapter 4 of the Guides. This section deals with cranial nerves causing neuralgic facial pain. She has not pointed to any evidence of pain related facial neuralgia. As such, an impairment rating under Table 9 cannot be made.
21For all these reasons, I find that the applicant has not established that her headaches are rateable.
Cervical spine
22I find that the applicant has a 5% WPI rating for the cervical spine.
23The spine may be rated using the Diagnosis Related Estimates (DRE) model which considers objective clinical findings to rate impairment of the spine.
24The applicant relies on the Executive Summary of Dr. James and Dr. Hylton that found she has a DRE-III injury to her cervical spine rated at 15% WPI. She submits that her cervical spine injury has radiculopathy and that this is noted in the clinical notes and records of Dr. Paupst and Dr. Ifill, family doctors, and in two MRIs confirming stenosis in the cervical spine. In her view, this evidence justifies the DRE-III 15% WPI rating.
25The respondent argues that there is no evidence of radiculopathy and that the DRE-II rating of 5% WPI found in s. 44 report of Dr. Oleg Safir, orthopaedic surgeon, dated March 20, 2025 is appropriate.
26The MRIs dated July 19, 2022 and March 14, 2024 confirm she has cervical spinal stenosis, but there are no findings on radicular pain. As such, the MRIs are not evidence of radicular pain.
27There is evidence that the applicant has been diagnosed with radicular pain. For example, the clinical note of Dr. Ifill from February 13, 2024 states that she has been diagnosed of cervical disc disease with radiculopathy. While this evidence shows that that applicant has radicular symptoms, these symptoms are attributed to a degenerative condition and not the accident.
28Dr. James’ report, dated March 20, 2024, notes neck pain associated with sensory disturbances such as numbness, tingling, and pins and needles. It is possible that these are radicular symptoms, however, the report does not diagnose radicular pain. I also note that Dr. James’ report states that the applicant displayed no muscle guarding and no detectible spasticity. This does not support the applicant’s position as muscle guarding and spasticity are indications of radiculopathy according to Table 71 of Chapter 3 of the Guides.
29Dr. Safir’s report confirms that the applicant has ongoing pain symptoms in her neck, but the physical examination did not reveal radicular pain.
30The clinical note of Dr. Ifill documents radicular pain but attributes it to cervical disc disease. The March 20, 2024 of Dr. James does not diagnose radicular symptoms. Instead, he makes observations which are not consistent with radiculopathy according to the Guides. Dr. Safir, the physician who examined the applicant most recently, also does not diagnose her with radicular symptoms. Consequently, I find, on a balance of probabilities, that the applicant does not have radiculopathy in her cervical spine because the evidence is inconsistent in regard to radicular symptoms in her neck.
31Even if there was consistent evidence of radicular complaints, which there is not, this alone do not meet the requirements for a DRE-III 15% WPI rating. Page 104 of the Guides states that a 15% WPI rating requires:
significant signs of radiculopathy, such as (1) loss of relevant reflexes or (2) unilateral atrophy with greater than 2-cm decrease in circumference compared with the unaffected side, measured at the same distance above or below the elbow. The neurologic impairment may be verified by electrodiagnostic or other criteria.
32The applicant has not pointed to a loss of reflexes, atrophy, or other significant signs of radiculopathy. Consequently, I prefer Dr. Safir’s DRE-II 5% rating. His physical examination confirms ongoing pain complaints in the applicant’s neck which justifies this rating.
Thoracic spine
33I find that the injury to the applicant’s thoracic spine has a DRE-II impairment and is ratable at 5% WPI.
34The applicant made no submissions on this rating.
35The respondent submitted that the applicant’s raters, Dr. James and Dr. Hylton, and the respondent’s expert, Dr. Safir, agree on a DRE-II 5% WPI rating for the thoracic spine.
36The physical examination section of Dr. Safir’s report notes tenderness over the thoracolumbar paraspinal muscles bilaterally. The Executive Summary of Dr. James and Dr. Hylton rated the thoracic spine injury at a 5% WPI but provide no explanation for this rating.
37Dr. Safir’s physical examination found that the applicant has ongoing sprain and stain injuries in the Thoracic spine which are consistent with a DRE-II impairment. Consequently, I find that the applicant’s thoracic spine impairment is ratable at a 5% WPI.
Lumbar spine
38I find that the applicant has a DRE-II injury to her lumbar spine with a 5% WPI rating.
39The applicant submits that various medical reports and imaging establishes that she has an accident related injury in her lumbar spine with radiculopathy. In her view, a DRE-III 10% WPI rating is justified.
40The respondent disputes the applicant’s claim to radicular symptoms in her lumbar spine and argues that no rating should be made for the lumbar spine as this impairment is not permanent.
41The only report cited by the applicant that diagnoses her with radicular pain in the lumbar spine is the EMG test by Dr. Alison Chan, physiatrist. This report cannot be considered because the applicant did not enter it into evidence.
42The Executive Summary of Dr. James and Dr. Hylton describe the lumbar spine injury has having radiculopathy and rate it at a 10% WPI. The finding of radicular symptoms seems to be based on Dr. James’ “Chronic Pain Medicine Assessment.” The March 20, 2024 report by Dr. James notes tenderness in the lumbar spine which is consistent with a DRE-II impairment. He also notes no guarding and no detectable spasticity which does not support a finding of radicular symptoms.
43Dr. Safir’s report noted tenderness over the thoracolumbar paraspinal muscles bilaterally, which is consistent with a DRE-II impairment.
44Dr. Safir testified that the applicant’s lumbar spine improved in 2024. The respondent submits that this improvement establishes that this impairment is temporary, and therefore, is not a ratable impairment.
45I disagree. The lumbar spine continues to be tender and painful, and makes this an ongoing impairment over three years after the accident. This exceeds the two year requirement for establishing a permanent impairment. As well, I reject the respondent’s argument that improvements in 2024 will lead to the applicant being cured and have no ratable pain in the future because this argument is based on speculation.
46I find that the applicant has a DRE-II impairment of the lumbar spine which is rated at 5% WPI because the reports of Dr. Safir and Dr. James found that she continues to have tenderness in her lumbar spine. I give little weight to the 10% WPI rating in the Executive Summary by Dr. James and Dr. Hylton because they base their finding on a report that is not in evidence and cannot be considered by the Tribunal.
Upper extremity
47I find that the applicant’s upper extremity impairment is rated at 11%.
48The applicant made no submissions on the upper extremity.
49The respondent submits that the 3% WPI rating for the shoulder by Dr. Hylton and Dr. James cannot be accepted because the table used to make this rating is unknown and that the higher 11% WPI rating by Dr. Safir for upper extremities is preferable because the methodology used to make this rating is clear.
50I agree with the respondent. In testimony, Dr. Hylton made two attempts to identify the table he used to rate the shoulder. In both instances, the tables he referenced did not apply to the applicant’s shoulder injury. As a result, I give no weight to this rating because the manner in which the rating was made is unknown.
51Dr. Safir’s report documents the range of motion measurements he used to calculate the left shoulder impairment using figures in s. 3.1j of the Guides. The resulting 19% Upper Extremity rating that converts to an 11% WPI rating using Table 3 in Chapter 3. I accept this rating because the range of motion measurements align with the impairment ratings of the applicable figures in the Guides.
Lower extremity
52I find that the applicant has not established that she has a ratable lower extremity impairment.
53The applicant relies Dr. James and Dr. Hylton’s 15% WPI rating for gait derangement and submits that Dr. Safir incorrectly determined that the applicant only uses a cane for stability.
54The respondent argues that the applicant uses of a cane to ambulate because of a left knee meniscus tear and also because of the pain caused by her body weight bearing on her left knee, neither of which are not accident related. It further argues that Dr. Hylton’s finding of gait derangement is unreliable because the testing used to identify gait derangement is unknown. The respondent appears to be arguing that no rating should be given for the lower extremity.
55In the Executive Summary of Dr. James and Dr. Hylton, the applicant is noted as having a gait derangement. The Executive Summary references left knee osteoarthritis/post-traumatic arthralgia, but provides no explanation as to how the gait derangement was diagnosed or how they arrived at the 15% WPI rating for the lower extremities.
56Dr. Hylton testified that he used Table 36, Chapter 3 of the Guides to rate this impairment. He explained that he saw the applicant at the clinic where he works and noticed that she has a hip tilt caused by weak hip abductor muscles.
57The applicant asked me to review the Scarborough Health Network report from June 14, 2022 as it supports Dr. Hylton’s opinion. This is a hospital emergency room record. It confirms that the applicant reported that she began using a cane after the accident. However, it also states “…hip flexion power intact and symmetrically bilaterally…” This indicates that applicant did not have a hip tilt after the accident. There are also no pain complaints related to her hip abductor muscles.
58The applicant’s complaints of hip pain are mentioned in other reports, such as Dr. James’ Catastrophic Chronic Pain Assessment dated June 25, 2024 and Dr. Steiner’s Catastrophic Neuro-Psychological Assessment Report dated October 15, 2024. However, the hip pain is not diagnosed in these reports, and therefore, cannot be linked to the accident. The In-home Catastrophic Assessment dated July 16, 2024 of Amandeep Kaur, registered nurse, mentions mild greater trochanter bursitis, but causation is not discussed.
59Dr. Safir’s report provides measurements of the hip range of motion. The range of motion for her hips is symmetrical, with no tenderness over the hip area and impingement signs are negative bilaterally. These measurements and observations do not support the applicant’s position as there is no indication of hip tilt, nor pain or injury to her hip abductor muscles.
60I find the emergency room record and Dr. Safir’s report to be persuasive. The emergency room record and Dr. Safir’s report are contemporaneous with the physical examination of the applicant, and therefore, more reliable than Dr. Hylton’s recollection. Additionally, Dr. Safir’s conclusions are based on range of motion measurements, unlike Dr. Hylton’s opinion which is not supported by measurements. Having found that the emergency room record and Dr. Safir’s report are more reliable than Dr. Hylton’s recollection, I further find that there is insufficient evidence to establish, on a balance of probabilities, that the applicant’s hip abductors were injured in the accident and caused gait derangement.
61Even if there was clear evidence of injured or weakened hip abductors, I still would not accept Dr. Hylton’s 15% WPI rating. He made this rating under Table 36 of Chapter 3 in the Guides. This rating requires a positive Trendelenburg sign (hip tilt) and osteoarthritis of the hip. The applicant has not pointed to any evidence of osteoarthritis in her hip, and as such, did not address a mandatory component of Table 36. Consequently, a rating under this table cannot be made.
62Dr. Safir provided testimony on the range of motion limitations in the left knee. Her left leg extends up to 5 degrees away from full extension and has slightly decreased flexion. He rated this impairment at 8% WPI based on Table 41 of Chapter 3 of the Guides.
63Dr. Safir report states that the left knee was injured in the accident, but provides no other information or analysis on causation.
64At the hearing, he made references to arthritis in the applicant’s left knee, but gave no further insight into why he thinks the applicant’s left knee was injured in the accident. In my view, he did not address causation, and as such, I do not accept his 8% WPI rating under Table 41, Chapter 3.
65Dr. Safir rated the applicant’s left knee patellofemoral crepitus at 2% WPI. He has not identified which part of the Guides he used to make this rating. As such, I give no weight to this rating because there is no way to connect the rating to the Guides.
66Additionally, he testified that the crepitus is caused by arthritis. There is no evidence showing that the applicant’s arthritis was caused by the accident. Consequently, I also do not accept the rating for this impairment because the rating was made for a condition that is not accident related.
67The remaining ratings the applicant relies on total to a 41% WPI rating:
| Impairment | Rating |
|---|---|
| Cervical Spine | 5% |
| Thoracic Spine | 5% |
| Lumbar Spine | 5% |
| Upper Extremity | 11% |
| Medication | 3% |
| Mental and Behavioural | 20% |
| Total:* | 41% |
*Using the combined values chart in the Guides
68As such, I find that the applicant is not catastrophically impaired under Criterion 7 because she has not established that her accident related injuries meet the threshold of a 55% WPI rating.
Catastrophic impairment – Criterion 8.
69I find that the applicant is not catastrophically impaired under Criterion 8.
70The s. 25 Catastrophic Neuro-Psychological Assessment dated October 15, 2024 by Dr. Steiner, neuropsychologist, diagnoses the applicant with an accident related Neurocognitive Disorder – mild, Major Depressive Disorder – moderate with anxious distress, Somatic Symptom Disorder – with predominant pain. Dr. Steiner opines in his report that the applicant’s psychological symptoms cause functional impairments.
71The s. 44 Independent Psychiatry Examination dated March 20, 2025 by Dr. Jwely, psychiatrist, diagnoses the applicant with accident related Chronic Adjustment Disorder - mixed type, mild to moderate. He also agrees that the applicant’s accident related psychological injuries have impaired her ability to function.
72The psychological diagnosis of both experts differ. However, both agree that the applicant’s functional abilities are impaired by accident related psychological disorders. As such, I find that the applicant sustained psychological injuries from the accident which have resulted in functional impairments.
73A catastrophic impairment under Criterion 8 results when an insured person sustains three of more class 4 impairments (marked impairments) or one or more class 5 impairments (extreme impairments) in an accident pursuant to the Guides due to a mental or behavioural disorder. The four areas of function in Criterion 8 are activities of daily living (“ADL”), social functioning, concentration, persistence and pace (“CPP”), and adaptation.
74The Guides set out the five levels of impairment, ranging from a Class 1 No Impairment to a Class 5 Extreme Impairment, as noted in the chart below:
| Area or Aspect of Functioning | Class 1: NO Impairment | Class 2: MILD Impairment | Class 3: MODERATE Impairment | Class 4: MARKED Impairment | Class 5: EXTREME Impairment |
|---|---|---|---|---|---|
| Activities of Daily Living | No impairment is noted | Impairment levels are compatible with most useful functioning | Impairment levels are compatible with some, but not all useful functioning | Impairment levels significantly impede useful functioning | Impairment levels preclude useful functioning |
| Social Functioning | |||||
| Concentration, Persistence and Pace | |||||
| Adaption |
Activities of Daily Living (ADL)
75This area of functioning evaluates a person’s ability to engage in activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. The quality of these activities is judged by their independence, appropriateness, effectiveness and sustainability. It is necessary to define the extent to which the individual is capable or initiating and participating in these activities independent of supervision or direction. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
76The applicant argues that her post-accident ability to perform the ADL is severely limited by a high level somatization which causes her to have a marked impairment in the ADL.
77The respondent submits that the applicant’s limitations are predominantly physical and cannot be considered under Criterion 8. The respondent relies on Dr. Jwely’s mild rating in the ADL.
78There is no dispute that the applicant’s ability to function decreased after the accident. Prior to the accident she was independent with the ADL, including self-care, personal hygiene, communication, ambulation, travel, and social and recreational activities. Post accident, she requires assistance for showering, dressing and undressing, she ambulates with a cane, and can only preform light housekeeping and cooking tasks. She can no longer garden or engage in her volunteer work with the elderly.
79She has physical impairments that limit her ability to function, such as pain throughout her back and osteoarthritis in her left knee. The applicant argues that her Somatic Symptom Disorder is associated with physical pain and that it is reasonable to include such pain in determining her impairment level under Criterion 8. She cites Pastore v. Aviva Canada Inc., 2012 ONCA 642 where the Court of Appeal found that it was “reasonable to include pain from the general medical condition to the extent that such pain is connected with the diagnosed mental disorder.” She also cites the example of Islamovic v Co-operators General Insurance Company, 2023 CanLII 67922 (ON LAT) where the Tribunal adopted this manner of assessing pain limitations linked to mental and behavioural disorder.
80In my view, this case is distinguishable from both Pastore and Islamovic. In those cases the psychological condition accentuated the fear of pain and compromised the insured person’s ability to function. The applicant’s Somatic Symptom Disorder does not impact her in the same way. For example, there is no indication that the use of a cane to walk, requiring help to dress and undress, or the inability to be independent with housework and cooking is related to psychological factors.
81Her somatic symptoms affect her in other ways. Dr. Steiner testified that the applicant has a high level of concern related to pain. This was clear in her testimony. She feels very frustrated by her ongoing physical impairments. It is not just that fact that she can no longer do the things she used to do before the accident. She feels let down by the medical practitioners who have not restored her level of functioning. She also feels that no one is listening to her and that no one has explained why she has not gotten better. This frustration comes out when she interacts with medical professionals. As reported by Dr. Hylton in his testimony, she is verbally hostile to medical personnel and he must warn staff a day in advance of her appointment at the clinic so they can brace themselves for her arrival. This is a clear functional impairment in the ADL of communication that is rooted in the concerns and worries related to pain.
82The applicant also points to numerous references in the evidence on post-accident sleep disturbances. The respondent disputes that the applicant has an accident related sleep impairment because she has sleep apnea before and after the accident. I disagree with the respondent’s position on this point because post-accident the applicant suffers from sleep apnea, but she also reports that her sleep is disturbed by uncontrollable thoughts and nightmares, as noted in the s. 44 report by Nikita D’Souza, occupational therapist, dated May 1, 2023. These are new symptoms affecting her sleep which did not exist before the accident.
83In considering the ADL, I note that the applicant tries to be functional despite her physical pain. She performs light housekeeping and cooking duties. She goes out to play Bingo with her sister. She plans and attends scheduled visits with her granddaughter and the granddaughter’s adoptive parents. She drives. She researches online the best prices for groceries and then goes to the store to buy groceries within her budget. She does her own banking and pays her own bills. There do not appear to be any psychological impairments affecting her ability to complete these tasks.
84In my view, her psychological impairment levels are compatible with some, but not all useful functioning. As such, I find that she has a moderate impairment in the activities of daily living.
Social Functioning
85Social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with others. This includes the ability to get along with family members, friends, neighbours, grocery clerks, landlords, and other members of the public.
86The applicant submits that she feels very frustrated because of the pain she continues to experience. This triggers her temper and results in inappropriate, angry behaviour towards others. According to the applicant, this has isolated her and decreased the frequency of communication between her friends and family. In her view, she has a marked impairment in communication.
87The respondent notes that the applicant is a devoted grandmother who cherishes her grandchildren. The respondent also notes that the applicant is not isolated, but maintains relationships with family and friends. It argues that the applicant has mild impairment in social functioning.
88There are various examples of the applicant being irritable and angry after the accident and that she inappropriately expresses concerns related to pain and the lack of progress in healing to medical professionals. As noted above, Dr. Hylton testified that she is verbally hostile towards the staff at the clinic where he sees the applicant. The applicant also cites the testimony of Ms. Kaur. She yelled at Ms. Kaur over the phone during an attempt to re-schedule an appointment.
89The applicant’s frustration is primarily rooted in pain and the limitations caused by pain. She cannot understand why she has not yet become as functional as she was before the accident and blames the medical professionals who treat her. In my view, the resulting inappropriate interactions with medial professionals are examples of poor functioning.
90There are also examples of good functioning. The applicant testified that she would assist a relative with stomach cancer and “…give her (the relative) all the time, even if I fall flat on my face.” The certainty and conviction of her testimony in the hearing room was striking. She clearly has strong feelings of empathy towards for her family member.
91The applicant continues to visit her biological granddaughter and the granddaughter’s adoptive parents. These visits are scheduled four times per year. One of the adoptive parents testified that the visits are now arranged in a way that accommodates the applicant’s functional limitations, such as choosing a place that minimizes the amount of ambulation. The adoptive parent also testified that the only changes in how the applicant and her granddaughter interact since the accident are related to the applicant’s physical limitations. As such, from a mental and behavioural perspective, the applicant continues to maintain a healthy relationship with her granddaughter.
92The applicant also participates in family get togethers during the holidays. She drives from Scarborough to Owen Sound to visit her daughter and grandchildren. The clinical note dated September 23, 2023 from Spine Health Care Clinic states that she went to Owen Sound for her grandson’s ninth birthday. The clinical note from October 23, 2023 states that she was preparing Thanksgiving dinner because she wants to see her grandchildren enjoy her cooking. This is another example of the applicant making an effort to maintain and enjoy family relationships.
93The applicant testified that her best friend is scared to speak with her because of her temper. However, the applicant also testified that her best friend moved to Perth and they meet in-person once or twice a week. The applicant further testified that she spoke to her best friend the night before and the morning of the hearing. In the Spine health Clinic notes from December 11, 2024, the applicant reports that she continues to see friends.
94The applicant’s pain and frustration does cause some inappropriate interactions with medical professionals. However, she is also actively engaged in maintaining relationships with family and friends. She is not isolated and there is little evidence of her directing angry outbursts towards them. Most of the evidence shows that she cares for them and enjoys spending time with them. Her social functioning impairments are compatible with some, but not all useful functioning. For this reason, I find that she has a moderate impairment in this area of functioning.
Concentration, persistence, and pace (CPP) and Adaptation
95The applicant makes no submissions on having an extreme impairment in CPP or adaptation. As such, there is no basis to find that she has an extreme impairment in either of these areas of function.
96Having found that the applicant has two moderate impairments and no extreme impairments, I further find that she has not established that she is not catastrophically impaired under Criterion 8.
Housekeeping
97Under section 23 of the Schedule, housekeeping benefits are available to persons who are catastrophically impaired.
98As the applicant is not catastrophically impaired, she is not entitled to these benefits.
Non-earner benefit (NEB)
99I find that the applicant is not entitled to a non-earner benefit.
100Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
101The applicant submits that post-accident, her engagement in the ADL, social and recreational activities has declined dramatically and indicates a complete inability to carry on a normal life.
102The respondent submits there is no evidence supporting a finding that the applicant has been continuously prevented from engaging in “substantially all” activities in which she engaged in before the accident.
103Post-accident the applicant continues to drive, do her own banking, attend medical and legal appointments on her own, complete light cooking and housekeeping duties, and also enjoys visiting family and friends. This is a reduced level of functioning compared to the broader scope of activities that she could engage in before the accident. Even so, her reduced functioning does not meet the threshold of a “complete inability to carry on a normal life” as she can independently perform many aspects of a normal life. For this reason she is not entitled to a non-earner benefit.
Attendant care benefit (ACB)
104I find that the applicant is not entitled to attendant care.
105Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
106The applicant relies on the Insurer Examination of Nanisa Lee, occupational therapist, dated February 2, 2024. She submits that the January 8, 2024 report of Beverly Hammond, registered nurse, terminated the applicant’s entitlement to attendant care benefits without considering the emotional sequelae of the accident and the impact on the applicant’s ability to complete self care. Ms. Lee assessed the applicant soon after Ms. Hammond, and found that the applicant demonstrated limited physical tolerances and limited emotional coping.
107The respondent argues that the Insurer Examination of Ms. Hammond establishes that the applicant has a functional range of motion and can complete most self care tasks.
108The starting point of an attendant care analysis is the Assessment of Attendant Care Needs form commonly referred to as the Form 1. This is because the period of entitlement for attendant care is linked to when the Form 1 is submitted to the insurer. A review of the Form 1 is also required to identify the type of attendant care required and the rate to be paid for that care.
109There are two Form 1s in evidence. One is dated June 5, 2023, the other is from September 14, 2023. The applicant made no submissions on if she is relying on these Form 1s. If she is relying on these Form 1s, then she also made no submissions on which Form 1 is applicable to her to her case. Additionally, she has not identified what type of attendant care is reasonable and necessary and whether any care has been incurred. As such, I find that the applicant is not entitled to attendant care because she has not addressed the major components needed to establish entitlement.
110The applicant made no submissions regarding the treatment plans. As such, there is no basis to find that she is entitled to these plans.
Interest
111Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, the applicant is not entitled to interest.
ORDER
112The applicant is not catastrophically impaired.
113She is not entitled to housekeeping, a non-earner benefit, attendant care, the treatment plans, nor interest.
114This application is dismissed.
Released: November 3, 2025
__________________________
Harry Adamidis
Adjudicator