Licence Appeal Tribunal File Number: 24-001527/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:
Liza Martin
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Ian S. Greenway, Counsel
For the Respondent:
Daniel Himelfarb, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Liza Martin, the applicant, was involved in an automobile accident on February 19, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $12,430.00 for catastrophic impairment (“CAT”) assessments proposed by PsycIME Corporation in a treatment plan/OCF-18 (“plan”) dated January 24, 2024?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the plan for CAT assessments.
4The applicant is not entitled to interest.
ANALYSIS
CAT assessments
5Section 25(1)5 of the Schedule sets out that the insurer shall pay reasonable fees charged to prepare any assessment that is necessary for a determination of whether an insured person is CAT. The applicant bears the onus of demonstrating, on a balance of probabilities, that the assessment is reasonable and necessary.
6The purpose of an assessment is to determine whether a condition exists. The applicant bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
The applicant is not entitled to the plan for CAT assessments
7The applicant has not met her onus of demonstrating on a balance of probabilities that the plan for CAT assessments is reasonable and necessary.
8The plan was proposed by Dr. Shahzad Shahmalak, physician. The plan proposes a psychiatric assessment and medical file review, psychiatric scoring and report preparation, occupational therapy in-home and community assessments, travel time for the psychiatrist and occupational therapist, office rental (psychiatric assessment and testing), and completion of the OCF-18. The goals of the plan are pain reduction, increased range of motion, increase in strength, reduction of psychological symptomatology, to return to activities of normal living, and improvement of emotional functioning.
9The applicant submits that the assessments aim to evaluate CAT status under Criterion 8, which is critical for accessing enhanced benefits to address her ongoing needs.
10The applicant refers to the following medical evidence in support of her position:
i. In a report dated August 9, 2016, Dr. Richard Doran, physiatrist, diagnosed the applicant with the following accident-related injuries: whiplash-associated disorder (type II), cervical and lumbar facet osteoarthropathy, myofascial pain syndrome, and a rotator cuff injury/possible labral tear. Dr. Doran indicated that the applicant’s headaches and her fibromyalgia may also be related to the accident. Dr. Doran noted a guarded prognosis for full recovery due to persistent pain for over two years.
ii. The applicant has been receiving Long-Term Disability benefits (“LTD”) since approximately June 6, 2017, supplemented by Canada Pension Plan disability benefits, reflecting the severity and permanence of her condition.
iii. In a report dated August 18, 2017, Dr. Judith Pilowsky, psychologist, assessed the applicant with the following accident-related diagnoses: Major Depressive Disorder, Single Episode, Moderate, with Anxious Distress, and Persistent, Severe Somatic Symptom Disorder with Predominant Pain. Dr. Pilowsky indicated a guarded prognosis and significant lifestyle impacts, including marital strain.
iv. After a psychiatric consultation on December 9, 2017, Dr. Yosef Kwamie, psychiatrist, diagnosed the applicant with major depression with anxious distress, posttraumatic stress disorder (“PTSD”), and chronic pain syndrome.
v. In a report dated January 17, 2019, Dr. Gary Challis, psychologist, who started treating the applicant on May 15, 2018, indicated that she presented with symptoms consistent with a diagnosis of a Persistent Somatic Symptom Disorder and Adjustment Disorder with mixed anxiety and depressed mood, because of the accident.
vi. The applicant put into evidence the clinical notes and records (“CNRs”) of Dr. Thomas John, specialist in physical medicine and rehabilitation, from April 11, 2019, to October 16, 2023. In a report dated April 11, 2019, Dr. John indicated that the applicant had the following accident-related injuries: myofascial strain injuries, adhesive capsulitis (frozen shoulder) on the left side, neuropathic pain in the left upper extremity, low back and hip pain, severe brachial plexus neuropathy on the left side, ulnar neuropathy in the cubital tunnel on the left side, occipital headaches, PTSD, and depression. The applicant also developed DeQuervain’s tenosynovitis and tenosynovitis of the ulnar muscles attached to the wrist. In a report dated June 14, 2021, Dr. John indicated that the applicant was totally disabled to return to any job suited by education, training and experience. Subsequent reports confirmed there was no significant improvement with respect to her injuries.
vii. On December 1, 2023, the applicant’s family physician, Dr. Matthew D’Mello, completed an Application for Determination of Catastrophic Impairment (OCF-19), indicating impairment under Criterion 8. Dr. D’Mello indicated that the applicant has marked impairment in activities of daily living, social functioning, concentration, and adaptation due to the accident.
11The applicant submits that she was once an active, employed individual with a stable career and personal life, and she now faces significant limitations in her quality of life, functional abilities, and employability. She further submits that her condition has persisted over ten years, with little prospect of full recovery, as evidenced by consistent medical reports spanning since the accident. The applicant argues that the evidence collectively demonstrates a nexus between the accident and her chronic physical and psychological impairments, her inability to work, and the impact on relationships, justifying the need for CAT assessments.
12The applicant takes the position that the assessments are reasonable and necessary for the following reasons:
i. There are over ten years of documented impairments, which suggest possible catastrophic level disability.
ii. Dr. D’Mello has provided support for CAT.
iii. Dr. Shahmalak has recommended the assessments.
13The respondent points out that the only OCF-3 submitted on the applicant’s behalf was completed Dr. Daniel Hsieh, physician, on March 12, 2014. The injuries listed are sprains/strains to her neck, back, and knees, headaches, and a left pectoral contusion. Dr. Hsieh anticipated the duration of her injuries to be nine to twelve weeks.
14The respondent also points out that the applicant has not submitted a claim for treatment in the four years leading up to the OCF-19, and there is no evidence of treatment in the last four years. The respondent refers to a Standard Benefit Statement dated January 28, 2024, indicating that the total benefits paid from the accident date of February 19, 2014, to January 2024 was $9,934.61, and there was a total of $40,065.39 remaining under the applicant’s policy. The respondent submits that the absence of evidence of the need for medical services or treatment strongly suggests that the enhanced benefits provided with a CAT designation are not necessary and that the applicant has few, if any, treatment needs. In other words, the evidence does not lead to the inference that the applicant is suffering from impairments that could be considered CAT.
15In reply, the applicant submits that the $40,000.00 remaining in the policy limits is irrelevant with respect to whether CAT assessments are reasonable, because it only underscores the applicant’s conservative use of benefits, and not lack of need.
16Although the applicant submits that the assessments are critical for accessing enhanced benefits to address her ongoing needs, I find that the fact that the applicant only accessed $9,934.61 in benefits in the ten years after the accident, and that she has not accessed over $40,000.00 of benefits still available to her in the four years leading up to the OCF-19 does not support this argument.
17Further, I note that all the reports relied upon by the applicant, except for Dr. John’s CNRs and reports, are quite dated, and not contemporaneous with the treatment plan dated January 24, 2024. For this reason, I place little weight on the reports of Dr. Doran dated August 9, 2016, Dr. Pilowsky dated August 18, 2017, Dr. Kwamie dated December 9, 2017, and Dr. Challis dated January 17, 2019, in my consideration of the reasonableness and necessity of the plan in dispute.
18The only recent medical evidence relied upon by the applicant in support of the disputed plan, is the OCF-19, and the CNRs of Dr. John.
19Although the applicant reported to Dr. John that she continued to receive counselling from Dr. Challis throughout 2020, 2021, 2022, and 2023, the applicant does not submit a report by Dr. Challis more recent than January 17, 2019, or any of Dr. Challis’ CNRs.
20In addition, although the applicant refers to an OCF-19 that was completed by her family physician, Dr. D’Mello, indicating that she has a marked impairment in activities of daily living, social functioning, concentration, and adaptation due to the accident, I note that Dr. D’Mello does not explain how he came to arrive at these conclusions. Further, the applicant does not submit into evidence any of Dr. D’Mello’s CNRs that might justify his findings.
21I note that the applicant points to the fact that she is in receipt of LTD since June 2017, arguing that, when paired with medical evidence, this reflects a recognized disability tied to accident-related impairments, supporting the need for CAT evaluation. I find that this, along with Dr. John’s opinion that the applicant was totally disabled to return to any job suited by education, training and experience, could be evidence of an impairment in the domain of adaptation. However, the applicant has not directed me to evidence, contemporaneous with the disputed plan, of a marked impairment in activities of daily living, social functioning, or concentration, due to the accident.
22The applicant refers to Dr. John’s CNRs, indicating that she had consultations with Dr. John on the following dates: April 11, 2019, April 23, 2020, April 12, 2021, April 11 and December 12, 2022, and April 17 and October 16, 2023.
23In a report dated June 14, 2021, Dr. John indicated that the applicant had the following accident-related functional limitations:
i. She had significant weakness in her left upper extremity. She could only perform activities using her right upper extremity and she would be unable to lift anything above the shoulder level.
ii. She would have difficulties with activities of daily living, like washing and drying her hair, and doing household chores like cooking, cleaning, and indoor and outdoor home maintenance.
iii. She would have significant difficulties with social and recreational activities.
24There is no mention in any of Dr. John’s CNRs of any functional limitations relating to concentration.
25Upon a review of Dr. John’s CNRs, I find that Dr. John’s report dated June 14, 2021 is based on his examinations of the applicant up to and including an in-person appointment with her on April 11, 2019. On April 23, 2020, and April 12, 2021, Dr. John did not conduct an in-person examination of the applicant, because he consulted with her by phone. Accordingly, I place little weight on Dr. John’s opinion with respect to the applicant’s accident-related functional limitations from the report dated June 14, 2021, because I find it is based on his examinations of the applicant on or before April 11, 2019, well over four years prior to the proposed plan. I find that this is not contemporaneous evidence in support of the plan.
26In later CNRs, Dr. John does not comment on any of the applicant’s impairments in activities of daily living or social functioning. In Dr. John’s CNRs dated October 16, 2023, he indicates that the applicant was trying to walk daily (although swinging her arms caused discomfort in her left arm), and that she did pool exercises, Tai Chi, and pickle ball.
27The respondent refers to two decisions of the Tribunal: 17-006956 v. Guarantee Company of North America, 2018 CanLII 110952 (ON LAT), and Satheeskumar v. Travelers Insurance, 2023 CanLII 116489 (ON LAT), where the Tribunal held that, although by their nature, assessments are speculative and their purpose is to determine if an applicant has a specific condition or meets a specific threshold, there must be some suggestion that the specific condition exists and arose from the accident and that further investigation is reasonable and necessary. Although I am not bound by other decisions of the Tribunal, I agree with the reasoning in these decisions, and I find that this has not been established in this case. I find that there is insufficient contemporaneous, objective medical evidence to establish that the applicant has an accident-related condition that warrants further investigation to determine whether she might be CAT.
28On the facts before me, I can see no reasonable basis to conduct an assessment to determine if the applicant is CAT.
29For these reasons, I find that the applicant has not met her onus of proving on a balance of probabilities that the plan for CAT assessments is reasonable and necessary.
Interest
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
ORDER
31For the reasons above, I find:
i. The applicant is not entitled to the plan for CAT assessments.
ii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
iii. The application is dismissed.
Released: November 10, 2025
Laura Goulet
Adjudicator