Citation: Giraldo v. Belair Insurance Company Inc., 2025 ONLAT 24-000956/AABS
Licence Appeal Tribunal File Number: 24-000956/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:
Claudia Giraldo
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
John Mazzilli
APPEARANCES:
For the Applicant:
Kristy Kerwin, Counsel
Chad Melbourne, Counsel
For the Respondent:
Eluxmeenah Rishihesan, Counsel
David Koots, Counsel
Court Reporters:
Jo Velimirovice, Vicky Kosmas & Prashanth Thambillai
Interpreter:
Sandra Flores - Spanish language
Heard by Videoconference:
August 25, 26, 27, 28, 29, September 2 & 3, 2025
OVERVIEW
1Claudia Giraldo, (the “applicant”), was involved in an automobile accident on August 26, 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 Belair Insurance Company Inc. (the “respondent”) 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. Has the applicant sustained a catastrophic impairment under Criterion 8 as defined by the Schedule
3Withdrawn Issues: At the outset of the hearing the applicant withdrew all the remaining issues in dispute as listed in the Case Conference Report and Order dated July 5, 2024.
RESULT
4The applicant is catastrophically impaired in accordance with Criterion 8 of the Schedule as a result of the accident.
PROCEDURAL ISSUES
Admittance of Dr. Kenney’s Letter
5The applicant submits that she received a letter from Dr. Kennedy her long-time family physician on August 21, 2025, and seeks permission from the Tribunal to add the letter as evidence at the hearing. The applicant submits that this letter does not prejudice the respondent as it re-iterates Dr. Kennedy’s Clinical Notes and Records (CNRs) which are contained in the document brief and that the letter specifically addresses causation and the applicant’s disability tax credit form completed by Dr. Seyone, the applicant’s treating neuropsychologist.
6The applicant submits that she canvassed the respondent to seek an adjournment of this matter on consent of the parties if the respondent was not ready to proceed because of the letter. The applicant submits that the respondent was not agreeable to seek an adjournment of this matter therefore I should admit the letter and add full weight to Dr. Kennedy’s letter.
7The respondent objects to the inclusion of the letter because it was only provided to them at 3:00pm on August 28, 2025, and because this letter was not disclosed in accordance with the Case Conference Report and Order dated July 5, 2024 nor was it included in the applicant’s document brief which was received in accordance with the Case Conference Report and Order 21 days prior to the scheduled hearing. The respondent further submits that it would be prejudiced by the admission of Dr. Kennedy’s letter because it had not received any CNRs from Dr. Kennedy beyond June 12, 2023, and that I should add no weight to the letter to mitigate prejudice should I allow the letter to be admissible.
8I admitted the letter as I found it probative and relevant to the issues in dispute. I will speak to the weight I assign to Dr. Kennedy’s letter in my decision.
Applicant seeks to exclude the evidence of Dr. Sivasubramanian
9I find that the respondent can rely on the reports of Dr. Sivasubramanian.
10On the fifth day of the hearing and one day after the testimony of Dr. Sivasubramanian, psychiatrist, the applicant advised that it sought to challenge the admissibility of Dr. Sivasubramanian’s catastrophic impairment reports (“CAT”). The applicant advised me that she had notified the Tribunal of her intent to challenge Dr. Sivasubramanian as an expert witness and that her submissions were outlined in her document brief.
11The applicant submits that Dr. Sivasubramanian, the author of the respondent’s CAT reports, did not complete an expert duty acknowledgement form. The applicant submits that Dr. Sivasubramanian used unsubstantiated and undefined methodology to separate the applicant’s pre-and post accident impairments, which fail to meet the novel science consideration in the two-part test in R.v.Mohan, 1994 CanLII 80 (SCC) and the second part of the test in the consideration of his separation of the physical and psychological pre- and post accident symptoms. The applicant submits that admitting his report would amount to opening the door of hired gun experts and junk science which raises concerns of natural justice and procedural fairness.
12The applicant further submits that Dr. Sivasubramanian separated the applicant’s physical and mental behavioral impairments when arriving at his assigned ratings in the 4 domains of function without any explanation on the weighting of the applicant’s impairments, specifically by separating the applicant’s physical impairments versus her somatic symptoms. She submits that Dr. Sivasubramanian is not an impartial expert witness as he testified that 90% to 95% of his practice is comprised of Insurance assessments.
13The respondent argues that it would be prejudiced by the exclusion of Dr. Sivasubaramanian’s report given the timing of the applicant’s motion. It argues that the applicant was afforded the opportunity to cross-examine Dr. Sivasubaramanian and that the applicant did not challenge him as an expert witness when afforded this opportunity.
14The respondent acknowledges that an expert duty form was not submitted in its document brief, however it attributes this oversight to Counsels clerk having gone on maternity leave at the time the document briefs were submitted. The respondent argues that the applicant did not file a notice of motion with the Tribunal with her intention to challenge Dr. Sivasubaramanian as an expert witness.
15I accepted Dr. Sivasubramanian as an expert witness and admitted his reports as evidence as not doing so would be prejudicial to the respondent given the applicant requested the motion well after her cross-examination of Dr. Sivasubramanian, which did not include any challenges of Dr. Sivasubramanian qualifications as an expert witness.
16At the outset of the hearing, I canvassed the parties for any notices of motions that they requested be heard. The only motion brought to my attention was by the applicant in relation to Dr Kennedy’s letter, for which a notice of motion form had been completed by the applicant with her submissions.
17This was not the case when challenging Dr. Sivasubramanian as an expert witness. The applicant did not complete a notice of motion form prior to the hearing, nor did she request that I exclude Dr. Sivasubramanian as an expert witness because an acknowledgment of expert duty was not produced by the respondent, nor did she deliver written notice in accordance with the Licence Appeal Tribunal Rule 10 of her intent to challenge Dr. Sivasubramanian as an expert witness.
18The respondent provided the applicant and the tribunal with a copy of Dr. Sivasubramanian’s expert duty acknowledgement form during the hearing which was completed in accordance with Rule 10.2. I will speak to the weight I assigned Dr. Sivasubramanian’s report in my decision below.
19I find that the respondent can rely on the reports and evidence of Dr. Sivasubramanian.
ANALYSIS
Causation
20The determinative issue is whether “but for” the 2018 accident, the applicant would have sustained the psychological impairments underlying her catastrophic impairment claim. I find that on a balance of probabilities it does.
21The applicant was previously involved in a slip and fall accident on a public transportation system in 2011 where she sustained a traumatic brain injury (“TBI”), depression, chronic pain and had struggled with the effects of this injury.
22At the time of the subject motor vehicle accident, she submits that she was a fully functioning independent individual that returned to her pre slip and fall employment some four years prior to the subject accident and that she had an active social life, she enjoyed dancing, yoga, attended church on Sundays, volunteered and had a thriving romantic life. The applicant submits that she is a vulnerable individual to mental and behavioral impairments because of her slip and fall accident and that there is no meaningful way to separate her physical pain from her psychiatric impairments.
23The respondent argues that as a result of the motor vehicle accident the applicant has sustained both physical and mental behavioral injuries that do not amount to catastrophic impairment under Criterion 8. The respondent argues that the applicant’s injuries from the slip and fall persisted prior to the subject accident. The respondent acknowledges that the applicant has sustained injuries from the motor vehicle accident however when considering her pre and post accident level of function and when apportionment for her physical injuries is considered, her impairment levels do not amount to marked impairments under Criterion 8.
24The respondent further argues that the applicant had been having difficulties at work prior to the subject accident and that her evidence is unreliable and that I ought to place greater weight to the contemporaneous CNRs from medical professionals rather than the applicant and her son’s testimony which it argues contradicts the medical evidence.
25It is well established that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121(Sabadash). To satisfy this test, the applicant must demonstrate on a balance of probabilities that “but for” the 2018 accident, she would not have suffered the impairments forming the basis for her catastrophic-impairment (“CAT”) claim. The Court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, the Court states that the accident need not be the only cause of the impairment, but it must be a necessary cause. The Court further instructs the decision maker to conduct a robust analysis given the unique circumstances of the case at hand.
26The applicant testified that prior to the accident she was independent with her daily grooming, she took pride in her appearance often giving herself manicures and pedicures, she took pride in her cleanliness of her home, she enjoyed dancing, biking, fishing, hot yoga, and cooking complicated dishes for her and her extended family. She testified that that she volunteered as a way of giving back, she would travel and even had a second job on weekends staging homes in cottage country for a friend who is a real estate agent.
27After the accident the applicant testified that she has been unable to return to her pre-accident employment, she is unable to maintain her condo and relies on her son for cooking meals and cleaning the condo. She testified that she is unable to do heavier chores such as laundry and floor washing or scrubbing of her tub. She is no longer able to participate in salsa dancing, yoga, fishing and biking. She is unable to volunteer and rarely goes to church or social functions because of lack of motivation. She testified that she now prefers to stay home because she becomes irritable, she has mood swings, she has difficulty obtaining restorative sleep, she is forgetful, she is restless due to pain, she suffers from depression and extreme anxiety and is susceptible to frequent panic attacks.
28In considering the applicant’s testimony in light of the medical reporting in evidence, I find that her pre accident presentation is not consistent with her post accident presentation, therefore I find that the accident was a necessary cause to the applicant’s post accident impairments.
29This is because the evidence before me shows that the applicant was engaged and independent in her daily functioning, whether it be at work, home or in the community prior to the subject accident and several years following the slip and fall.
30The CNRs of Dr. Kennedy and Dr. Seyone corroborate this finding and I placed full weight on their records because Dr. Kennedy and Dr. Seyone both treated the applicant pre-and post accident; therefore, their opinions are based on the applicant’s presentation both pre and post accident and their evidence shows that the subject accident was a necessary cause for the applicant’s impairments.
31While the respondent argues that the applicant has struggled with mental health since her slip and fall and that her psychological impairments are from the slip and fall, the CNR of Dr. Seyone, the applicant’s treating neuropsychologist, dated August 17, 2018, nine days before the accident, show that the applicant was indeed functioning well before the accident. Dr. Seyone’s CNRs show that the applicant has remarkably improved since she commenced on Trintellix in that she is a lot calmer, not as irritable and her ability to manage anxiety is improved. Dr. Seyone testified that the accident was a probable cause of her current issues because she was able to function at work and in the community and that since the accident the applicant has become less functional as time went by.
32In addition, in her letter dated August 21, 2025, Dr. Kennedy opined that the dramatic change in the applicant’s function came because of the subject accident as the applicant’s headaches worsened, her sleep deteriorated, her mood was more depressed, and her anxiety increased. According to Dr. Kennedy, this change in function has affected the applicant’s independence, ability to work, prepare her own meals and led to the gradual ending of personal relationships. The corroborating medical evidence from Dr. Kennedy and Dr. Seyone support a finding that the 2018 accident was a necessary cause of the applicant’s impairments.
33I find on a balance of probabilities that the subject accident is a necessary cause of the applicant’s impairments.
Criterion 8 Mental and Behavioural
34I find on a balance of probabilities that the applicant is catastrophically impaired under Criterion 8 as a result of the accident.
35To determine whether an insured person is catastrophically impaired under Criterion 8, the Tribunal considers whether the accident caused a mental or behavioural disorder, the impact of the disorder to the person’s life, and the level of impairment, as described in section 3.1(1)8 of the Schedule. The applicant bears the onus to prove on a balance of probabilities that she is catastrophically impaired. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test, not a medical test: see Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571.
36Criterion 8 requires evidence of the insured person’s impairment levels due to a mental or behavioural disorder. Impairment levels are to be assessed in relation to four functional domains: (1) Activities of Daily Living (“ADL”); (2) Social Functioning (‘SF”); (3) Concentration, Persistence and Pace (“CPP”); and (4) Adaptation (deterioration or decomposition in work or work like settings) (“AD”). To meet the Schedule’s threshold for a catastrophic impairment designation under Criterion 8, an individual must have three marked (class 4) impairments out of the four spheres of functioning or one extreme (class 5) impairment as a result of the accident due to a mental and behavioural disorder. These impairments are assessed under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (“Guides”). Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The spheres of functioning and the levels of impairment are outlined in the chart below:
Area or Aspect of Functioning
Class 1:
No Impairment
Class 2:
Mild Impairment
Class 3:
Moderate Impairment
Class 4:
Marked Impairment
Class 5:
Extreme Impairment
Activities of Daily Living
No impairment is noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some, but not all useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning
Social Functioning
Concentration, Persistence and Pace
Adaptation (Deterioration in a work-like setting)
37The applicant submits that she has four class 4 marked impairments in the domains of ADL, SF, CPP and AD, caused by mental disorders that she sustained in the motor vehicle accident.
38The applicant relies on the report of psychiatrist Dr. Gerber dated October 30, 2023, who diagnosed the applicant with persistent somatic symptom disorder with predominant pain, post traumatic stress disorder moderate to severe, major depressive disorder and ongoing symptoms consistent with a post concussion syndrome due to multiple etiologies.
39The applicant also relies on the report of Dr. Seyone, neuropsychiatrist, dated August 14, 2024, the CNRS of Dr. Kennedy, family physician, the situational assessment report of Lisa Clarke, occupational therapist, dated June 30, 2023, and the in-home and situational assessment report of Kyla Man, occupational therapist, dated February 19, 2021.
40The respondent argues that the applicant has not sustained any marked impairments when the apportionment of her physical impairments, and her pre-accident mental and behavioral impairments are considered.
41The respondent argues that as a result of the accident the applicant has a class 3 moderate impairment in her ADL, CPP, AD and a class 2 mild impairment in her SF. The respondent relies on the psychiatric report of Dr. Sivasubramanian dated May 20, 2022, and his addendum reports dated January 30, 2023, January 31, 2024, and June 25, 2024. The respondent also relies on the in-home occupational therapy report by Elyse Freedman dated May 20, 2022.
Apportionment and weight of evidence
42When deriving his rating in the 4 domains, Dr. Sivasubramanian apportioned the applicant’s pre and post level of function. Dr. Sivasubramanian also separated the applicant’s physical pain from psychological pain in deriving his ratings. He testified that the AMA Guides in both the 4th edition and the 6th edition discuss apportionment of pre-existing conditions in relation to the subject accident.
43The applicant argues that there is no meaningful way to separate pain when it impacts an individuals physical and psychological impairments as Dr. Sivasubramanian’s has. Dr. Gerber testified that there is no mechanism to subdivide which impairments are as a result of the accident and which are not, and that it is hard to follow how Dr. Sivasubramanian carved out his ratings based on apportionment as his report is inconsistent with the occupational therapist assessments.
44While I do agree with Dr. Sivasubramanian’s interpretation that chapter 2 page 10 of the Guides does speak to apportionment of injuries attributed to the accident, in this case I find that his apportionment was not properly considered for the following reasons.
45It is well documented that the applicant suffered from chronic pain following her slip and fall accident, and both Dr. Sivasubramanian and Dr. Gerber diagnosed the applicant with somatic symptom disorder post accident. However, Dr. Sivasubramanian separated the applicant’s physical pain from her somatic pain when assigning his ratings in the 4 domains with no explanation on how either in his report or his testimony. While I accept that this was a pre-existing condition, I also accept the contemporaneous medical evidence from Dr. Kennedy and Dr. Seyone that her chronic pain was in remission or manageable prior to the accident as the applicant was able to function at work, home and in the community, which is not the case post accident in part due to her somatic symptom disorder.
46Dr. Sivasubramanian also opined that the applicant’s difficulty with sleep is in part is due to the physical condition of sleep apnea and he apportioned for this in his ratings in the 4 domains. While there is some evidence that the applicant possibly suffered from mild sleep apnea, the CNR from respirologist Dr. Leung, dated June 30, 2020, does not support sleep apnea as a barrier to the applicant’s difficult in restorative sleep. Dr. Leung opined that: “I do not think that it is likely that the sleep apnea is contributing significantly to her sleeping problems. The main problem that she identifies is difficulty initiating sleep, and sleep apnea does not cause this symptom”.
47Dr. Sivasubramanian’s report did not contain the CNR from Dr. Leung. Accordingly, I am unable to determine whether or by what amount Dr. Sivasubramanian discounted sleep apnea as a physical or mental behavioral impairment when assigning his ratings in the 4 domains.
48For these reasons I placed less weight on the report of Dr. Sivasubramanian when assessing the 4 domains of function.
Social function
49I find on a balance of probabilities that the applicant has sustained a marked impairment in her social function as a result of the accident.
50The Guides specify that 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, neighbours, grocery clerks, landlords, or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Strengths in social functioning may be documented by an individual’s ability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities. Cooperative behaviour, consideration for others, awareness of others’ sensitivities, and social maturity also need to be considered.
51The applicant’s position is that she has a class 4 marked impairment whereas the respondent submits that the applicant has a class 2 or mild impairment in the domain of SF.
52To support her position the applicant testified that her social life has deteriorated since the accident and that her relationship with her son, siblings and close friends has deteriorated. She testified that she does not have much to offer to conversations and snaps at her son and family members.
53The applicant testified that pre-accident, she enjoyed Salsa dancing a few times a month, she went fishing with her son weekly, used to ride her bike three to four times a week, attended hot yoga classes weekly, was learning how to play golf, participated at church on Sundays and volunteered as a means of giving back to her community. She also enjoyed reading and writing, often entertained and cooked complicated dishes for her large family on special occasions, went out for lunch and dinners with work colleagues and enjoyed a great relationship with her siblings, nieces, nephews, and long-term friends.
54She testified that she is no longer able to go dancing because of the noise, crowd and the late nights dancing entails as she would be in pain and spend days in bed afterwards. She tried to ride her bike post accident however she could not do it and called a friend to pick her up. She testified that she no longer goes fishing or biking because of low motivation, concentration, pain, dizziness and fear of falling that would cause further injury to herself. She testified that she no longer volunteers and attends Sunday mass for fear of crowds and does not want her fellow Church acquaintances to see her in her current state.
55In his report Dr. Gerber opines that the applicant has sustained a class 4 marked impairment in the domain of SF. He opines that the applicant becomes easily irritable, she has difficulty following conversations and is no longer in a romantic relationship post-accident. He highlights the difficult relationship the applicant has with her son and the falling out with her siblings except for her youngest sister. He further opines that the applicant does not feel good about her functioning, and this affects her important relationships because she is overwhelmed, irritable, self conscious and she is unable to participate in conversations the way she could pre-accident and therefore has become avoidant.
56The respondent argues that the applicant’s impairments cannot be fully attributable to her mental and behavioral presentation but rather her impairments are due to a combination of her physical and mental behavioural impairments, therefore not satisfying her onus under Criterion 8. The respondent argues that the applicant continues to go to church, goes to the grocery store, has a relationship with her son, father, high school friends and former work colleagues.
57In his report Dr. Sivasubramanian opines that the applicant’s irritability is such that she has been in conflict with her son and that the schism in her family relationships is as a result of the accident claim. He opines that the applicant has been sexually active following the accident and that she maintains regular contact with her younger sister and father, as well as a number of former friends.
58I placed more weight to the evidence of Dr. Gerber for the reasons already outlined above, namely because Dr. Sivasubramanian apportioned the applicant’s physical v. mental/behavioral impairments in his ratings with no explanation of how he separated the applicant’s physical and mental behavioral impairments when assigning his ratings in the 4 domains of function.
59In addition, I find that Dr. Gerber’s evidence aligns with the contemporaneous evidence and the applicant’s testimony. The respondent argued that the applicant’s deterioration in her family relationships is due to the schism created by litigation brought on by the applicant, as the applicant was a passenger in her sister’s vehicle at the time of the accident. However, I find that but for the accident this schism between the family would have not arisen as a factor in the deterioration of her valued family relationships that are contributing factors that significantly impede her SF. The applicant has a history of altercations post-accident with her son, sisters, friends, and former colleagues. This is further corroborated by the testimony of her son and her friend Maria Casanova that she does not speak to her siblings who cannot comprehend the applicant’s post accident presentation of easily snapping and easily irritated, which in turn results in avoidant behavior by the applicant.
60It is apparent that the applicant’s social function is impeded as a result of the accident. The applicant took pride in her work, appearance, volunteer activities, biking, fishing and her thriving relationships with her family, co-workers and long-time friends’ pre-accident. Her inability to get along with her family members, fear of large crowds, avoidance of interpersonal relationships and her inability to engage in her work, volunteer activities, salsa dancing, biking, and hot yoga post accident has severely impeded her social function.
61This is further supported by Ms. Freedman’s occupation assessment report as Ms. Freedman opines that based on the applicant’s subjective remarks, the medical documentation and observations during testing, the applicant’s diminished ability to cope with daily activities interferes with her ability to interact socially and maintain close and valued relationships as she did prior to the accident. Ms. Freedman further opines that the applicant’s low mood, anhedonia and chronic pain will likely continue to influence her mental behavioural status and impact close relationships in her life.
62While the respondent points to the continuation of a romantic relationship following the accident, this relationship also ended, as have many of her long-term friendships due to altercations which have led her to be avoidant which is indicative of a serious impairment in her useful functioning. In addition, I am confused by Dr. Sivasubramanian’s report which states” “She continues to maintain regular contact with her younger sister and her father, as well as a number of former friends”.
63While at the time of Dr. Sivasubramanian’s assessment the applicant did speak to one of her siblings, namely her younger sister, this relationship has also been strained as the evidence shows that they also no longer speak which is consistent with her post accident avoidance of interpersonal relationships. However, I was not pointed to evidence that would support Dr. Sivasubramanian’s opinion that the applicant is in regular contact with former friends, nor do I understand what Dr. Sivasubramanian meant by noting that the applicant is maintaining friendships with former friends.
64I find on a balance of probabilities that the applicant has sustained a marked impairment in her social function as a result of the accident.
Concentration, Persistence and Pace
65I find that the applicant has suffered a marked impairment in the domain of concentration, persistence and pace.
66The Guides specify that the factors to be considered under this domain are concentration, persistence and pace needed to perform many activities of daily living, including task completion. Task completion refers to the ability to sustain focused attention long enough to complete tasks commonly found in activities of daily living to sustain focused attention long enough to complete tasks commonly found in activities of daily living or at work. To consider the strength and weaknesses in mental concentration, there is a consideration of frequency of errors, the time it takes to complete the task, and the extent to which assistance is required to complete the tasks.
67The applicant’s position is that she has a marked impairment in the CPP domain. To support her position the applicant testified that she has difficulty with memory loss, is distracted, worried, angry, preoccupied with pain, upset and has difficulty with initiating and attaining restorative sleep. The applicant testified that she has been unable to return to her pre-accident employment at Community Care Access Centre (“ CCAC”) in client services performing intake services since the early 1990’s and that she relies on her post it notes throughout her home as reminder notes due to poor memory and relies on her son for bill payments due to frequent errors.
68In his report Dr. Gerber opines that the applicant is clearly markedly impaired in the domain of CCP. Dr. Gerber opined that the applicant continues to have ongoing problems with concentration and memory, she takes much longer to complete tasks, gets distracted when doing tasks and often needs assistance in completing tasks.
69The respondent’s position is that the applicant has suffered a moderate or class 3 impairment in the domain of CPP. The respondent submits that the applicant has not returned to her pre-accident employment because prior to the accident the applicant was having difficulty with a supervisor at work and that she had been on modified duties prior to the subject accident.
70In his report Dr. Sivasubramanian notes that the applicant complains of poor concentration and significant fatigue, which according to Dr. Sivasubramanian is ascribed by the applicant in part due to side effects of her medications. Dr. Sivasubramanian again suggests that the accompanying CNRs suggest that the applicant may be suffering from sleep apnea and that some of her current stressors appear to be unrelated to the subject accident.
71I agree with the applicant and find that the applicant has a class 4 marked impairment in the domain of CPP. While the respondent points to cracks and disputes with a supervisor of the applicant prior to the subject accident as being a barrier to the applicant’s return to work, the evidence does not support that the disputes in the applicant’s workplace prior to the accident led to the applicant’s inability to return to her pre-accident employment because the supervisor that had issues with the applicant had been re-assigned to another department prior to the subject accident.
72While the applicant was off work for approximately 3 years after her slip and fall, the applicant persisted to return to pre-slip and fall employment, a job she loved and worked at for approximately 30 years; this is not the case post subject accident due to her mental and behavioral impairments.
73The evidence shows that the applicant returned to work on modified duties from the time she returned to work from the slip and fall accident to the time of the subject accident. The applicant describes her work duties as providing referrals through CCAC to treating clinics and that her quota was 60 referrals per week and that prior to her slip and fall her referral quota was 90 per week. Her employer accepted that 60 referrals per week was within her capabilities for approximately 4 years, the time between her return to work from the slip and fall and the subject accident. Therefore, I accept that the applicant was able to complete the duties of her pre-accident employment prior to the subject accident and that her accident-related impairments have rendered her unable to return to her pre-accident employment.
74In addition, the occupational therapy reports support the applicant’s position that she is markedly impaired in the domain of CPP. In her report, Elyse Freedman the respondents occupational therapist, concludes that it is evident that the applicant’s pain, fatigue, fear of exacerbating her pain/causing further injury, low mood, cognitive limitations and reduced self confidence in her ability to perform tasks are impacting her ability to independently self-initiate, persist and complete a variety of meaningful and productive day to day activities on a consistent and regular basis, which in turn contributes to a reduction in her ability to complete those activities, roles and routines that she previously performed. I find that Ms. Freedman’s evidence is supportive of the applicant having sustained a marked impairment in the domain of CPP.
75Ms. Freedman’s opinion is in alignment with the applicant’s testimony and that of her son. The applicant’s son testified that he collects the mail and he and his mother sit down to open the mail and complete bill payments tasks together as the applicant forgot to pay condo fees on several occasions and that the hydro bills had been overpaid at times due to the applicant forgetting that the bill payment had already taken place, which in turn led to a period of financial hardship. The frequency of errors and the assistance required in completing tasks is consistent with an impairment level that significantly impedes useful functioning.
76Finally, the applicant’s inability to return to her pre-accident employment, forgetting to pay the bills, and relying on post it notes in the home for reminders for task completion and her reliance on medications such as Cyclobenzaprine for pain, trazodone in order to sleep, mirtazapine in order to sleep and lorazepam for panic attacks is further supportive evidence that post accident the applicant is unable to sustain focused attention long enough to complete tasks commonly found in her activities of daily living or work.
77I find on a balance of probabilities that the applicant has suffered a marked impairment in the domain of concentration, persistence and pace.
Adaptation
78I find that the applicant has a class 4 marked impairment in the domain of adaptation.
79The Guides specify that adaptation (deterioration or decompensation in work or work like settings) refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances, the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder, that is, Page 13 of 19 decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers.
80The applicant’s position is that she has a marked impairment in the AD domain. The applicant testified that she no longer participates in most of her leisure and recreational activities, and that she is unable to work since the accident. She testified that she has difficulty sleeping, suffers from headaches and pain all over, and that she has difficulty concentrating and sitting or standing in the same positions.
81In his report Dr. Gerber opines that the applicant struggles to make decisions, schedule and complete tasks. When carrying out tasks she often will forget important steps and forget to do things, she is not able to maintain attention and concentration for extended periods of time and struggles to deal with stressful situations. He further opines that she would struggle to attend work daily and in a timely fashion, she would struggle to schedule and complete tasks of her employment, she struggles with interactions with colleagues and co-workers and members of the public. Dr. Gerber opines that the applicant is clearly markedly impaired in the domain of AD.
82The respondent argues that the applicant was off and on from work prior to the subject accident and that her impairments arise out of a combination of her physical and mental and behavioural sequela.
83Dr. Sivasubramanian states that the applicant is incapable of returning to work because of somnolence associated with her medications, as well as anxiety, insomnia and irritability. He opines that she complains of physical pain (amplified by somatic symptom disorder) and that she remains relatively independent with her personal care and manages her medications on her own and that at the time of the accident the applicant was having significant mental health concerns and had resumed treatment with antidepressant medications and that her psychosocial stressors are unrelated to the subject accident. Dr. Sivasubramanian relies on the report of Ms. Freedman in supporting his opinion that the applicant has a moderate impairment in AD as a result of the accident.
84I disagree with Dr. Sivasubramanian’s rating of a moderate impairment in the domain of AD for the following reasons.
85Dr. Sivasubramanian continues to rely on the applicant’s pre-accident function and having found that the applicant was a fully functioning individual prior to the accident I cannot accept his apportionment based on her pre-accident level of function and his apportionment related to her physical impairments against her mental behavioural impairments because Dr. Sivasubramanian did not provide the Tribunal with a basis on how he separated and to what degree he separated the applicant’s physical and mental and behavioural impairments when assigning his impairment ratings.
86In addition, the occupational therapist report from Ms. Freedman that Dr. Sivasubramanian relied upon to inform his impairment ratings do not support the impairment rating of a class 3 moderate impairment in the domain of AD. Ms. Freedman’s opinion is that the applicant appears to be experiencing difficulties coping and managing with her symptoms post-collision and that she withdraws from tasks when her symptoms become heightened or when she fears that continuing with the task will cause further pain and injury.
87Ms. Freedman further opines that the applicant’s “ability to independently persist and complete tasks has been compromised by her ongoing pain, fatigue, fear of exacerbating her pain/causing further injury, low mood, anxiety/panic symptoms, cognitive issues and her low self-confidence in her ability to complete tasks as she previously did. In her report, she states: “Ms. Giralado’s tendency to avoid/withdraw from activities due to previously outlined symptoms and issues has contributed to impairments in her overall functioning, thus resulting in reduced ability to independently resume previously performed day to day activities, roles, routines, as well as re-integrate into her community”. I find Ms. Freedman’s evidence does not support Dr. Sivasubramanian’s position that the applicant has a moderate impairment in the domain of AD.
88On all the evidence before me, I find that on a balance of probabilities the applicant has a class 4 marked impairment in the domain of adaptation.
89Having found that the applicant has three class 4 marked impairments in the domains of social function, concentration persistence and pace, and adaptation, I find that the applicant is catastrophically impaired in accordance with Criterion 8 of the Schedule.
Interest
90Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not owing.
ORDER
91It is ordered that:
i. The applicant is catastrophically impaired in accordance with Criterion 8.
Released: December 1, 2025
__________________________
John Mazzilli
Adjudicator