Licence Appeal Tribunal File Number: 23-006837/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:
Dina Anker
Applicant
and
RSA Insurance Company
Respondent
DECISION
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
David J Levy, Counsel
For the Respondent:
Lora Castellucci, Counsel
HEARD:
In Writing
OVERVIEW
1Dina Anker, the applicant, was involved in an automobile accident on November 6, 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, RSA Insurance Company, and applied to the Licence Appeal Tribunal (“the Tribunal”) for resolution of the dispute.
2Specifically, the respondent denied that the applicant’s accident-related impairments meet the definition of catastrophic impairment (“CAT”). If it is determined that she is CAT, the applicant is entitled to the extended tier of benefits that accompanies this designation. The applicant is also claiming interest.
ISSUES
3The issues in dispute are:
i. Has the applicant sustained a CAT impairment as defined by the Schedule?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find:
i. The applicant did not sustain a CAT impairment.
ii. The applicant is not entitled to interest.
BACKGROUND
5On November 6, 2019, the applicant was driving her vehicle in a collector lane on Highway 401 when she changed lanes and rear-ended a stopped vehicle. She was subsequently hit from behind by another vehicle. The applicant was extricated from her vehicle by emergency personnel and taken by ambulance to the hospital. The ambulance call report notes that the applicant complained of lower back pain, left shoulder pain, right wrist pain and right knee pain. She denied any head injury or loss of consciousness.
6Once she arrived at the hospital, the applicant also complained of chest pain and left hip pain. She denied any abdominal pain, nausea/vomiting, headache or dizziness. She was diagnosed with fractures to her ribs, as well as fractures to her right patella and right wrist for which she underwent surgeries with the insertion of hardware in each. She remained in hospital until November 15, 2019, at which time she was transferred to the rehabilitation hospital for a further six weeks. She was discharged home on December 23, 2019.
7In the months that followed, she received physiotherapy and chiropractic treatment, and on October 15, 2020, the applicant underwent surgery to remove the hardware in her right knee. She continued with physiotherapy and chiropractic services and then underwent an additional surgery to remove the hardware in her wrist on February 10, 2021.
8At the time of the accident, the applicant was employed full-time by the Toronto District School Board as an accessibility coordinator. She returned to work following the accident, with accommodations, and worked approximately three to five hours a day.
9The applicant seeks a CAT determination under Criterion 7, and interest.
ANALYSIS
The applicant does not meet the CAT threshold under Criterion 7
10The applicant has exhausted her non-CAT limit and seeks a CAT determination under Criterion 7 under the Schedule. For the reasons that follow, I find that the applicant does not meet the Criterion 7 threshold.
11To qualify under Criterion 7, the applicant must prove that she has a combination of physical and psychological impairment ratings from medical professionals that meet the 55% whole person impairment (WPI) threshold. The psychological impairment rating is determined in accordance with the methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“the Guides”), 6th edition, 2008, and is combined with the physical WPI rating from the American Medical Association’s Guides, 4th edition, 1993, using the Combined Values Table. An impairment percentage derived by means of the Guides is intended to represent an informed estimate of the degree to which an individual’s capacity to carry out daily activities has been diminished.
12The applicant has a pre-existing medical history which includes a right ankle lateral malleolus fracture reported in June 2018 that was managed non-operatively. On June 22, 2019, the applicant sustained a fall while visiting Holland and fractured her right ankle a second time. The second fracture was also treated non-operatively. She underwent jaw surgery when she was approximately 20-years old and has a history of hypertension.
13Prior to the accident, the applicant was diagnosed with major depressive disorder and complex Post Traumatic Stress Disorder (PTSD), anxiety, suicidal ideation, and sleep disturbance. There are also various pre- and post-accident events in the applicant’s life that had an impact on her psychological condition including abuse and neglect stemming from her childhood, a family history with Canada’s Indian residential school system, a challenging relationship with her daughter, separation from her spouse prior to the accident that proceeded to a divorce after the accident, and the death of a close friend.
14I will therefore focus my analysis on which physical and psychological impairment ratings are supported by the medical record in determining whether the applicant sustained a CAT impairment as a result of the accident.
15The applicant relies on the multi-disciplinary CAT reports of Mind Connections in which she was assessed by Dr. Basile, neurologist, Dr. Getahun, orthopaedic surgeon, Dr. Frtusova, psychologist, and Meeta Gugnani, occupational therapist. Dr. Getahun also prepared the executive summary which concluded that the applicant sustained a combined WPI rating of 57% and therefore meets the CAT threshold.
16The applicant submits that a CAT analysis in this matter requires the consideration of three separate areas – musculoskeletal, neurological and psychological. Prior to the accident, the applicant was employed full-time, managed her household and cared for her daughter and herself. She submits that following the accident, her condition deteriorated over time and in addition to her physical and psychological issues, she began to experience other behavioural and personality changes, including difficulties with multitasking, delayed spoken responses, slurring of speech, word finding difficulties, amnesia and difficulty regulating emotions.
17The respondent relies on the multidisciplinary CAT assessment reports of Assessment Rehabilitation Services Ltd. in which she was assessed by Dr. Moddel, neurologist, Dr. Sekyi-Otu, orthopaedic surgeon, Dr. Sivasubramanian, psychiatrist and Mr. Avi Kaplun, occupational therapist. Dr. Hanna, emergency and family medicine physician, prepared the executive summary and concluded that the combined WPI rating under Criterion 7 is 37%.
18The respondent submits that contrary to her submissions, the applicant was not highly functional and living a stable life at the time of the accident but rather, she was experiencing long-term significant health issues. More specifically, it argues that the applicant has a complex and lengthy history of emotional problems, initially stemming from childhood, which impacted her function. The applicant’s concerns after early 2021 have been primarily psychological in nature with some cognitive complaints. Many of these concerns are pre-existing and/or unrelated to the subject accident. The respondent submits that the applicant has largely returned to her normal activities since the accident, including her regular employment and extensive travel within Canada and abroad, she has resumed her personal care, caregiving and housekeeping activities, and has maintained relationships with family and friends.
19The applicant concedes that prior to the accident, she suffered from depression, anxiety and PTSD. She was under the care of a psychiatrist, took medication, and received therapy and counselling to manage her symptoms. Despite these conditions, she worked, managed her household and cared for her daughter.
20The chart below provides a summary of both parties’ assessors’ ratings and the Tribunal’s findings regarding Criterion 7. The rationale for my findings and my ratings will follow.
21Of note, the applicant does not make submissions regarding the individual ratings provided by her experts. Rather, she submits that she accepts Dr. Sekyi-Otu’s (the respondent’s expert) rating of 37% for the musculoskeletal system, Dr. Basile’s neurological findings totalling 45%, and the mental and behavioural rating assigned by Dr. Frtusova of 15% WPI. In doing so, the applicant did not account for the 5% WPI for scarring assigned by the applicant’s orthopaedic surgeon (Dr. Getahun) or Dr. Basile’s rating for the musculoskeletal system of 10%. The chart she submitted also does not include additional ratings identified by her neurologist in his addendum report. For the sake of completeness, the chart below reflects all ratings identified by the applicant’s experts.
Impairment
Applicant’s Rating
Respondent’s Rating
Tribunal’s Finding
Musculoskeletal system Spine Upper extremity Lower extremity
Dr. Getahun: 22% 10% 7% 7%
31% 0% 19% 15%
31%
Cervical spine Lumbosacral spine
Dr. Basile: 10% 5% 5%
Sleep and arousal disorders
3%
0%
0%
Headaches Migraine headaches Tension headaches Cervicogenic headaches
13% 2% 1% 10%
0%
0%
Central and peripheral nervous system dysfunction Aphasia or communication disturbances Mental status and integrative functioning abilities Emotional or behavioural disturbances
14% 4% 14% 10%
0%
0%
Hearing (tinnitus)
2%
2%
2%
Vertigo
4%
0%
0%
Sexual dysfunction
3%
0%
0%
Vestibular impairment criteria
3%
0%
0%
Scarring
5%
0%
5%
Ulnar sensory neuropathy
0%
1%
1%
Medication
3%
3%
3%
Combined Physical Impairment
57%
34%
38%
Mental and behavioural rating
15%
5%
5%
Combined Physical and Mental and Behavioural Impairment
63%
38%
41%
Musculoskeletal system
22The applicant’s orthopaedic surgeon (Dr. Getahun) assigned 22% WPI to her musculoskeletal system. The applicant’s neurologist (Dr. Basile) assigned 10%. The applicant submits that she accepts the rating of 31% WPI from the respondent’s expert, Dr. Sekyi-Otu, and states that the respondent’s expert has a higher rating because of the time that passed between the two assessments (six months) and the deterioration of her condition.
23As the parties do not dispute the 31% rating assigned by Dr. Sekyi-Otu, I accept this rating. I also note that the musculoskeletal impairments identified by Dr. Sekyi-Otu – primarily caused by the fractured right wrist and knee – are supported by the medical documentation submitted, and more specifically the operative reports and discharge summaries.
Neurological impairments
24The applicant relies on the neurological assessment report of Dr. Basile dated May 11, 2022 and his two addendum reports. I note that Dr. Basile’s initial report provided a combined neurological rating of 38% while his first addendum report of June 22, 2023 – and on which the applicant relies for its revised ratings – provides a combined neurological rating of 45%. Having reviewed both reports, I note that Dr. Basile added the following ratings in his addendum report which he did not identify in his initial report: vertigo (4%), sexual dysfunction (3%) and vestibular impairment criteria (3%).
25The applicant submits that Dr. Basile’s ratings should be preferred as his report is more detailed and because he spent far more time assessing her. She submits that the respondent’s neurologist, Dr. Moddel, took a narrow view of her condition.
26The respondent relies on the neurological report (and two addendum reports) of Dr. Moddel and submits that Dr. Basile’s ratings are inconsistent with the evidence, grossly inflated and lack merit. The respondent argues that Dr. Basile failed to provide any analysis of how he reached his WPI scores; he simply included a list setting out every possible impairment and provided a score. There is no analysis within the body of his reports to explain why or how his ratings are appropriate.
27There is important debate regarding the neurological findings between the parties’ experts which resulted in each party’s expert providing addendum reports or, as Dr. Basile refers to them, rebuttal reports.
28I assign limited weight to Dr. Basile’s ratings because I find that, overall, many of his WPI ratings are not supported by medical evidence, there is insufficient evidence that the impairments were caused by the subject accident, and/or, as the respondent argues, Dr. Basile does not provide an analysis for his ratings and does not indicate how his ratings were applied in accordance with the Guides.
29I note that there are also inconsistencies in Dr. Basile’s reports. For example, Dr. Basile diagnosed the applicant with a traumatic brain injury due to a concussion and post-concussive syndrome. In his initial report of May 2022, Dr. Basile notes that the applicant struck her head and suffered a loss of consciousness in the accident. This is not supported by the ambulance call report or the information noted in the hospital records.
30I also note that the applicant submitted little contemporaneous documentation to support the self-reported complaints made by the applicant to Dr. Basile. The applicant submitted operative reports and discharge summaries in support of the musculoskeletal impairments, however, the only other documentation referenced in her submissions is a discharge summary dated November 3, 2023 from the Centre for Addiction and Mental Health (CAMH) and an earlier neurological assessment report by Dr. Basile dated December 17, 2020. The applicant does not point to any clinical notes and records of treating practitioners or her family physician to support her complaints. I will therefore undertake an analysis of each of the ratings and consider whether they are supported by the medical documentation submitted.
i. Musculoskeletal Impairment
31Dr. Basile’s overall neurological impairment rating (45%) relied on by the applicant includes ratings for the cervical and lumbosacral spine of 5% WPI each. As indicated above, the applicant accepted the musculoskeletal system rating of Dr. Sekyi-Otu (31% WPI). Dr. Sekyi-Otu assigned 0% for the regions of the spine. It is inconsistent for the applicant to accept Dr. Sekyi-Otu’s rating of 31% WPI all the while challenging his 0% finding for the spinal region.
32In any event, Dr. Basile does not provide a clear analysis for his ratings. His reports discuss his finding of radiculopathy to a great extent, but he does not explain how he converts his finding of radiculopathy with the ratings assigned nor does he explain how these ratings are supported by the Guides.
33For these reasons, I do not accept the total 10% WPI rating Dr. Basile assigned to the cervical and lumbosacral regions of the spine. I accept Dr. Sekyi-Otu’s rating of 0%.
ii. Headaches
34Dr. Basile assigns a rating for cervicogenic headaches (10%), migraine headaches (2%) and tension headaches (1%) for a total headache rating of 13% WPI. Dr. Moddel assigned 0% and opined that the applicant’s headaches were tension and vascular in nature and should not be rated.
35In the body of his report, Dr. Basile notes that the applicant reports “ongoing headaches and dizziness” occurring at a rate of one to two times per week which she grades at 5 out of 10, on average. In a one-page chart listing all of the impairments identified and the ratings assigned to each, Dr. Basile notes:
Cervicogenic headaches/greater and lesser occipital neuralgias (Table 23 4/152)
Right (5% WPI)
Left (5% WPI) combined right 5% left 5%
10% WPI
Headaches
Migraine headaches
2% WPI
Tension headaches
1% WPI
36It is unclear how Dr. Basile determined his ratings. The only reference he makes to the Guides is his reference to Table 23 at page 152 of Chapter 4. I note that Table 23 addresses “Impairments of Spinal Nerves in the Head and Neck Region”. There is no guidance on how this table is relevant to the determination of a rating for headaches, or how the table supports the ratings assigned. I also note that since Table 23 references impairments to the head and neck, it is possible that these impairments were considered and included in the musculoskeletal ratings Dr. Basile assigned to the spine which would make a rating for headaches duplicative.
37Both experts find that the applicant suffered from headaches caused by the subject accident, however, I prefer the evidence of Dr. Moddel who opined that the applicant’s headaches were tension and vascular in nature and should not be rated. Without a clear explanation for how the 13% WPI was determined by Dr. Basile, I do not accept this rating. I assign 0%.
iii. Central and Peripheral Nervous System
38The applicant submits that she began experiencing additional symptoms following the accident such as difficulty with multitasking, delayed spoken responses, slurring of speech and word finding difficulties, amnesia and difficulty regulating emotions, dizziness, vertigo, disorientation, confusion and fatigue.
39In his section for central and peripheral nervous system dysfunction, Dr. Basile assigned 4% for aphasia or communication disturbances, 14% for mental status and integrative functioning abilities, and 10% for emotional or behavioral disturbances. He explains that he used the greatest of the three to determine an impairment rating of 14% and references Tables 1, 2 and 3 found at pages 141 and 142 of the Guides. Dr. Moddel disagreed with Dr. Basile’s ratings and opined that the applicant’s emotional issues should be assessed by a psychiatrist. He assigned 0%.
40I do not accept Dr. Basile’s finding of 14%. I find that he has not provided sufficient analysis of how his observations were converted to the assigned ratings or how these ratings are in line with the Guides. I also find that the ratings are not supported by the medical documentation. I note specifically the November 3, 2023 discharge summary from CAMH which makes the following observations regarding the applicant:
Speech: normal rate, rhythm and prosody
Thought process: logical, coherent
Cognition: alert, attentive, oriented x3
Judgment: no evidence of impaired judgment
41I assign 0% for the central and peripheral nervous system.
iv. Sleep and Arousal Disorders, and Sexual Dysfunction
42Dr. Basile assigned 3% WPI for sleep and arousal disorders while Dr. Moddel opined that the applicant’s difficulties with sleep are not attributed to a neurologic impairment of brain function.
43I do not accept Dr. Basile 3% rating because although he infers it was caused by the applicant’s post-concussive syndrome, he does not explain if or how the applicant’s pre-existing sleep dysfunction factors into his finding or how his reference to Table 6 of page 143 of the Guides supports his rating.
44I note that Dr. Basile’s addendum report adds a rating of 3% WPI for sexual dysfunction but nowhere in his report does he explain this “new” finding or how he determined its rating. Without a sufficient analysis provided, I find that this rating might also be duplicative with his previous rating of 3% for “sleep and arousal disorders”.
45I therefore assign 0% for each sleep and arousal disorders, and sexual dysfunction.
v. Hearing
46Dr. Basile assigned a rating of 2% for hearing (tinnitus). The respondent’s expert did not refute the applicant’s reports of tinnitus or the 2% assigned for hearing. As there is agreement between the experts, I accept the 2% WPI for hearing.
vi. Vertigo
47In Dr. Basile’s first addendum report he assigned 4% for vertigo however, I note that his finding is inconsistent with his first report which states “there was some dizziness but no true vertigo”. Dr. Sekyi-Otu opined that the applicant suffered post-traumatic positional vertigo which he found to be a Class 1 with no evidence of any supported objective finding. As such, he assigned 0%.
48Because of the inconsistencies in Dr. Basile’s reports and Dr. Sekyi-Otu’s opinion supported by his proper use of the Guides, I agree with Dr. Sekyi-Out and assign 0%.
Ulnar sensory neuropathy
49Dr. Moddel opined that his only neurological finding is ulnar sensory neuropathy for which he assigned 1%. He explained that this could be related to the injury to the applicant’s right arm. Following Table 15, Dr. Moddel explains that the maximal sensory loss to the ulnar nerve would be 7% of the upper extremity which would be a 4% WPI. Following Table 11 (page 48), he assesses this as a Grade 2 and as such, concludes that 25% of the 4% results in a 1% WPI rating. Dr. Basile disagrees with Dr. Moddel and says that the ulnar sensory neuropathy is more likely a C8 cervical radiculopathy at the neck.
50Based on Dr. Moddel’s analysis and his proper use of the Guides, I accept the 1% rating for ulnar sensory neuropathy.
Medication
51Both the applicant’s expert (Dr. Getahun) and the respondent’s expert (Dr. Sekyi-Otu) assigned 3% WPI for medication. As there is agreement between the experts, I accept this rating.
Scarring
52Dr. Getahun assigned a rating of 5% for scarring and explained that the applicant suffered significant scars to her right wrist and right knee which she finds disfiguring and limits her activities by virtue of trying to conceal them. He also notes that she continues to have pain associated with her surgical interventions and found that this warrants a Class 1 impairment rating of 5% WPI.
53Dr. Sekyi-Otu disagreed with the 5% rating noting that the scars healed well and there were no symptoms related to any of her accident-related scars.
54I accept Dr. Getahun’s rating of 5% and find that his explanation for the rating is in line with the guidance provided by the Guides (4th edition) at Table 2, page 280.
55In summary and for the reasons discussed above regarding the neurological impairments, I assign 31% for the musculoskeletal impairment, 2% for hearing, 5% for scarring, 1% for ulnar sensory neuropathy and 3% for medication, for a total physical WPI rating of 38%.
Mental and behavioural impairment
56To obtain the WPI rating under Chapter 14 of the 6th edition of the Guides, three scales are administered by assessors to determine a person’s score which include: the Brief Psychiatric Rating Scale (BPRS), the Global Assessment of Function (GAF), and the Psychiatric Impairment Rating Scale (PIRS). The median score is then taken from the three scales and represents a person’s total WPI from a psychological perspective.
57The applicant relies on the assessment of Dr. Frtusova, neuropsychologist and clinical psychologist, who diagnosed her with Persistent Depressive Disorder (moderate to severe, accompanied by anxious distress), Post-Traumatic Stress Disorder (pre-existing but exacerbated by the stress directly and indirectly related to the subject accident), and Adjustment Disorder with Anxiety (including road-related anxiety and distress regarding her health, physical challenges, and cognitive difficulties following the subject accident). Dr. Frtusova administered the three scales outlined in Chapter 14, which, when converted into a WPI, equalled 15%.
58The respondent relies on the assessment of Dr. Sivasubramanian, psychiatrist, who also diagnosed the applicant with Persistent Depressive Disorder (pre-existing condition) as well as Complex Post-Traumatic Stress Disorder (also pre-existing). Dr. Sivasubramanian’s scores on the psychiatric scales, when converted into a WPI, equalled 5%.
59The results stemming from the administration of the three scales are as follows:
Assessor
GAF
PIRS
BPRS
WPI %
Dr. Frtusova
15%
10%
20%
15%
Dr. Sivasubramanian
5%
5%
15%
5%
60The applicant submits that the subject accident exacerbated her pre-existing psychological condition. She also submits that she has developed cognitive issues including forgetfulness, distractibility, difficulty processing information, decreased cognitive endurance and word-find difficulties, impaired attention, memory and decision-making abilities. She struggles with meal preparation, hygiene, outdoor mobility, and medication management. She also requires assistance with these tasks and reports significant difficulties in maintaining her home and performing household chores.
61The applicant further submits that Dr. Frtusova’s report should be given more weight because of her detailed diagnostic interview, administration of questionnaires and collateral interview with the applicant’s sister. She argues that Dr. Frtusova acknowledges the applicant’s pre-existing mental health history and explains how her condition significantly worsened as a direct result of the accident. She insists that the respondent’s expert attributed all of the applicant’s presentation to her pre-existing mental health issues with any post-accident issues being a result of “unrelated psychosocial stressors”, and he fails to consider the applicant’s deterioration and admission to CAMH. She submits that Dr. Sivasubramanian’s approach is unbalanced, incomplete and directed towards achieving an intended result.
62The respondent submits that contrary to the applicant’s submissions, she was not highly functional, nor was she living a stable life at the time of the accident. It submits she was experiencing long-term significant health issues, in particular, mental health issues which were impacting her relationships and function. The applicant’s concerns after early 2021 have primarily been psychological in nature and pre-existed and/or are completely unrelated to the accident, namely the breakdown of the applicant’s marriage, work-related stress; childhood trauma, the death of a close friend, and conflict with her daughter and other family members.
63I prefer the report prepared by Dr. Sivasubramanian and find that its observations and findings are more in line with the medical documentation including:
a) The applicant has a significant psychological history including diagnoses of major depressive disorder and complex PTSD which pre-date the subject accident.
b) While in hospital, the applicant reported that she has a history of passive suicidal thoughts which reoccur every one or two years, but which worsened in the month prior to the accident.
c) Based on the medical evidence, her post-accident psychological and emotional complaints were mostly focused on issues with her husband and daughter rather than the subject accident. For example, she reported to her psychiatrist on November 14, 2019 that the psychological issues with her husband and child were more problematic than the effects of the accident. Her social worker noted on January 11, 2020 that their conversation focused on her daughter and that the applicant was fixated with concerns about her child.
d) The applicant’s admission to CAMH in October 2023 was sought voluntarily by the applicant and its records show that the reason given was because of her symptoms of depression which she has been experiencing all her life.
e) There are inconsistencies in the medical documentation regarding her cognitive complaints (speech, thought process, cognition and judgement) as noted above at paragraph 39.
f) She has returned to work and earns a substantial income.
g) She is independent of her personal care and largely independent of her household and housekeeping responsibilities.
64In any event, I note that even if I accepted Dr. Frtusova’s mental and behavioural rating of 15% WPI, and combined it with the total physical WPI found above (38%), this would result in a combined physical and psychological WPI of 47% which is below the 55% WPI threshold.
65As a result, I find that the applicant has not met her onus in proving on a balance of probabilities that she meets the 55% threshold to qualify for CAT status under Criterion 7.
Interest
66Interest applies on the payment of any overdue benefits, pursuant to section 51 of the Schedule. No substantive benefits were in dispute and no benefits are overdue, therefore no interest is payable.
ORDER
67For all of the above reasons, I make the following order:
i. The applicant did not sustain a CAT impairment.
ii. The applicant is not entitled to interest.
iii. The application is dismissed.
Released: November 17, 2025
Trina Morissette
Vice-Chair