Citation: Noble v. Definity Insurance Company, 2025 ONLAT 24-008404/AABS

Licence Appeal Tribunal File Number: 24-008404/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:

Jennifer Noble

Applicant

and

Definity Insurance Company

Respondent

DECISION

PANEL:

Tami Cogan, Adjudicator

Neil Levine, Vice-Chair

APPEARANCES:

For the Applicant:

Robert Seredynski, Counsel

For the Respondent:

Martin Forget, Counsel

Stephen Whibbs, Counsel

Reporter:

Siriana Taylor

HEARD by Videoconference:

April 28, 29, 30, and May 1, 2, 2025

OVERVIEW

1Jennifer Noble, the applicant, was involved in an automobile accident on August 12, 2019, 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, Definity Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided are:

i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

ii. Is the applicant entitled to services proposed by Burlington Psychological and Counselling Services in a treatment plan/OCF-18 (“plan”) as follows:

1. $18,426.87 for psychological services, in a treatment plan submitted August 26, 2022;

2. $4,064.58 for psychological services, in a treatment plan submitted September 28, 2022;

3. $3,166.94 for psychological services, in a treatment plan submitted April 19, 2023; and

4. $4,064.58 for psychological services, in a treatment plan submitted February 1, 2024?

iii. Is the applicant entitled to $4,440.02 for physiotherapy services, proposed by S. Rajah Physiotherapy Professional Corporation in a treatment plan submitted March 12, 2024?

iv. Is the applicant entitled to $1,995.51 for occupational therapy services proposed by Ross Rehabilitation in a treatment plan submitted April 3, 2024?

v. Is the applicant entitled to $5,187.50 for physiotherapy services proposed by Total Health Physio Corp. in a treatment plan submitted November 3, 2023?

vi. Is the applicant entitled to $1,675.00 for a vision therapy assessment/physiotherapy treatment/botox injection proposed by Dr. Fink/Total Health Physio/Dr. Giammarco in a treatment plan submitted October 20, 2023?

vii. Is the applicant entitled to $4,057.86 for Neuro-Rehab Services Inc., submitted on a claim form (OCF-6) submitted July 7, 2023?

viii. Is the applicant entitled to $475.00 for Dr. Fink, optometry, submitted on a claim form (OCF-6) submitted August 15, 2023?

ix. Is the applicant entitled to $1,000.00 for Total Health Physio receipt, submitted on a claim form (OCF-6) submitted August 28, 2023?

x. Is the applicant entitled to $4,556.13 for Rehab First, submitted on a claim form (OCF-6) submitted October 31, 2023?

xi. Is the applicant entitled to $10,10.07 for Ross Rehabilitation statement, submitted on a claim form (OCF-6) submitted December 1, 2023?

xii. Is the applicant entitled to $4,057.86 for Neuro-Rehab Services Inc., submitted on a claim form (OCF-6) submitted July 7, 2023?

xiii. Is the applicant entitled to the four (4) receipts totalling $200.00 for Botox injections administered by Dr. Rose Giammarco from September 26, 2023?

xiv. Is the applicant entitled to $3,950.00 for Dr. Victor Schacher?

xv. Is the applicant entitled to $5,007.31 for Total Health Physio statement from January 20, 2021, to December 11, 2023?

xvi. Is the respondent entitled to a repayment of $21,402.50 relating to its payment of psychological and counselling services for the period of November 2, 2020, to August 22, 2022?

xvii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3After considering the testimony of all witnesses and reviewing the evidence, we find that:

i. The applicant is catastrophically impaired as defined in the Schedule.

ii. The applicant is not entitled to the treatments and services claimed.

iii. The respondent is not entitled to a repayment of psychological and counselling services (Issue 2(xvi)).

iv. As there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

PROCEDURAL ISSUES

Section 10 Award

4At the beginning of the hearing the respondent raised a motion to dismiss the applicant’s s. 10 award claim. The respondent submits that the applicant was not entitled to claim an award under s. 10 of the Schedule because the applicant did not notify the respondent of the particulars of the award, as ordered in the Case Conference Report and Order (CCRO) of October 24, 2024.

5The applicant submits that there was no notification of this concern by the respondent, and that particulars were submitted prior to the case conference in a settlement proposal dated December 10, 2023, based on the applicant’s prior application to the respondent. The applicant maintains that there is no prejudice to the respondent because the respondent had the opportunity to bring this to the attention of the applicant prior to this hearing but did not.

6The respondent submits that they did not receive particulars related to the current application, and the s. 10 award for the previous claim was dismissed by the Divisional Court.

7We order that the award claim is dismissed because the particulars for an award relating to this case were not provided in advance, as ordered in the Case Conference Report and Order of October 24, 2024. The parties have a right to know in advance the particulars of the case that is being brought against them. The respondent was not given this opportunity and therefore we find that a s. 10 award claim may not proceed because the applicant failed to produce particulars by December 24, 2024, as required by the Case Conference.

Additional Witnesses for the Applicant

8At the beginning of the hearing, the applicant sought to call a lay witness to testify at the hearing. This witness will not be permitted to testify as the applicant did not comply with the procedures and timelines as set out by the Tribunal in the CCRO and the Rules to ensure a fair, efficient and timely hearing.

9The applicant’s witness list was served and filed on April 22, 2025, three business days before the hearing, however, it identified a different lay witness than the individual the applicant is seeking to call.

10The applicant submits that the lay witness is necessary to the applicant’s case. The individual identified in the final witness list is an elderly person and the applicant has identified a different individual to testify.

11The respondent submits that no lay witnesses were mentioned at the case conference or noted in the Case Conference Report and Order dated October 22, 2024, which identified both parties’ witnesses. The applicant was aware of the witness’s age when they were first identified on the April 22 list. The applicant has not informed the respondent of the intention to bring a different witness, prior to the start of the hearing, nor has she provided a willsay statement for the witness or the witness’s contact information in accordance with Rule 9.4.3 of the Licence Appeal Tribunal Rules 2023 (Rules).

12We order that this witness will not be permitted to testify. The CCRO was clear in the number and names of witnesses that would be permitted. The applicant did not file a motion to seek leave to call new witnesses, in this case, a lay witness, nor did the applicant provide appropriate notice in accordance with the Rules. We find that it would be procedurally unfair to the respondent to allow a previously unidentified witness when the applicant has not availed herself of the procedures which would allow the respondent to prepare in advance of the hearing.

Clinical Notes and Records of Dr. Yedishtra Naidoo, Psychiatrist

13At the beginning of the hearing, the applicant submits that they had not received clinical notes and records for a witness for the respondent, Dr. Naidoo. The CCRO ordered that these records be produced, but they had not been produced as of the first date of the hearing.

14The respondent agreed to provide these records prior to Dr. Naidoo’s testimony on the fourth day of the hearing.

15The applicant submits that these records needed to be produced in advance of the witness’s appearance.

16We ruled that these records may only be relied upon if they are filed and served at least one day in advance of Dr. Naidoo’s testimony, who must then be available for cross-examination, or this information will be struck from the record.

Surveillance

17The applicant requested access to all surveillance undertaken by the respondent.

18The respondent submitted that as noted in the CCRO of October 25, 2024, all surveillance would be provided if it was to be relied upon. As the respondent did not plan to rely on any surveillance, none would be produced.

19We ruled in favour of the respondent. No surveillance need be produced. As noted in the CCRO, all surveillance would be provided if and only if it was to be relied upon. Furthermore, the Statutory Powers and Procedures Act R.S.O 1990 c. S. 22 says that anything protected by litigation privilege is not admissible, and privilege applies in this case.

ANALYSIS

Issue i: The applicant meets the criteria for a catastrophic impairment under Criterion 8

20On January 25, 2022, the applicant applied to the respondent for a determination that her accident-related impairments meet the definition of a catastrophic (CAT) impairment under the Schedule. The current dispute involves whether she sustained a CAT impairment pursuant to s.3.1(1)(7) of the Schedule (known as Criterion 7), and s.3.1(1) (8) of the Schedule (known as Criterion 8).

21The test to determine whether the applicant has sustained a CAT impairment is a legal test and not a medical one. For example, see Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paragraphs 29-30.

22This is a complicated matter, given that the applicant had a significant pre-accident medical history. She was involved in a series of prior accidents including one in 1999 in which she suffered from back and neck issues and headaches that made it difficult for her to work. She confirmed a difficult childhood and a troubled and abusive marriage that resulted in psychological issues that had an impact on her pre- and post-accident condition. The records indicated possible prior concussions, migraines, dizziness and lower back issues as far back as 2013.The applicant has an extensive medical history including a difficult childhood, abusive marriage, prior head trauma and head injury issues and potentially undiagnosed concussions.

23The applicant submits that despite prior issues and injuries, before this accident, she had built a successful life for herself, felt fulfilled and hopeful, was the caretaker for her sister and was successful at McMaster University where she was taking courses to earn a degree. Further, the applicant submits that following the subject accident in August 2019 there is a marked change in her ability to perform her self-care tasks, social functioning and activities of daily living. This was shown in the applicant’s psychiatric examination by Dr. Lesley Kiraly, psychiatrist, in addition to the in-person assessment examination and report by Ms. Danielle Wilson, an occupational therapist, completed in February and April of 2023.

24The respondent submits that the applicant was not catastrophically impaired after the accident according to the Schedule and her medical records. She had no significant new impairments post-accident, and had significant impairments for 19 years prior to the accident, for example, she had received benefits from the Ontario Disability Support Program. They further submit that the insurer’s examination reports and ratings should not be accepted because the experts were not provided all of the necessary information.

Criterion 8

25We find the applicant has established that she has sustained a catastrophic impairment under Criterion 8 of the Schedule.

26In order to meet the threshold for a CAT impairment under Criterion 8, an individual must have sustained three marked (class 4) impairments out of the four spheres of functioning or one extreme (class 5) impairment as a result of the accident due to a mental and behavioural disorder. These impairments are assessed under Chapter 14 of the 4th edition of the Guides. Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides sets out the four spheres of functioning and the levels of impairment as outlined in the chart below.

CRITERION 8 AMA Guides 4th Edition, Chapter 14

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 (ADLs)	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 (CPP)
Adaptation (Deterioration in a work-like setting)

27As summarized in the chart below, the assessors agree that the applicant should be assessed as class 3 in the area of Activities of Daily Living, and class 4 in the areas of Concentration Persistence and Pace, and Adaptation. We agree and see no reason to change these assessments.

CRITERION 8

Item	Applicant	Respondent	Tribunal’s Finding
ADLs	3	3	3
Social Functioning	4	3	4
CPP	4	4	4
Adaptation	4	4	4

28Since the parties agree that the applicant has a moderate impairment in ADLs, and marked impairments in CPP and adaptation, we will focus our analysis on the applicant’s pre- and post-accident conditions, the severity of the diagnosed illnesses, psychological impairment ratings supported by medical records, and the applicant’s social functioning to determine whether the applicant sustained a CAT impairment as a result of the accident.

29We do not accept the respondent’s arguments that their own expert ratings should be disregarded because they did not have sufficient information because they had access and control of the records to provide to their experts for their consideration.

30The applicant testified she is no longer the same person she was prior to the accident and has limitations and restrictions to her daily life that she did not previously have. However, showing that you are restricted and limited in what you can do is not sufficient to meet the Schedule’s catastrophic impairment test.

31The applicant submits that she had a challenging childhood with abuse at home and difficulties in school followed by a difficult and abusive relationship with her ex-husband. Despite these issues, she became a successful architecture technician who eventually developed her own business. She reported a challenging psychological and psychiatric history as well: adverse childhood experiences, depression, narcotic abuse, post-partum depression, and previous concussions. She had a history of anxiety and depression, and PTSD symptoms related to prior concussions.

32Dr. Kiraly testified that these previous conditions would make her more vulnerable than average to complications caused by subsequent trauma. Furthermore, Dr. Kiraly testified that the applicant was struggling with four major psychiatric disorders (chronic pain, chronic neurocognitive disorder, chronic PTSD and chronic depression) and this complexity meant that with treatments would not improve her condition much but help her cope and accept. Dr. Shannon Pursley, psychologist, confirms these issues in her Psychological Treatment Progress Report of November 2023 and her prior reports from 2020, 2021, 2022 and 2023. Furthermore, Dr. Pursley’s treatment and assessment plans from 2020 through 2023 and her psychological assessment report dated February 25, 2020, are consistent in asserting that the applicant continues to have PTSD, depressive disorder, anxiety, etc.

33The applicant had at least three motor vehicle accidents before the subject accident along with other incidents that caused injuries. Despite these injuries which included a concussion, a broken nose, neck pain, shoulder and back pain, headaches, and psychological injuries, she recovered and returned to university. She earned certificates in coaching and took Reiki courses. Her activities before the subject accident included writing, collecting antiques, and hiking. She was a caregiver to her sister who had a serious illness. The applicant testified that she was organized and kept a clean appearance and was able to perform all self-care tasks and activities of daily living.

34We found the applicant to be a credible witness regarding her pre- versus post-accident activities and social functioning because most of her testimony was corroborated by the testimony and medical notes of medical and treatment professionals. For example, the occupational therapy report by Ms. Wilson outlines the differences between pre- and post-accident functioning and shows how the applicant’s social functioning deteriorated and changed after the accident. She was noted as being tearful and depressed, and also said to the assessor that she had no romantic relationships and only a few friends. The observations of the OT assessor were that she may be functionally able to do social activities like attending church or interacting socially with friends but lacks motivation and the emotional ability to do so.

35It is well established law that the appropriate test to determine causation in many accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test, the applicant must prove 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 CAT status. The court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability, and that the accident need not be the only cause of the impairment but must be a necessary cause.

Social Functioning

36Under the Guides the factors to consider under Social Functioning are an individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others such as family members, friends, neighbours, grocery clerks, lenders, etc. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Strengths in social functioning may be documented by an individual’s ability to initiate social contact with others, communicate clearly with others and interact and actively participate in group activities, cooperative behaviour, consideration for others, awareness of others’ sensitivities and social maturity also need to be considered.

37It is in this area of social functioning that there is the most variance in terms of the applicant’s reported and diagnosed symptoms and difficulties.

38Dr. Francis Farhadi, neurosurgeon diagnosed post-concussive syndrome, while the report from Dr. Kiraly, a psychiatrist, noted that she stayed home and did not go out very much, was depressed, and did not want to interact with people. Dr. Kiraly further noted that she no longer participated in social activities like hiking and biking and had lost interest in most leisure activities. The report of Ranya Ghatas also documents the applicant’s nervousness and distraction with an emotional range that was dysregulated. This limits her social function and contributes to her inability to interact with others and her social isolation.

39We find that there is significant social isolation and reduced social functioning. For example, the only people the applicant speaks to on a regular basis are her sister and other siblings, and there has also been testimony that the has had a difficult relationship over the past few years with her mother and brother. The applicant testified to significant recreational and social activities before the subject accident, including hiking and biking with others, and none afterwards. Though she was physically unable to do these activities, the records show that her emotional and psychological difficulties played a significant part in her inability to do so. There are notes and records showing that that the applicant had affect and mood changes and tearfulness during assessment visits, no romantic relationships to speak of following this subject accident, and did not leave the house frequently.

40Dr. Naidoo’s assessment noted phobic avoidance of crowds, driving, mood fluctuations and tearfulness. Also noted by Dr. Naidoo was the applicant’s specific mention of a deterioration of relationships with friends and family with whom she had relationships prior to this accident. We find Dr. Naidoo’s report is consistent with the testimony we heard from the applicant. We found the applicant to be credible in her testimony and we find the applicant is significantly socially isolated due to the very limited frequency of leaving her home, difficulty in social situations, difficulties on a shopping excursion at a grocery store, which resulted in confusion, moodiness, and tearfulness. We find the records of the personal support workers and their correspondence with the applicant corroborate interpersonal conflict, even with the people from whom the applicant is seek support. Dr. Pursley’s psychological treatment reports through 2022 indicated the applicant met the criteria for PTSD, Major Depressive Disorder (recurrent episode, moderate, with anxious distress) and Somatic Symptom Disorder. Further, the OT treatment plan report by D. Prestwood, OT from May 27, 2022, noted that the rehabilitation therapist was required to accompany the applicant outside, reduce isolation, and assist with community reintegration.

41We find this evidence shows that the applicant’s mental and behavioural changes and subsequent difficulties as a result of the accident, have significantly affected her ability to function socially. It is apparent that any social activities the applicant participated in ceased after the subject accident as a result of both physical issues and mental/behavioural issues. The report by occupational therapist Danielle Wilson dated December 20, 2023, notes the OT’s impression that the applicant did not leave the house often. In fact, the respondent, submitted that the applicant left home approximately 181 times in a period from May 4, 2020, to June 7, 2024 (more than four years, or 213 weeks). This means that the applicant left home less than once per week. We find that these are representative examples of reduced social interaction, problematic social functioning and social isolation and therefore show how the impairments significantly impede useful function.

42Dr. Pursley corroborates these findings in her treatment progress reports and CNRs from 2020 through 2025. In 2024, Dr. Pursley noted that the applicant lacks emotional stamina among other problems, and also noted that the applicant does not regularly go on outings outside her apartment aside from medical appointments. Dr. Pursley’s CNRs from September 2024 through March 2025 note that the applicant showed continued emotional reactivity and distress, cognitive confusion, arguments and stress with her family’s lack of support. There were some signs of improvement, but the overall impression of the notes was that of a patient that was struggling mentally.

43The respondent’s psychiatrist, Dr. Naidoo found that the applicant’s issues and symptoms existed prior to the accident but were exacerbated greatly by the subject accident. That is, the accident caused the manifestation of the applicant’s BPRS disorder, Somatic Symptom Disorder with Predominant Pain, moderate and Other Specified Trauma and Stressor-Related Disorder, which persist to the present time. We accept the opinion of Dr. Naidoo because it has not been contradicted by any of the experts or other evidence. Therefore, we find that the accident is a necessary cause of the applicant’s impairments.

44In consideration of the applicant’s testimony, we find that the level of social isolation that the applicant is experiencing to be a significant impediment to useful functioning.

45In reaching this conclusion, we have considered that the respondent submits that the applicant is engaging in painting, sewing and other hobbies, which, they argue, demonstrates a higher level of function. We do not accept the respondent’s submission because these are activities that have been part of her rehabilitation and demonstrate her participation in this rehabilitation. However, her participation in these activities is only at the prompting of her therapists and the activities require prompting for the applicant to actually do them.

46Prior to the subject accident, the applicant did not exhibit symptoms of Somatic Symptom Disorder, though she did have persistent post-concussive symptoms that limited her from working and required to obtain help with her university schoolwork. It was noted that she was diagnosed with a Borderline Personality Disorder in 2020, as well as stress related symptoms. Dr. Naidoo said that it was likely that the applicant was exhibiting those symptoms at the time of the subject accident; however, these did not appear to be impairing her social functioning at that time.

47Dr. Naidoo noted in his assessment that within three months of the subject accident, the applicant exhibited symptoms of somatic worry and focus, which persisted beyond six months. The applicant also exhibited features of phobic avoidance of crowds as well as driving, occasional nightmares, as well as fluctuation in mood, with mood lability and tearfulness in the context of her trauma-related condition. Dr. Naidoo also stated that the applicant’s worries about pain that in part due to her pain focus and pain worry (Somatic Symptom Disorder), was the reason that her relationships with friends deteriorated, as a result of her inability to engage with recreational activities.

48We do not accept Dr. Naidoo’s conclusion that her relationship with her sister improved. We conclude that the relationship changed because the caregiver roles reversed. Dr. Naidoo notes that she is unable to see her mother as frequently, which we determine is a reduction in her social interactions.

49Hence, we find on a balance of probabilities that but for the subject accident, the applicant would not have exhibited symptoms of Somatic Symptom Disorder affecting her social functioning. We find that but for the subject accident, she would not have exhibited symptoms of an Other Specified Trauma and Stressor Related Disorder, all of which have contributed to the applicant’s impairment in social functioning.

50Accordingly, we find on a balance of probabilities that the applicant has a class 4, marked impairment designation for social functioning.

51Having established that she has a marked impairment in the three areas of social function, concentration, persistence, and pace, and adaptation, we find on a balance of probabilities that the applicant has established that she has suffered a catastrophic impairment as defined by the Schedule, as a result of the accident.

Criterion 7

52As a result of finding the applicant to be catastrophically impaired under Criterion 8, there is no need to consider Criterion 7.

53To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

54The parties were provided with one hour for their final submissions. We were directed to receipts of incurred expenses or treatments. Nevertheless, the applicant did not point us to any medical evidence in support of the disputed treatment plans and their reasonableness or necessity, nor did the respondent point us to evidence to support the repayment of the psychological and counselling treatment plans. Accordingly, neither party has satisfied their onus, and we therefore find that none of the treatment plans, or the request for repayment, are reasonable or necessary. It is not the adjudicator’s job to assemble the parties’ cases for them.

Interest

55As there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

56For the above reasons, we make the following order:

i. The applicant sustained a CAT impairment based on Criterion 8, as defined by the Schedule.

ii. The applicant is not entitled to the treatments and services claimed.

iii. The applicant is not liable for repayment of psychological and counselling services (Issue 2(xvi))

iv. There is no interest owing.

v. The applicant’s claim for a s. 10 award under Reg 664, is dismissed.