Licence Appeal Tribunal File Number: 24-008394/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:
Mohammad Mansuri
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Steve Gilchrist
Harry Adamidis
APPEARANCES:
For the Applicant:
Ryan Naimark, Counsel
Dana Yoon, Counsel
For the Respondent:
Kadey B. J. Schultz, Counsel
Colin MacDonald, Counsel
Court Reporter:
Rana Encol
Translators:
Ida Pakdaman, Farsi language
Abdulrahman Ibrahimi, Farsi language
HEARD: by Videoconference:
April 22, 2025 – April 30, 2025
OVERVIEW
1Mohammad Mansuri, the applicant, was involved in an automobile accident on May 4, 2018, 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, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Has the applicant sustained a catastrophic impairment as defined by the Schedule?
Is the applicant entitled to medication submitted in an OCF-6 as follows:
(a) $971.60 submitted on June 27, 2023?
(b) $524.53 submitted on August 23, 2023?
(c) $889.07 submitted on December 11, 2023?
(d) $1,315.01 submitted on February 7, 2024?
(e) $909.07 submitted on April 1, 2024?
(f) $436.26 submitted on June 19, 2024?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
Withdrawn issues
3The applicant withdrew the following issues listed in the case conference report and order: 2(a), 2(b), and 2(c). In addition, the applicant reduced the quantum of additional issues 2(e), 2(f), 2(g), 2(h) and 2(i) in the case conference report and order to reflect the removal of specific medications. The reduced amounts are shown, above, in the listing of issues in dispute. The applicant also withdrew issue 3 in the case conference report and order, prior to the hearing, but then reinstated the issue, at the hearing.
RESULT
i. The applicant is not catastrophically impaired.
ii. The applicant is not entitled to the medical expenses listed in the application.
iii. The respondent is not liable to pay an award under s. 10 of O. Reg. 664.
iv. The applicant is not entitled to interest as there are no payments overdue for the benefits claimed.
PReliminary ISSUES
1st Motion of the Respondent
4Prior to the hearing, the respondent filed a motion, which was heard at the hearing, seeking the following two items of relief:
i. This motion is for an Order excluding the expert reports of Dr. Mark Friedlander, and all related evidence, pursuant to binding Divisional Court decisions; and,
ii. In the alternative, the Respondent requests the Tribunal enforce the Summons issued for Dr. Friedlander on March 26, 2025
5After hearing from both parties, part (I) of the motion was deemed to be premature and part (II) of the motion was denied, orally, with written reasons to follow. These are our reasons.
6This matter was the subject of a Case Conference Report and Order (“CCRO”), issued by Adjudicator Genevieve Painchaud on October 29, 2024. The CCRO required the applicant to list the witnesses he intended to call for the hearing.
7The applicant’s witness list and statement of witnesses’ anticipated evidence, dated March 21, 2025, included Dr. Friedlander as an expert witness. Dr. Friedlander was the author of the Application for Catastrophic Impairment (OCF-19), the and the Chronic Pain Catastrophic Rebuttal Report. Dr. Friedlander’s opinion evidence is also relied upon in other medical reports submitted by the applicant.
8Dr. Friedlander was issued a summons to attend the hearing on March 26, 2025. It was served on him on April 1, 2025, receipt of which he acknowledged, by email, on April 2, 2025. In that email, Dr. Friedlander indicated it was “likely that he will be unavailable”.
9On April 14, 2025, correspondence was exchanged between the parties setting out the witness schedule for the hearing and Dr. Friedlander was included in that schedule.
10The applicant’s counsel claims Dr. Friedlander advised him, on April 16, 2025, that he was planning on being out of the country, in a remote section of South Africa, without access to any phone or internet service, on the days the hearing is scheduled to take place.
11The applicant’s counsel submits that he made all possible efforts to ensure the participation of his witnesses, including Dr. Friedlander, and the actions of the witness should not prejudice the rights of the applicant. The applicant’s counsel submits that the report by Dr. Friedlander is an important part of the applicant’s ability to meet the onus of proving the claims in his application.
12Within 48 hours of the notice, by the applicant, that Dr. Friedlander would not be appearing, the respondent sent the applicant a written objection and a request that Dr. Friedlander’s reports and related evidence be withdrawn. The applicant refused that request, which resulted in the respondent filing this Motion.
13The respondent claims that it should be able to rely on the witness list supplied by the applicant. It cited legal precedent supporting the right of a party to test the evidence of a particular witness by being able to cross-examine the witness on that evidence and that denying the respondent the ability to cross-examine Dr. Friedlander would prejudice the rights of the respondent and be procedurally unfair. They cited the following authorities.
14Section 10.1(b) of the Statutory Powers Procedure Act provides that a party may “conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding.
15LAT Rule 9.4.3 provides that “each party must file with the Tribunal and serve on the other party: a. a list of witnesses the party will call to give evidence at the hearing”.
16The Divisional Court decision in Plante v. Economical Insurance Company, 2024 ONSC 7171 (para 70) found that “procedural fairness entitles a party to know the case to be met and contradict the evidence submitted by other parties”.The court emphasized that litigants are entitled to know the case they must meet and to challenge the evidence presented against them. Denying the opportunity to cross-examine a key witness deprived the applicant of a fundamental right to test the reliability of the evidence. The Court also held in Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198 that “where an expert did not attend for cross-examination the LAT should not have admitted the report of the expert”.
17In Vivekenantham (para 63), the Divisional Court applied Shahin v. Intact, determined that once an expert refused to attend and be cross-examined, their evidence “infected the Tribunal’s conclusions of the central issues governing its decision” and that “once it was clear [the expert] was not going to appear at the hearing to be cross-examined, the [Tribunal] should have refused to admit his report”.
18Finally, the respondent cited this Tribunal’s decision of Gordan v. Certas Direct, 2025 CanLII 15990 (ON LAT) wherein the applicant moved to be allowed to cross-examine an expert after the respondent’s decision to remove him from the hearing schedule at the last minute. Adjudicator Jarda held (para 16) that “the applicant was entitled to rely on the respondent’s list of witnesses who might be called at the hearing as part of the respondent’s case” and that “based on Plante it would be procedurally unfair to allow [the witness’] reports to be entered into evidence unchallenged”.
19We considered the submissions and denied the first request on the basis that it was premature, and reserved a decision on the second request, pending the outcome of the applicant’s efforts to secure the attendance of Dr. Friedlander. The applicant was instructed to continue his efforts to contact Dr. Friedlander and secure his participation before the end of the hearing.
20On the fourth day of the hearing, the applicant’s counsel informed the Tribunal that he had been able to make a brief email contact with Dr. Friedlander, who apologized but reiterated that he was about to lose internet access and would not have it again until May 11, 2025, when he was scheduled to return to Canada.
21At that point, we asked the parties to provide submissions on the weight which should be given to Dr. Friedlander’s report when considering the evidence. In response, the respondent filed an updated motion.
2nd Motion of the Respondent
22The respondent brought this second motion, with the consent of the applicant, which was heard at the hearing, that the remainder of the hearing commenced on April 22, 2025, be adjourned to a date after May 11, 2025, to allow for the cross-examination of Dr. Friedlander prior to the start of the Respondent’s case.
23After hearing from both parties, we denied the requested adjournment but, because of the time spent on motions and given the time set aside for the hearing, we agreed that closing arguments could be made in writing. We invited submissions by the parties as to the timetable for those submissions.
24In his final written submissions, the applicant provided several arguments and authorities which he suggested supported the position that this panel should not be bound by the Divisional Court rulings in Plante and Vivekenantham, as well as s.10.1(b) of the SPPA, and should continue to give full weight to the reports authored by Dr. Friedlander.
25The applicant asserts that in K.H. v. Northbridge, 2019 CanLII 101613 (ON LAT), the Tribunal held that an expert’s non-attendance at the hearing due to personal scheduling conflicts, without any indication of bad faith, was not sufficient grounds to discount their evidence when the other party failed to provide timely notice of cross-examination. The applicant also cites Islam v. TTC, 2022 CanLII 45247 (para 23) which held that “the weight to be given to unchallenged expert evidence depends on the fairness of the process and the conduct of the parties”.
26The applicant argues that the Tribunal should consider the failure of the respondent to file a challenge, under LAT Rule 10.4, to the qualifications or reports of Dr. Friedlander until April 18, 2025 and only after being informed the witness would not be attending. It was only then that the respondent indicated the need for cross-examination.
27In our view, the chronology of the preparatory steps for this hearing suggests that it is the applicant whose actions were deficient and whose conduct is directly responsible for the late notice of the unavailability of Dr. Friedlander, which makes it very relevant, under Islam v. TTC, for the adjudicators to consider the weight to be given the unchallenged expert evidence.
28As is its practice, when an oral hearing is ordered during a case conference, the Tribunal sends correspondence to each party asking them to select three options, from a list of ten available weeks, that best suit their schedule. The parties confirmed their availability for the dates they had selected.
29Over five months prior to the hearing and prior to the submission of the hearing dates mutually agreeable to the respondent, the applicant had the opportunity, indeed, the necessity, to canvass his witnesses and ascertain their available throughout the ten weeks on offer. We find it is unreasonable to suggest that Dr. Friedlander would undertake a 21-day trip to a remote part of South Africa, without some considerable advance planning. It was incumbent upon the applicant to determine the most efficient and accurate means of responding to the scheduling request and, once a preferred hearing commencement date was selected, it was equally incumbent on the applicant to ensure that a mechanism was in place which would have permitted him to inform the Tribunal, and the respondent, in a timely fashion, if a scheduling issue arose.
30Even in the circumstances before us, the applicant was advised by the witness, on April 2, 2025, that “it was likely that he would be unavailable”. There is nothing before us that suggested the applicant relayed that information to the respondent before April 16, 2025, so the responsibility for any late reaction by the respondent falls squarely on the shoulders of the applicant.
31The respondent referenced an identical circumstance in a previous Tribunal hearing on this matter wherein Dr. Friedlander notified the applicant, one day prior to the commencement of the hearing for File No. 23-004075/AABS that he would be travelling and unable to respond to the summons to appear. In the letter requesting the withdrawal of his application for dispute resolution, the applicant wrote:
“Despite being put on notice for this hearing, Dr. Mark Friedlander, one of our key witnesses for the catastrophic impairment issue, is not able to attend the upcoming hearing. He has recently advised that he will be out of the country during the dates for this hearing and is in circumstances that make appearing for this hearing impossible. We have spent time pleading with him to attend during the days leading up to the hearing. However, he has made it abundantly clear today that he will not be attending to testify given his circumstances. Proceeding to the hearing on the catastrophic impairment issue, which is the principle [sic] issue in dispute, without one of our key witnesses present to testify is prejudicial to our client's case and as such we have no choice but to withdraw the Application." (emphasis ours)
32This is the second time, in two years, on two separate proceedings, that this witness has failed to respond to the summons to appear. It is not the respondent’s fault that the witness failed to attend; rather, it is the applicant’s failure to ensure that his selection of hearing days coincided with the availability of all his witnesses, particularly one he identified as his “key” witness. The actions of Dr. Friedlander in failing to fulfill his legal obligations, after being served with the summons to appear, on two separate matters, would seem to directly obviate the applicability of K.H. v. Northbridge.
33As a consequence of Dr. Friedlander’s absence last year, the applicant withdrew the previous Tribunal application, but we were offered no rationale why, when faced with exactly the same absence for this application, it should proceed to a hearing. Ultimately, we respect the fact that the decision rests with the applicant, but we are left with no explanation why Dr. Friedlander’s absence was “prejudicial” to the client’s case last year, prompting the withdrawal, but not this year.
34There would clearly be prejudice caused to the respondent by the absence of this witness preventing the respondent from being able to cross-examine and test the witness’ report. We find that the facts in this case are similar to those in Plante, which was a binding decision by the Divisional Court and we give greater weight to the decisions cited by the respondent than those provided by the applicant.
35Based on these precedents, and in the absence of any compelling argument to the contrary, we have considered all the submissions and we find the respondent had the right to cross-examine Dr. Friedlander and that the applicant’s failure to produce Dr. Friedlander created a significant procedural fairness issue.
36Therefore, we find that the reports or sections of reports authored by Dr. Friedlander will be given no weight in our consideration of the issues in dispute.
1st Motion of the Applicant
37Prior to the hearing, the applicant filed a motion seeking an Order excluding three of the witnesses called by the respondent, namely the applicant’s brothers, Murtaza, Javid and Rohulla Mansuri. The applicant moves to exclude these witnesses as the respondent is calling them as witnesses for the respondent’s case and has provided no summaries of their anticipated evidence in breach of Rule 9.4.3.
38After hearing from both the parties, the applicant’s motion was denied and we ruled that the witnesses would be allowed to testify, on the condition that the respondent would conduct the examination-in-chief and the applicant would be able to cross-examine. These are our reasons.
39Murtaza Mansuri, Javid Mansuri, and Mohammad Mansuri (“the Mansuri brothers”) are brothers. Murtaza Mansuri was involved in two separate accidents, one on April 28, 2016, and the other on January 6, 2018. Javid Mansuri and Mohammad Mansuri were involved in an accident on May 4, 2018. Each of the Mansuri brothers sought benefits pursuant to the applicable version of the Statutory Accident Benefits Schedule.
40The applicants were denied certain benefits by the respondent, and they applied to the Tribunal. In total, there are five applications before the Tribunal arising from the 2016 and 2018 accidents.
41The applicant argued that the inclusion of the Mansuri brothers’ surprise viva voce evidence would be highly prejudicial to the Applicant as the brothers will be called after the close of the Applicant’s case.
42In addition, the applicant argued that the Mansuri brothers should be barred from testifying as witnesses, due to lack of relevance of the two brothers not involved in the subject accident, a lack of medical expertise, duplication (i.e. he suggested perhaps allowing one brother but not three), and because their prior testimony will colour their expectation of the responses expected in this case.
43The applicant further argued that, even if the Mansuri brothers were allowed to participate as witnesses, the respondent should be required to begin with examination-in-chief, rather than cross-examination. He cited Sahadeo v Pafco Insurance Company, 2022 CanLII 20128 (ON LAT) as an authority on this point.
44The applicant argued that, contrary to Rule 9.4.3(b), the respondent did not supply an adequate summary of the evidence each witness will give at the hearing, instead, simply reiterating the issues in dispute as the “evidence” for each of the Mansuri brothers.
45In our preliminary decision, on this motion, we agreed with the applicant that the summary of anticipated evidence was inadequate and the respondent was ordered to submit a proper summary for each of the three witnesses, by 9:00 am on the 5th day of the hearing, at which time the Tribunal would render a decision on the evidentiary value which might be served by the participation of those witnesses.
46The respondent did supply a more detailed summary, by the appointed time, which complied with the expectation of Rule 9.4.3(b) and the respondent indicated she was calling the witnesses for cross-examination.
47The respondent noted that the witnesses were listed in the CCRO for this matter and were included in the list of witnesses provided by the respondent for the hearing.
48In rebuttal of the arguments made by the applicant, the respondent argued that this specific issue had already been argued and ruled upon at a previous Tribunal hearing adjudicated by Vice-Chair Theresa McGee in LAT 20-001365/AABS on September 28, 2022. The applicant had already heard the submissions of the respondent and should, therefore, have a clear understanding of the nature and the content of the information which had been gathered from the Mansuri brothers, related to their accidents, especially the shared accident involving Javid and Mohammad Mansuri.
49As required under the Schedule, in order to initiate consideration by the insurance company of his prospective coverage for medical expenses, the applicant completed an Application for Accident Benefits (OCF-1) form and submitted it to the respondent on June 20, 2024. The wording in the OCF-1, on the signature page, provides an express notice by the applicant that the respondent may, in the course of determining the eligibility of the applicant, collect information from a variety of sources.
50It is on the basis of the signed OCF-1 that the respondent asserts that the applicant waived the right to object to the collection of relevant information from the Mansuri brothers, and that the respondent is entitled to use that information in her examination of the witnesses and the applicant.
51After considering the submissions of the parties and considering Rule 9.3 and 9.4, and the replacement witness summary, we determined that there was probative value in allowing the respondent to call the Mansuri brothers as witnesses.The applicant’s motion was denied and we ruled that the Mansuri brothers would be allowed to testify. We did agree with the applicant that this approval would be conditional on the respondent conducting the examination-in-chief of the witnesses and the applicant would be entitled to cross-examine them.
2nd Motion of the Applicant
52The applicant brought a motion to disqualify Ms. Kadey Schultz, Mr. Colin MacDonald, and Schultz Law Group LLP as lawyers for the respondent due to conflict of interest, and to adjourn this hearing for 60 days to allow the respondent to retain new counsel, and for the applicant to recover costs thrown away.
53After hearing from both parties, the applicant’s motion was denied, orally, with written reasons to follow. Here are our reasons.
54The applicant asserted that the Respondent’s counsel had been retained in two separate Tribunal hearings which dealt with the claims arising from accidents suffered by two brothers of the applicant in this hearing. For this reason, the respondent’s counsel was privy to confidential medical evidence and the testimony of those brothers.
55The respondent has called those brothers, plus one other who had not been involved in an accident but who had been called as a witness at those other cases, as witnesses in this case.
56The applicant contends that this gives the respondent’s counsel inside knowledge which has been denied to the applicant. This knowledge will give the respondent an unfair advantage in her questioning of the witness plus she will utilize evidence, from the other cases, which would otherwise not be in evidence for this case.
57Knowledge of counsel is not evidence. There has to be an evidentiary basis for any question to be asked. Given that limitation, what counsel might or might not know is immaterial and the applicant may still object to any question posed by the respondent’s counsel.
58The issue of fairness cuts both ways. The respondent has invested in the preparation and presentation of their case and there is nothing about the relationship between the respondent counsel and the Mansuri brothers which wasn’t known before the case conference. The issue should have properly been raised there, as it had been in a previous Tribunal application for the subject accident. It is not acceptable, once the hearing was underway, to seek to remove counsel.
59We note that the applicant brought a virtually identical motion in a previous Tribunal applicationdealing with the same accident. Vice-Chair Theresa McGee ruled against the applicant and we see nothing before us, in this case, to suggest the logic behind her ruling is not equally applicable here.
60After our original ruling dismissing the applicant’s motion, the respondent began her questioning of Murtaza Mansuri. The applicant restated his objection, noting that our original decision was based on theoretical considerations and now the respondent had, in the content of her question, demonstrated the respondent’s knowledge of the specifics of the accident benefit claims of the other brothers. At each instance we denied the applicant’s motion for the reasons noted previously.
TIMETABLE FOR WRITTEN SUBMISSIONS
61After the conclusion of the hearing, the Tribunal ordered a timetable for written submissions suggested by both parties on consent. We received those written submissions and considered them in reaching this decision.
CATASTROPHIC IMPAIRMENT DETERMINATION
RESULT
62We find that the applicant has not demonstrated, on a balance of probabilities, that he is catastrophically impaired.
ANALYSIS AND REASONS
63The test to determine whether the applicant is catastrophically impaired is a legal test and not a medical one. The criteria to establish a catastrophic impairment are found under s. 3.1(1) of the Schedule. In this case, the applicant claims that he is catastrophically impaired under Criterion 6, Criterion 7 and Criterion 8, and he relies on an Application for Determination of Catastrophic Impairment (OCF-19) dated February 22, 2021, completed by Dr. Mark Friedlander, anesthesiologist.
64Before dealing with the specific analyses associated with each of the CAT Criteria, we would offer some general observations based on our review of the evidence of the applicant, the other witnesses and the medical reports before us.
65There is consistency in the commentary related to the applicant’s general attitude, post-accident. There is consensus that he has become withdrawn and anti-social, has limited engagement with his family members and almost no engagement outside the family except for medical appointments. He continues to self-report significant levels of localized pain, particularly in his right shoulder, left knee and headaches. He reports difficulty sleeping, as a result of that pain, and due to issues with occasional audio and visual hallucinations.
66The applicant relies on the multi-disciplinary CAT reports of HAL Disability Management (“HAL”), in which he was assessed by Dr. Friedlander, anaesthesiologist; Varun Madan, occupational therapist (“OT Madan”); Dr. Basile, neurologist; and Dr. Quinn, psychiatrist, with the executive summary completed by Dr. Friedlander.
67In sum, the assessors contributing to the HAL reports concluded that the applicant sustained a 62% WPI rating under Criterion 6 and a 69% WPI rating under Criterion 7 and therefore meets the CAT threshold for both Criteria.
68The applicant argues that the opinions of his CAT assessors should be preferred because his assessments were more thorough. In addition, his assessors applied and explained their WPI ratings pursuant to the AMA Guides. The applicant also submits that, notwithstanding his non-attendance at the hearing, we should give full weight to the reports by Dr. Friedlander. As we have ruled, Dr. Friedlander’s failure to respond to the summons to attend the hearing created a significant prejudice to the respondent and we will not be giving any weight to his reports. We will, however, fully consider the other medical experts whose opinions are contained and summarized in the applicant’s submissions.
69The respondent relies on the multidisciplinary insurer examination (“IE”) CAT reports of Direct Independent Medical Evaluations (“Direct”) in which the applicant was assessed by Dr. Dessouki, physiatrist; Dr. Chandrasena, psychiatrist; and Leslie Hisey, occupational therapist (“OT Hisey”), with the executive summary prepared by Dr. Platnick. Direct concluded that the applicant had a 3 WPI% for Criterion 6 and 20% WPI for Criterion 7, which meant the applicant met neither Criteria.
70The respondent submits that the reports and evidence of its assessors should be preferred because the applicant was a less than cooperative participant in the testing done by the various assessors and refused to participate in many of the tests he was assigned.
CRITERION 6
71A catastrophic impairment under Criterion 6 results when, as a result of an accident, an insured person sustains “a physical impairment or combination of physical impairments that, in accordance with the AMA Guides, 4th Edition, results in 55% or more physical impairment of the whole person”.
72The following chart provides a summary of both parties’ assessors’ ratings and the Tribunal’s findings regarding Criteria 6 and 7. Our rationale will follow.
Chart 1 – CAT Determination Comparison – Criteria 6 and 7
| Impairment | Original Applicant CAT Summary | Applicant’s Summary without Dr. Friedlander | Respondent’s CAT Summary | Tribunal’s Finding |
|---|---|---|---|---|
| Physical Impairments | ||||
| Gait impairment | 5% | 5% | 0% | 5% |
| Disturbance of consciousness and awareness | 15% | 15% | 0% | 0% |
| Right shoulder impairment | 13% | 0% | 0% | 0% |
| Cervicogenic headaches | 10% | 10% | 0% | 0% |
| Left shoulder impairment | 7% | 0% | 0% | 0% |
| Spinal impairment cervical | 5% | 5% | 0% | 0% |
| Spinal impairment lumbosacral | 5% | 5% | 0% | 0% |
| Urinary dysfunction of the bladder | 5% | 5% | 0% | 0% |
| Sexual dysfunction | 5% | 5% | 0% | 0% |
| Medication | 3% | 3% | 3% | 3% |
| Migraine headaches | 2% | 2% | 0% | 0% |
| Sleep and arousal disorders | 2% | 2% | 0% | 2% |
| Tension headaches | 1% | 1% | 0% | 0% |
| Total WPI for Physical Impairments | 62% | 46% | 3% | 10% |
| Psychological Impairments | ||||
| Psychiatric | 40% | 40% | 20% | 40% |
| Total Combined Ratings | ||||
| Total WPI% | 69% | 65% | 20% | 46% |
73We find it unnecessary to analyze the one area where the parties agreed, namely medication.
Right shoulder and left shoulder impairments
74We find the applicant has a 0% WPI rating for both the right shoulder and left shoulder impairments.
75Dr. Friedlander was the sole author of the ratings on the right and left shoulder in his original report. We have already ruled that Dr. Friedlander’s evidence shall have no weight. As the applicant does not adduce any evidence from another source about his bilateral shoulders and the burden of proof being on the applicant to prove the claimed WPI rating, we find that there is no rating to assign in respect of the bilateral shoulders.
76For this reason, we have determined that 0% WPI rating is appropriate for both the right and left shoulder impairments.
Headaches
77We find the applicant has a 0% WPI rating for cervicogenic, migraine and tension headaches.
78Dr. Basile had concluded the applicant had a 10% WPI for cervicogenic headaches, which he recognized as an impairment distinct from migraine and tension headaches.
79Table 23, Chapter 4 of the Guides rates sensory impairment of the spinal nerves in the head and neck region due to a sensory abnormalities or loss of strength. This is done by identifying the applicable percentage of impairment from Table 23. The severity of the impairment is then identified in Table 20 and the rater decides on the percentage of sensory impairment. The final step is to multiply the percentage from Table 23 with the percentage derived from Table 20 to determine the WPI rating.
80Dr. Basile’s report provides a 10% WPI rating, but he does not show any of the above noted steps that are needed to make this rating. For example, he does not identify what percentage of sensory impairment was used from Table 20. Consequently, we do not accept this rating because the report does not demonstrate that the process in the Guides was followed to reach this WPI rating, and Dr. Basile provides no explanation as to how this rating was formulated.
81Dr. Basile provides a 2% WPI for migraine headaches and a 1% WPI rating for tension headaches but does not state what table he used to make these ratings. Again, a WPI rating cannot be understood without referencing the correct table used to make that rating. For this reason, no rating can be assigned and, instead, we find a 0% WPI is appropriate for headaches.
Disturbance of consciousness and awareness
82We find the applicant has a 0% WPI rating for disturbance of consciousness and awareness.
83In his report, Dr. Basile provides two ratings under the category of “Central and Peripheral Nervous System Function”. He had considered a 15% WPI for “Disturbance of Consciousness and Awareness” and a 10% WPI for “Emotional and Behavioural Disturbances”. In this category, only the highest WPI rating forms a component of the overall Criterion 6 or 7 rating.
84Once again, Dr. Basile provides no justification for his choices, in both of those nervous system impairment categories. He is asking us to connect the dots between the commentary in the report that details his observations, and the unclear means by which he determines these rating WPI percentages.
85In that commentary, Dr. Basile observes that the medication that the applicant was taking might well be the cause of his headaches and sleep disorders. That, alone, forces us to consider that a foundation for the choice of WPI rating, in this category, is lacking.
86For these reasons, we find that a rating of 0% WPI for Disturbance of Consciousness and Awareness is appropriate.
Spinal impairments
87We find the applicant has a 0% WPI rating for spinal impairments.
88Our consideration of this issue is strongly influenced by the fact that the applicant had suffered a significant lower back injury in the year prior to the accident. There is evidence that the applicant underwent an MRI at the Grand River Hospital on December 27, 2017 that led to a diagnosis of a “multi-level disc bulge”.
89Dr. Basile’s report is of minimal assistance as he offers diametrically contrary observations in respect of the nature and cause of the lower back pain reported by the applicant. In the introductory section of his report, he notes: “[the applicant’s] past health history is unremarkable aside from some lower back pain after he injured his back at the gym. This was manageable for him prior to the accident” but, during his detailed analysis of each pain complaint by the applicant, under “Bilateral Back Pain” he states: “[the applicant] did not have a history of lower back pain prior to the accident”.
90Dr. Basile then contradicts his second statement in his analysis of the specific results of the MRIs taken before and after the accident, wherein he offers the observation: “No significant change since previous study from December 2017.” Dr. Basile gives us no evidence to suggest that any back pain experienced by the applicant does not originate in the weight-lifting accident he experienced in 2017.
91The applicant’s occupational therapist, OT Madan, noted “Back pain post workout – Approximately 2 years ago” (note: his assessment was performed on June 4, 2020, which suggests a less than accurate characterization of the correct date). Similarly, despite the fact that OT Madan suggests that one of the medical files he reviewed was the CNRs of the Grand River Hospital dated February 24, 2020, which included copies of both the original MRI on December 26, 2017 and the MRI taken one year after the accident, on April 21, 2019, he offers no evidence that contradicts the hospital’s finding in the second MRI, which we detail below.
92The Chronic Pain Assessment performed by Dr. Subhra Mohapatra on May 24, 2019 cites both the Grand River Hospital MRI, pre-accident in 2017, as well as the MRI obtained from the same hospital on April 21, 2019, along with the accompanying comments by the hospital. The analysis of those MRIs indicates:
MRI of Lumbar spine, Dec 27, 2017 -L4/L5 Disc bulge effacing thecal sac right lateral recess narrowing encroachment of neural foramen
MRI Lumbar Spine, April 21, 2019 -Disc bulge at L3-I.4 and L4-L5 levels. More pronounced at L4/1,5. No significant change since Dec. 2017. (emphasis ours)
93During the insurer’s physiatry examination by Dr. Tonya Bullard, on February 20, 2020, she noted that the applicant was wearing both a back brace and a knee brace. This is the only evidence of any mobility support for his lower back.
94By the date of the examination by OT Hisey, on August 20, 2021, and since, we were provided no evidence of mobility aids other than the single-point cane. It is clear that, whatever need of additional support the applicant may have needed, in the months immediately following the accident, he had recovered sufficiently to no longer require neither a back brace nor a knee brace.
95There is insufficient evidence before us that back pain suffered by the applicant was caused by the motor vehicle accident. It may well be that the applicant continues to experience pain but there is sufficient evidence that he had a pre-existing medical condition which is more likely the root cause. For this reason, we consider a 0% WPI rating for cervical and lumbosacral spinal impairment to be appropriate.
Urinary dysfunction of the bladder
96We find the applicant has a 0% WPI rating for urinary dysfunction of the bladder.
97Dr. Basile reported that there was “no urinary retention”, “no bowel or bladder incontinence” and “some urinary incontinence when he was on nerve blocks for the lower back but this has improved”. This is repeated by Dr. Mohapatra in his chronic pain assessment on May 10, 2019, wherein he noted “[applicant] has no bowel or bladder symptoms”.
98The s.44 assessments took place between 6 and 11 months after the applicant’s s.25 assessments. In the executive summary of the insurer’s examination, performed on September 20, 2021, Dr. Platnick observed “[t]here were no bowel or bladder complaints identified”. Given that more time had transpired and the applicant had had a chance at further recovery, we find that more weight should be given to the respondent’s evidence in this matter.
99As part of a video appointment with Dr. Gemah Moammer, spine surgeon, on May 7, 2020, the applicant reported “none” to the question of bladder dysfunction on the patient intake form.
100Finally, we have been presented with no evidence that the accident caused any injury or trauma to the genital-urinary system. For these reasons, we are assigning a 0% WPI rating for urinary dysfunction.
Sexual dysfunction
101Dr. Basile has determined the applicant suffered from a 5% WPI for sexual disfunction. We are not persuaded to accept this finding.
102Table 19 in Chapter 4 of the Guides provides WPI ratings for sexual dysfunction that results from spinal cord or other neurological disorders.
103The report of OT Hisey noted that that the applicant had a girlfriend, prior to the accident, and that he reported they had broken up because “he had too much pain and stress”. The applicant similarly reported that “he broke up the relationship” during an examination by Dr. Ballard, physiatrist, on February 20, 2020.
104Again, there is no evidence before us of any injury to the genital-urinary system. We also have no evidence before us of the level of sexual activity by the applicant, prior to the accident.
105Aside from his conclusion, Dr. Basile provides no commentary or rationale as to how he arrived at his rating. Moreover, he provides no nexus between the accident and the claimed impairment.
106For these reasons, we have determined that 0% WPI would be the appropriate rating for sexual dysfunction.
107Given our findings for the impairments noted above, there is no need for further analysis of the remaining impairments claimed by the applicant. Even if we agree with the 5% WPI for gait and 2% WPI for Sleep and Arousal Disorders, the result would be a total of 10% WPI. Accordingly, we find that the applicant has not met the 55% WPI minimum standard for Criterion 6.
CAT – Criterion 7
108We find that the applicant is not catastrophically impaired under Criterion 7.
ANALYSIS AND REASONS
109A 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 methodology in Chapter 14, Section 14.6 of the American Medical Association’s (“AMA”) 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 and results in a 55% or more whole person impairment (WPI).
110Having already analyzed the physical impairments for our determination of Criterion 6, it simply remains to analyze the psychological impairments which, when combined with the physical impairments, forms the basis for determining Criterion 7.
111The applicant relies on the evidence of Dr. Quinn, who completed the psychiatric assessment. It should be noted that there was considerable discussion between the parties at the hearing about Dr. Quinn’s credentials and her qualification as an expert witness. In the course of exchanging information, prior to the hearing, Dr. Quinn had transmitted a CV which included all the relevant information on the training she has undertaken. On the third day of the hearing, the applicant submitted a second CV for Dr. Quinn which he characterized as “correcting two typos”. The respondent, on comparing the two CVs, determined that all details relating to “training” had been removed and questioned whether Dr. Quinn was qualified as an assessor.
112In her testimony, Dr. Quinn indicated that the second CV was prepared on the basis of a suggestion that she “streamline” the document. In sworn testimony, Dr. Quinn noted that she never stated that she was “certified” as CMLE or C-CAT. Instead, she made it clear she has been listed as an assessor by CAPDA, the professional body that oversees the field of assessment qualification. She acknowledged that she should not have sent the second CV as written, and she made it clear the changes weren’t made with the intention of misleading the Tribunal or any other reader. She acknowledged her first CV was more accurate.
113Dr. Quinn has previously been qualified before the Tribunal and section 45(2)1 of the Schedule requires that “a determination of a catastrophic impairment shall be conducted only by a physician” and there was no evidence before us that Dr. Quinn is not a fully accredited physician and psychiatrist. We are satisfied that the error by Dr. Quinn was inadvertent, and not an attempt to deceive the Tribunal. This allegation has no bearing on the weight to be given to her evidence and she is qualified as an expert witness in the fields of psychiatry and catastrophic assessment determination.
114In performing her assessment according to the Guides, Edition 6, Dr. Quinn administered three tools to develop an impairment rating, namely the Brief Psychiatric Rating Scale (“BPRS”), the Global Assessment of Functioning Scale (“GAFS”) and the Psychiatric Impairment Scale (“PIRS”). As a result of her assessment, Dr. Quinn assigned a rating of 40% WPI to the applicant.
115The respondent would have us rely on the reports of Dr. Chandrasena. He performed his assessment of the applicant on May 10, 2021. We find that his analysis of all the s. 25 and s. 44 psychiatric, psychological and occupational therapy testing was particularly detailed and helpful. He also assessed the applicant using the same three rating tools used by Dr. Quinn, and arrived at a global rating of 20% WPI.
116No further analysis of the ratings of Dr. Quinn are necessary, however, since, even if we were to agree with her 40% WPI rating for psychological impairments, when combined with the ratings for physical impairments, the aggregate rating score is 46% WPI.
117Accordingly, the applicant does not meet the minimum 55% WPI required to qualify as being catastrophic impaired under Criterion 7.
CAT – Criterion 8
118We find that the applicant is not catastrophically impaired under Criterion 8.
ANALYSIS AND REASONS
119To qualify under Criterion 8, the applicant must prove that he suffers from an impairment due to a mental or behavioural disorder that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (“Guides”), results in a Class 4 impairment (marked impairment) in three or more areas of function that significantly impedes useful functioning or a Class 5 (extreme impairment) in one or more areas of function that precludes useful functioning. Physical impairments are not factored into the impairment level for a Criterion 8 catastrophic impairment.
120It is important to note that an assessment under Criterion 8 involves a different framework and different descriptions of impairment levels than what is found in Criterion 7. The 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 |
|---|---|---|---|---|---|
| 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 | |
| Activities of Daily Living | |||||
| Social Functioning | |||||
| Concentration, Persistence and Pace | |||||
| Adaptation |
121In determining whether an insured person is catastrophically impaired for mental or behavioural disorders, the Tribunal considers whether the accident caused a mental or behavioural disorder, the impact of the disorder on the person’s life, and the level of impairment.
122The applicant submits that the evidence of the applicant, his mother, Zahra Mansuri, Dr. Quinn and OT Madan supports his claim that he has sustained at least three marked impairments in the four spheres of functioning in Criterion 8 (including one extreme impairment in adaptation). The respondent submits that the applicant suffered at most one class 4 impairment. Those ratings are shown below in Chart 2.
Chart 2. Criterion 8 Ratings by Drs Quinn (Q) and Chandrasena (C)
| 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 |
|---|---|---|---|---|---|
| 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 | ||
| Activities of Daily Living | C | Q | |||
| Social Functioning | C | Q | |||
| Concentration, Persistence and Pace | C | Q* | |||
| Adaptation | C | Q |
- Dr. Quinn changed her rating from “extreme” to “marked” in her addendum / rebuttal report for the sphere of concentration, persistence and pace.
123The report by OT Madan, and the testimony of the applicant, his mother and family members noted that the applicant is unable to bathe, dress or feed himself without assistance. OT Madan also noted the applicant was unable to perform normal household chores and he spends much of each day simply lying in bed. Dr. Quinn concluded that the applicant had significant impairment in activities of daily living, was withdrawn from most social contact and lacked motivation.
124Dr. Quinn diagnosed the applicant with severe Major Depressive Disorder, PTSD and Somatic Symptom Disorder. She indicated her testing had been in three parts. She assigned a score of 25 to the GAF test, which she testified indicates “serious impairment in communication, judgment and functioning”.
125Significantly, the applicant suggests the respondent’s surveillance corroborates the challenges the applicant faced in independently performing activities of daily living and that, in all tasks observed, he was forced to rely on family members for assistance.
Social Functioning
126The AMA Guides state: “Social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbors, grocery clerks, landlords, or bus drivers.”
127Dr. Quinn concludes that the applicant had become almost completely socially isolated, remaining removed from family, community and friends. She found that the emotional reactivity and irritability of the applicant was a significant barrier to his return to normal social functioning.
128In the testimony of the applicant’s mother and brothers, there were similar claims that his personality had changed post-accident. We are asked to put considerable weight on the evidence of the family members that the applicant avoided contact with family members, and others. Applicant’s counsel goes so far as to state that the evidence, in connection with this sphere of activity, is that the applicant demonstrates “a pattern of severe and entrenched isolation” “avoiding even his immediate family” and “[H]e no longer communicates with his siblings”.
129The testimony of the family members, and the self-reporting of the applicant to OT Madan and other assessors, was that “he picks fights with his brothers”. Dr. Quinn observed that the applicant was “emotionally reactive” and “irritable”.
130We have been offered considerable surveillance evidence which shows the applicant involved in a variety of activities outside his home in the years after his accident. While we recognize that there is no audio component to the surveillance so we cannot determine what was said, we can consider the body language of the applicant and those with whom he interacts.
131The surveillance clearly shows the applicant driving other family members, on multiple occasions, to a grocery store, a bank, a library and, repeatedly, to a local park. In every instance, there is clear evidence that the applicant makes his way to and from the car, without the aid of any family member. There was no sign that his service as the driver was under protest; in at least one instance, he is seen smiling as he gets into the car.
132At the bank, he engages with the teller and, while one of his brothers also speaks to the teller, at one point, we were offered no evidence that the brother provided any assistance. Similarly, at the library, the applicant is seen reading a book and, from time to time, communicating in what appears to be a quiet fashion with his brothers.
133Most significant are the visits to the park, which we heard from the applicant were quite frequent. Driving to a park, engaging in what appears to be a very civil and non-confrontation fashion with his family members is inconsistent with the testimony that the applicant was “highly avoidant” with his family or that he no longer communicates with his family.
134The applicant’s counsel suggested which should give little weight to the surveillance evidence, given the lack of an audio component, but he did not contest the authenticity of the surveillance video. We find we have the discretion to assign the weight we determine to be appropriate for this evidence.
135We find the surveillance evidence is sufficient proof to rebut the claims of the applicant that he suffers a marked impairment in social functioning.
Concentration, Persistence and Pace (“CPP”)
136The AMA Guides state: Concentration, persistence, and pace (“CPP”) … refer to the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings. In activities of daily living, concentration may be reflected in terms of ability to complete everyday household tasks.
137The Guides define a Class 5 (extreme) impairment in the context of CPP as “Totally impaired. Needs constant supervision and assistance in an institutional setting”. The Guides add further definition: “An extreme limitation in concentration, persistence and pace means that the individual cannot attend to conversation or any productive task at all.” We find this clearly does not apply to the applicant. He is living independently with only intermittent assistance with specific tasks. He is able to engage in conversations with his family and personnel in various stores. He was able to participate, meaningfully, in his examination in chief and cross-examination in this hearing.
138Dr. Quinn’s rating is supported by no evidence that would suggest a Class 5 impairment was appropriate.
139In her rebuttal report of November 28, 2021, Dr. Quinn reduced her original rating for this function, noting: “With regards to Concentration, Persistence and Pace, where I provided a finding of Class 5, I would agree that the finding, as outlined in the IE OT report, is more consistent with a Class 4”.
140Furthermore, Dr. Quinn was asked, had she reviewed the surveillance evidence available at the time of her assessment, would she have given the applicant two “5’s” (i.e. for CPP and Adaptation) to which she responded “I would likely move him to a class 4 on both components” (emphasis ours).
141In the context of CPP, the Guides define Class 4 as “Severe impairment. Can read only a few lines before losing concentration. Concentration deficits obvious even during brief conversation. Unable to live alone or needs regular assistance from relatives or community services”.
142We note that there appear to be significant variations between the assessments obtained by the s.25 and s.44 assessors, but there are key elements, from both, which give rise to concern about the quality of the results of those assessments. In the initial assessment by OT Madan, the applicant demonstrated a reluctance to submit to functional ability testing, citing pain or fatigue. During that June 4, 2020 assessment by OT Madan, the applicant declined to participate in five of the eleven areas of functional testing and a sixth, sleep, was not observed.
143In the insurer’s in-home occupational therapy assessment by OT Ranu Heeraman Singh (“OT Singh”), on March 5, 2020, the applicant “demonstrated adequate attention, orientation and memory skills during the interview”. OT Singh noted the applicant “identified a wide array of complaints of both physical and psychiatric in nature, some of which made little sense in the context of the accident and the soft tissue nature of the injuries he incurred as documented in the Disability Certificate (OCF-3).
144Other assessors noted the applicant’s unwillingness to submit to functional testing, including OT Daniel Leece, on March 10, 2021, who noted the applicant “continues to isolate due to fear of leaving his house”. It is noteworthy that the assessors then offer conclusions based largely on the self-reporting of the applicant and not on objective measurements.
145After the assessment by Dr. Tonya Ballard on November 29, 2018, she concluded, “At this juncture, I am unable to provide a diagnosis as the examination was incomplete. Mr. Mansuri declined to perform a number of testing procedures for the lumbar spine, right shoulder, hips, and left knee due to expectation of pain. Cranial nerve screening was declined due to reported dizziness.”
146During the insurer’s in-home assessment, OT Singh observed that the applicant was “capable of handling his phone which he turned off after obtaining a few calls”. Leaving aside the fact that the applicant would receive so many calls that he would feel compelled to turn off his phone in order to prevent further interruptions, his constant use of his cell phone, as an aide memoire and scheduling tool, and his monitoring of the phone for calls, would seem at odds with the determination of a marked impairment for CPP.
147As a result of the incomplete testing, we are forced place the greatest weight on the testimony during the hearing, as well as the surveillance video evidence.
148The applicant admitted to being the driver of a red Toyota, shown in a series of videos taken on September 17, October 10, and October 18, 2019, May 26, May 27 and May 28, 2023 and March 24 and March 26, 2024. In each case, the applicant is seen entering and/or exiting the vehicle after travelling to a variety of stores, a library, a hospital, a chiropractic office, the Laurel Creek Conservation Area and his apartment. At no time is he seen receiving any assistance walking to, entering or exiting the vehicle, nor walking to and from the destination locales.
149In the course of those trips, the applicant is seen assisting his mother at a grocery store, dropping off his brother at a hospital, taking several brothers to the library and taking his brothers and mother to the Conservation Area. On some days, the itinerary taken by the applicant included three stops, spanning several hours.
150When asked by the respondent’s counsel, whether driving required skills including alert, quick reflexes, make quick judgments, be able to react to situations, be able to think clearly, operate a vehicle safely, and whether the applicant needed to be able to adapt, Dr. Quinn answered “yes”. When asked if she agreed that there is visual, cognitive and motor skill coordination required to driving, again, Dr. Quinn answered “yes”.
151We agree that driving to and from the destinations attended by the applicant required planning, concentration and adaptation, as well as a knowledge of the local road system, the rules of the road and the motor skills required to operate a vehicle.
152As a result, we find that the applicant does not suffer from a marked or extreme impairment in the component of concentration, persistence and pace.
Conclusion
153The applicant has not met his onus of establishing that he has three marked impairments or one extreme impairment. Consequently, we find that he is not catastrophically impaired under Criterion 8.
DENIED PRESCRIPTION EXPENSES
RESULT
154The insurer is not obligated to pay for the prescription expenses which are at issue in this case.
ANALYSIS AND REASONS
155The applicant seeks payment of prescription expenses submitted on a series of OCF-6 forms between October 2022 and June 2024, which were denied on the basis that the non-catastrophic medical and rehabilitation benefits limit of $65,000 had been exhausted.
156The applicant submits that the claims were submitted in accordance with the Schedule and were reasonably incurred as a result of the accident. The applicant is seeking entitlement to all the OCF-6s, which, after the withdrawal during the hearing of certain prescription expenses, now total $5,009.79.
157Section 20(1)(a) of the Schedule limits the obligation of the insurer for medical, rehabilitation and attendant care benefits to 260 weeks (i.e. 5 years) after the accident occurs. In this case, the accident occurred on May 4, 2018, so, as of the date of this hearing, the time limitation was already passed.
158The only exception to this limitation period is found in s. 20 (1)(b) which continues the obligations of the insurer “in respect of an injured person who sustains a catastrophic impairment as a result of the accident”.
159Separately and further, as we have determined the applicant did not suffer a catastrophic impairment as a result of the accident, the non-MIG, non-CAT limit of $65,000 continues to reflect the limit of the respondent’s funding obligation. As that limit has been reached, the respondent is not obligated to pay for the prescription expenses which are at issue in this case.
SPECIAL AWARD
160The applicant is not entitled to an award under s.10 of O. Reg 664.
ANALYSIS AND REASONS
161On January 3, 2025, the Applicant filed particulars of a s.10 Award Claim for this matter, and this was listed as an issue in dispute in the Case Conference Report and Order of Vice-Chair Painchaud, dated October 28, 2024.
162Under s.10 of Regulation 664, a lump sum may be awarded to the insured if the Tribunal finds that the insurer unreasonably withheld or delayed the payment of benefits. When such a finding is made, the Tribunal may order up to 50% of the withheld or delayed payment along with interest at a rate of 2% per month, compounded monthly.
163The applicant submits that the respondent continues to uphold the denial of a series of OCF-6 claims for medication, totalling $5,009.79. It is relying on the medical reports of Dr. Friedlander, Dr. Basile and Dr. Quinn to justify the OCF-6 claims.
164The respondent denied there was a delay in the payment of any legitimate claims and is relying on the evidence in the medical reports of Dr. Dessouki, Dr. Platnick and Dr. Chandrasena to justify the denials.
165On April 17, 2025, the applicant’s colleague, writing on behalf of the applicant, advised that “we are not proceeding with the claim for a special award at this hearing”. This position was reiterated, by the applicant, orally at the hearing on April 22, 2025.
166On day six of the hearing, April 29, 2025, applicant’s counsel submitted an email noting his intention to reinstate the issue of a special award as an issue in dispute. No particulars of the award claim were included.
167The respondent opposed the reinstatement, citing a lack of procedural fairness as they were not provided an opportunity to prepare arguments in the time remaining in the hearing. We indicated to the parties that they would take submissions during closing statements on this matter.
168In his final submissions, the applicant noted “the basis for re-instating the issue of award arose from the conduct of the Respondent at the hearing itself”. He cited K.B. v Aviva Insurance Canada, 2018 CanLII 115644 (ON LAT), Qazi v Aviva Insurance Company of Canada, 2021 CanLII 146973 (ON LAT), and 17-006302 v Aviva General Insurance, 2018 CanLII 61159 (ON LAT) as precedents that provide for the addition or reinstatement of a special award claim after a case conference and during a hearing.
169The respondent, in its final submissions, noted that Tenuta v BelairDirect Insurance Company, 2024 CanLII 132343 (ON LAT) (paras 8-10) and Wilson v Intact Insurance Company, 2024 CanLII 108235 (ON LAT) (para 6) decided that once an issue is withdrawn at a hearing “the Tribunal no longer has any jurisdiction to consider the matter”.
170In the matter before us, we see no inherent conflict between the arguments of the parties. It is our decision that the original s.10 award claim, and its particulars, was withdrawn by the applicant, orally and in writing. That matter was “ended”. The applicant was entitled to bring a new award claim, based on different rationale, so we agree with the addition of this new s.10 award claim as an issue in dispute.
171As to the merits of the added s.10 award claim, we can only consider the arguments which fall outside the particulars of the ended claim. Accordingly, we find that the applicant’s arguments that an award is justified on the basis of the respondent’s conduct, at the hearing, do not satisfy the need to demonstrate an unreasonable withholding or delay of payments to the applicant. For that reason, we have denied the claim for a s.10 award.
Interest
172Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, the applicant is not entitled to interest.
ORDER
173The Tribunal orders:
i. The applicant is not catastrophically impaired.
ii. The applicant is not entitled to payment for the medical expenses listed in the appeal and proposed under an OCF-6.
iii. The applicant is not entitled to an award under s.10 of O. Reg 664.
iv. The applicant is not entitled to interest as there are no payments overdue for the benefits claimed.
Released: November 24, 2025
Harry Adamidis
Adjudicator
Steve Gilchrist
Adjudicator