Citation: Ryan v. Belair Insurance Company Inc., 2025 ONLAT 24-014395/AABS

Licence Appeal Tribunal File Number: 24-014395/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:

Devin J William Ryan

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR:

Nathan Prince

APPEARANCES:

For the Applicant:

Daniel Bassili, Counsel

For the Respondent:

Kevin So, Counsel

Heard by Videoconference:

September 2-8, 2025

OVERVIEW

1Devin William Ryan, the applicant, was involved in an automobile accident on January 6, 2023, 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, Belair Insurance Company Inc., 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 (“CAT”) as defined by the Schedule?

ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from February 12, 2025 to date and ongoing?

iii. Is the applicant entitled to $4,160.69 for occupational therapy services, proposed by Hamilton Health Sciences, in a treatment plan/OCF-18 (“plan”) submitted on November 5, 2024?

iv. Is the applicant entitled to the plans proposed by CBI Health, as follows:

1. $1,884.69 for driving rehabilitation, in a plan submitted on October 21, 2024; and

2. $1,585.00 for occupational therapy, in a plan submitted on July 4, 2024?

v. Is the applicant entitled to the plans proposed by Q Medical, as follows:

1. $2,525.23 for a psychiatry assessment, in a plan submitted on June 9, 2023; and

2. $9,322.50 for a neuropsychiatric assessment, in a plan submitted on April 1, 2024?

vi. Is the applicant entitled to the plans proposed by E Clinic United Healing, as follows:

1. $2,657.00 for psychological services, in a plan submitted on September 18, 2024;

2. $2,657.00 for psychological services, in a plan submitted on December 5, 2023?

vii. Is the applicant entitled to the plans proposed by FunctionAbility Rehabilitation Services LP, as follows:

1. $5,362.12 for speech language pathology services, in a plan submitted on October 4, 2024;

2. $3,751.14 for occupational therapy services, in a plan submitted on August 1, 2024; and,

3. 6,435.00 for social worker services, in a plan submitted on November 27, 2024?

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

3At the commencement of the hearing, the applicant withdrew issues 4, 7(iii), 7(iv), 8(iii), and 9 as listed in the Case Conference Report and Order (“CCRO”) issued to the parties on February 27, 2025.

RESULT

4The applicant has sustained a catastrophic impairment under Criterion 4, as defined in section 3.1(1)4 of the Schedule.

5The applicant is entitled to IRBs in the amount of $400.00 per week from February 12, 2025 to date and ongoing, plus interest.

6The applicant is not entitled to the treatment plans in dispute.

ANALYSIS

Background

7The applicant was injured when he fell from a moving truck and struck his head. He was rushed to Brantford General Hospital where he presented with a severe traumatic brain injury (“TBI”) and was urgently transferred to Hamilton General Hospital’s trauma team. The medical records from Hamilton Health Sciences (“HHS”) detail the severity of the applicant’s injuries. In addition to sustaining multiple skull fractures, a CT scan identified multicompartmental hemorrhaging and multiple intraparenchymal contusions within the bilateral inferior frontal lobes and bilateral anterior temporal lobes with mild surrounding perihemorrhagic edema. The CT scan also identified mild rightward infratentorial midline shift and small volume scattered pneumocephalus.

8As a result of his injuries, the applicant underwent an urgent left sided occipital and sub occipital decompressive craniectomy on January 6, 2023. He continued to exhibit increased intracranial pressure, and a repeat CT scan identified increased cerebral edema with blooming of his contusions which required him to undergo a left decompressive craniotomy on January 8, 2023. He later developed a venous sinus thrombosis secondary to his head injury and his recovery was further complicated by tracheobronchitis.

9On March 2, 2023, nearly two months after the accident, the applicant was transferred to Hamilton General Hospital’s Regional Rehabilitation Centre where he received an additional six weeks of inpatient care under the supervision of Dr. Zhihui (Joy) Deng, neurologist, before being discharged on April 13, 2023.

10On August 21, 2023, the applicant underwent a cranioplasty to replace two bone flaps in his skull that had been previously removed.

11Since the accident, the applicant has received numerous medical and rehabilitation benefits and has exhausted the $65,000 non-CAT monetary limits for medical and rehabilitation and attendant care benefits. If it is determined that the applicant is CAT, he will be entitled to enhanced accident benefits resulting in an increase in the policy limits from $65,000 for five years to $1,000,000 for life.

The applicant has sustained a catastrophic impairment under Criterion 4

12The applicant seeks a CAT determination under section 3.1(1)4 of the Schedule (“Criterion 4”), which sets out the following two-prong test, where both of the following need to be satisfied in order to qualify:

i. The applicant sustained an impairment which resulted in a traumatic brain injury which shows positive findings on a computerized axial tomography scan, a magnetic resonance imaging or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly; and

ii. When assessed in accordance with Wilson, J., Pettigrew, L. and Teasdale, G., Structured Interviews for the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale (“GOS-E”): Guidelines for Their Use, Journal of Neurotrauma, Volume 15, Number 8, 1998, (“Guidelines”) the injury results in a rating of Lower Moderate Disability (Lower MD or Lower MD*), one year or more after the accident.

13The parties agree that the applicant’s injuries satisfy the first prong of the test. As noted above, a CT scan conducted at HHS identified multicompartmental hemorrhaging, multiple intraparenchymal contusions, mild rightward infratentorial midline shift, and small volume scattered pneumocephalus. As such, I find that the first prong of the test for CAT determination under Criterion 4 of the Schedule has been met.

14The parties disagree as to whether the applicant meets the second prong of the test and have obtained competing GOS-E assessments from their respective assessors.

15The GOS-E consists of a structured interview in which the interviewer assigns a rating from 1 (dead) to 8 (good recovery) in the following eight categories:

i. Consciousness;

ii. Independence in the home;

iii. Independence outside the home;

iv. Restrictions in travel;

v. Restrictions with work;

vi. Restrictions in social and leisure activities;

vii. Disruptions to relationships with family and friends; and

viii. Return to normal life.

16The eight possible ratings in each category are as follows:

i. Dead

ii. Vegetative State

iii. Lower Severe Disability

iv. Upper Severe Disability

v. Lower Moderate Disability (“Lower MD”)

vi. Upper Moderate Disability (“Upper MD”)

vii. Lower Good Recovery

viii. Upper Good Recovery

17An individual’s GOS-E rating is the lowest rating assigned from the eight catagories. Thus, a rating of Lower MD in at least one of the eight categories is sufficient to find that the applicant is CAT under Criterion 4.

18In this case, the applicant’s assessors assigned a rating of Lower MD with respect to restrictions in work and disruptions to relationships with family and friends. The respondent’s assessors assigned a rating of Upper MD in these two categories. The following chart outlines the parties’ positions with respect to these two categories:

Applicant’s Lower MD rating (CAT)

Restrictions in work: Able to work only in a sheltered workshop or non-competitive job, or currently unable to work.

Disruptions to relationships with family and friends: Daily and intolerable psychological problems which have resulted in ongoing family disruption or disruption to friendships.

Respondent’s Upper MD rating (non-CAT)

Restrictions in work: Able to return to work in a reduced work capacity.

Disruptions to relationships with family and friends: Psychological problems which have resulted in ongoing family disruption or disruption to friendships which are Frequent or constant (once a week or more, but tolerable).

19The applicant relies on the section 25 occupational therapy (“OT”) assessment of Rebecca Lazaruk who assessed the applicant on January 15 and 16, 2024, and the OCF-19 completed by Dr. Deng dated February 28, 2024. Ms. Lazaruk administered the GOS-E and opined that the applicant was unable to work and that he suffered from constant (daily and intolerable) disruption to his relationships with his family and friends which corresponds to a GOS-E rating of Lower MD. Dr. Deng assessed the applicant on February 28, 2024, and endorsed Ms. Lazaruk’s GOS-E ratings and subsequently completed the applicant’s OCF-19.

20The respondent relies on the section 25 OT assessment of Stacey Woods who assessed the applicant on June 20 and 27, 2024, and the section 44 CAT assessment of Dr. Curt West, neuropsychologist, who assessed the applicant on July 16, 2024. Dr. West administered the GOS-E and found that the applicant had the ability to work in a reduced capacity and that he suffered from frequent (once a week or more, but tolerable) disruption to his relationships with his family and friends. These findings led Dr. West to conclude that the applicant had a GOS-E score of Upper MD and therefore was not CAT under Criterion 4. In addition to relying on the findings of its assessors, the respondent also challenges the validity of the applicant’s GOS-E assessment on the basis that it is non-compliant with section 45(2) of the Schedule.

21For the reasons that follow, I find that the applicant’s GOS-E is compliant with the Schedule, and that he meets the criteria for CAT under Criterion 4

The applicant’s GOS-E is compliant with the Schedule

22Section 45(2) of the Schedule states:

i. an assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician but the physician may be assisted by such other regulated health professionals as he or she may reasonably require.

ii. Despite paragraph 1, if the impairment is a traumatic brain impairment only, the assessment or examination may be conducted by a neuropsychologist who may be assisted by such other regulated health professionals as he or she may reasonably require.

23The respondent submits that the applicant’s GOS-E was not administered by a physician or neuropsychologist and should therefore not be considered. In support of its position, the respondent relies on several decisions of this Tribunal: Abdi v. TD General Insurance Company, 2021 CanLII 127474 (ON LAT) (“Abdi”), Anwar v Travelers Insurance, 2023 CanLII 50606 (ON LAT) (“Anwar”) and Adams v. Federated Insurance Company of Canada, 2022 CanLII 38859 (ON LAT) (“Adams”).

24In Abdi, the Tribunal found that the GOS-E must be administered by a physician or neuropsychologist and that a GOS-E assessment administered by an OT does not comply with the Schedule or the GOS-E Guidelines. The basis for reaching this conclusion was that the GOS-E requires the exercise of judgement or an opinion on causation which is outside the scope of an OT.

25Similarly, in Anwar, the adjudicator adopted the reasoning in Abdi and found that the applicant’s GOS-E assessment conducted by an OT and reviewed by a neuropsychologist held no weight because it was not compliant with the Schedule. At paragraph 18 of the decision, the adjudicator held that “being provided a report from an assessment is unlike conducting an assessment” and that “conducting an assessment and issuing an independent report to be vetted by a neuropsychologist, is contrary to the spirit of section 45(2)(2) of the Schedule”.

26Finally, in Adams, the Tribunal outlined an OT’s role with respect to the GOS-E, stating that an OT assessment can only be used as an aid and that a physician or neuropsychologist are the only medical disciplines capable of conducting an assessment or examination to determine catastrophic impairment. While a physician or neuropsychologist may be assisted by other regulated health professionals, the adjudicator held that a plain reading of section 45(2) leads to the conclusion that any assistance, such as that from an OT, must play at most a secondary role in an assessment.

27I note that I am not bound by prior decisions of the Tribunal and, in any event, find Abdi and Anwar to be distinguishable from this matter. In these cases, the neuropsychologist who made the CAT determination did not assess the applicant and relied on assessments conducted by other individuals. This is not the case in the matter before me where Dr. Deng met with the applicant and performed her own assessment.

28In any event, I find that having an OT administer the GOS-E, to be later interpreted and adopted by a physician based on their own assessment, is compliant with the Schedule and the Guidelines for the following reasons.

29I find that the Guidelines do not require the GOS-E to be administered by a physician. The Guidelines do not explicitly state that the GOS-E must be administered by a physician and, in fact, the Guidelines reference and analyze a study where the interviewers who administered the GOS-E were non-physicians. In outlining the methodology of this study, the Guidelines note that “the outcome category was independently assigned by a research psychologist and either one of two research nurses. Interviews were carried out face to face on the same day. Raters carried out a structured interview using the GOSE questionnaire and used the information to assign outcomes.” As such, it is clear from the Guidelines, that the GOS-E may be administered by non-physicians.

30This interpretation of the Guidelines was corroborated by Dr. Deng’s testimony in which she stated that the GOS-E is often conducted by OTs, and later interpreted by her. Even the respondent’s CAT assessor, Dr. West, did not go so far as to suggest that he GOS-E must be administered by a physician. In his report, Dr. West notes that the GOS-E should ideally be administered by a neuropsychologists, neuropsychiatrists, or neurologists, but does not indicate that this is a requirement.

31I also find that the Schedule does not require the GOS-E to be administered by a physician or neuropsychologist. The Schedule requires a physician or neuropsychologist to make a determination of catastrophic impairment; however, section 45(2) explicitly notes that they may be assisted by other health professionals as reasonably required. I do not take this to mean that the assistance must be secondary at most, as suggested in Adams. The only restriction on the level of assistance contemplated by the Schedule, is that the assistance must be reasonably required. A plain reading of this provision suggests that the assistance received by a physician may, in fact, be more than secondary if it is reasonably required. I find that limiting assistance to a secondary role places restrictions on physicians which may impact their ability to assess individuals and does not align with the consumer protection nature of the Schedule. As noted above, Dr. Deng testified that it was common practice for OTs to administer the GOS-E and therefore I find that having Ms. Lazaruk administer the applicant’s GOS-E was reasonable and in compliance with section 45(2).

32Even if my interpretation of the Guidelines and section 45(2) of the Schedule is incorrect, I find that Dr. Deng adequately assessed the applicant in compliance with the Schedule. Dr. Deng is the applicant’s treating neurologist and therefore has a thorough understanding of the applicant’s impairments. On February 28, 2024, Dr. Deng met with the applicant in person to assess his impairments and determine whether he met the criteria for CAT under Criterion 4. Dr. Deng testified that, during this meeting, they discussed the applicant’s progress, ongoing issues, his ability to work, and his relationships with family and friends. Dr. Deng testified that she agreed with Ms. Lazaruk’s findings on the GOS-E because they were consistent with her own observations. After meeting with the applicant, Dr. Deng completed the applicant’s OCF-19 wherein she opined that, based on her assessment and observations, the applicant met the criteria for CAT under Criterion 4. The Schedule requires a physician or neuropsychologist to make a determination of catastrophic impairment, and I find that this is precisely what transpired in this matter.

33Based on the foregoing, I find the applicant’s GOS-E assessment to be compliant with section 45(2) the Schedule and the Guidelines and will now consider the substantive merits of the parties’ GOS-E ratings.

The applicant is unable to work one-year post accident

34While the parties agree that the applicant is unable to work on a full-time basis, they disagree on the extent of his limitations. The applicant’s assessors opined that the applicant was unable to work one-year post accident and assigned a rating of Lower MD (CAT), whereas the respondent’s assessors opined that the applicant was able to work in a reduced capacity and assigned a rating of Upper MD (non-CAT).

35The applicant has not returned to his pre-accident employment with Alpha-Vico, a furniture manufacturing company, where he had worked since 2007 after graduating high school. He began as a summer student and was responsible for assembly on the factory floor. He worked his way through various positions within the company before transitioning to an office role as a Sales Coordinator, a position he had held for nearly a decade before his accident. His primary responsibilities included liaising with customers, preparing quotes, reviewing contracts, providing warehouse assistance when necessary, attending trade shows in Ontario and western Canada, and conducting site visits. The majority of his days were spent working on a computer answering emails, completing shipping documentation, and preparing quotes.

36The applicant’s supervisor, Frank Malenfant, testified that the applicant was very dedicated to his job, would often work extra hours, was always punctual, and never complained about working outside of business hours. He described the applicant as polite and always willing to help and noted that he had never had any altercations, confrontations, or arguments with the applicant. Despite the applicant’s tenure and performance, the applicant’s employment at Alpha-Vico was terminated two-years post accident because he had not returned to work.

37Ms. Lazaruk conducted a 2-day OT assessment with the applicant and noted ongoing issues with fatigue, memory, attention, executive functioning, and cognitive-communication skills. The applicant withdrew from the situational assessment early on day 2 due to fatigue, headache, and visual concerns (double vision). From a cognitive perspective, the applicant exhibited memory issues throughout the assessment, including an inability to recall enough details from a nine-minute Ted Talk to write a short paragraph about it. He also demonstrated poor attention to detail when attempting planning activities and the quality of his written work was also noted to be poor. Ms. Lazaruk noted that the applicant’s limitations were consistent with his self-reports and the information obtained from the applicant’s girlfriend and sister during collateral interviews.

38Based on her assessment, Ms. Lazaruk opined that the applicant was unable to work due to various cognitive challenges including poor memory, attention to detail, and executive functioning skills including challenges with summarizing information, thought generation and written output, and stamina/fatigue. Dr. Deng testified that she agreed with Ms. Lazaruk’s opinion that the applicant was unable to work noting that it would be unrealistic to expect him to return to work one-year post accident due to the severity of his TBI.

39The applicant further relies on the testimony and reports of his treating OT, Kristen McGrath. In an OT progress report dated September 7, 2023, Ms. McGrath notes that the applicant continues to have difficulty with energy conservation, pacing, memory, and planning which negatively impact his ability to engage in activities without fatigue and to recall appointment dates, manage finances, drive, and work. A follow-up report dated August 13, 2024, indicates that the applicant continued to display cognitive difficulties that prevent him from returning to work due to distractibility, difficulty planning and organizing, obsessive thoughts, and increasing severity of depressive and anxiety symptoms. Ms. McGrath testified that that the applicant is unable to work due to physical limitations (fatigue), cognitive limitations (inability to multitask or engage in any sustained activity for longer than 30-45 minutes), and emotional limitations (mood dysregulation, irritability, anger). She further testified that she had attempted to implement various work hardening tasks; however, these efforts were unsuccessful.

40The applicant’s inability to work one-year post accident is also supported by the report and testimony of Dr. Emilie Sheppard, neuropsychologist, who assessed the applicant on December 5, 7, and 8, 2023. Dr. Sheppard administered a battery of neurocognitive tests which highlighted impairments or borderline results with respect to confrontation naming, phonetic generative fluency, sustained attention (visual), visual information retrieval, and visual information recognition. Dr. Sheppard testified that the presence of a single impairment or borderline result can have a significant impact on functionality and noted that the applicant continues to experience cognitive, affective, behavioural and physical symptoms, which continue to significantly interfere with his functional abilities in daily life. She also noted that the applicant continues to demonstrate challenges with word finding, processing efficiency (fluctuating processing speed and poor sustained attention), as well as challenges with visual learning and retrieval, impulse control, and planning. Dr. Sheppard opined that the applicant would struggle with processing larger volumes of information over extended periods of time and consistent mental effort. While Dr. Sheppard’s report does outline a plan for gradual return to work, she testified that she did not think this was realistic given the applicant’s aforementioned limitations.

41In contrast, the respondent’s s44 CAT assessor, Dr. West, opined that the applicant was able to work in a reduced capacity. Dr. West administered several objective tests and conducted validity testing. These tests showed no impairments to memory or executive functioning. In addition, the validity testing indicated that the applicant exceeded the maximum acceptable cutoff score for suspected malingering and suggested the presence of clear symptom exaggeration/over-reporting. Dr. West concluded that he did not believe that a position could reasonably be advanced that the applicant was unable to work.

42I prefer the findings of Ms. Lazaruk, Dr. Deng, Ms. McGrath, and Dr. Sheppard to that of Dr. West for the following reasons:

i. Dr. West’s conclusion that the applicant is able to work is an outlier and not consistent with the bulk of the medical evidence. Ms. Lazaruk, Dr. Deng, Ms. McGrath, and Dr. Sheppard all testified that the applicant was unable to work one-year post accident due to various physical, cognitive, and emotional limitations which were observed during various OT assessments and confirmed by Dr. Sheppard’s objective testing. I found the applicant’s assessors to be credible witness and found their conclusions to be consistent with the severity of the applicant’s TBI and diagnostic imaging which showed bilateral encephalomalacia in the applicant’s anterior temporal and frontal lobes.

ii. I am not persuaded that the applicant exaggerated/over-reported his symptoms. I found the applicant to be a credible witness and found his reporting to all assessors to be consistent and reliable. Furthermore, Dr. West’s validity testing is in contrast to the validity testing performed by Dr. Shepperd who found no evidence of symptom magnification.

iii. Dr. West testified that his belief that the applicant was able to work in a reduced capacity aligned with Dr. Sheppard’s findings; however, I find this to be inaccurate. As previously noted, Dr. Sheppard testified that she did not think that a return to work was realistic, despite providing a return-to-work plan in her report.

iv. Both Ms. Lazaruk and Dr. Sheppard conducted collateral interviews, whereas Dr. West did not. Ms. Lazaruk conducted collateral interviews with the applicant’s girlfriend and sister and Dr. Sheppard interviewed the applicant’s girlfriend. The Guidelines recommend that, whenever possible, a relative or close friend of the head injured person should be interviewed because an individual with a TBI may lack insight. On cross-examination, Dr. West testified that he did not think a collateral interview was necessary because he did not think that the applicant lacked insight. However, this assertion is inconsistent with the medical record which Dr. West indicated he reviewed. The medical record makes numerous references to the applicant’s lack of insight from several individuals including Dr. Deng, Ms. Lazaruk, as well as treatment providers from HHS.

43For the foregoing reasons, I find that that the applicant was unable to work one-year post accident which equates to a rating of Lower MD in this category. As previously noted, a rating of Lower MD in at least one of the eight categories is sufficient to find that the applicant is CAT under Criterion 4 and therefore I find that the applicant is CAT under Criterion 4. However, for the sake of completeness, I will also consider the applicant’s GOS-E ratings with respect to disruptions to relationships with his family and friends.

The applicant’s disruptions to relationships with family and friends are constant (daily and intolerable)

44The parties agree that the applicant’s TBI has impacted his relationships with family and friends; however, they disagree on the extent.

45Ms. Lazaruk and Dr. Deng opined that the applicant is presented with daily challenges with respect to his relationships with family and friends and that the breakdown of these relationships is sufficient to warrant a rating of Lower MD (CAT) because the disruptions are daily and intolerable.

46In contrast, Dr. West opined that the disruptions to relationships with family and friends were more aligned with a rating of Upper MD (non-CAT) on the basis that the disruption was “frequent – once a week or more but tolerable”. Dr. West’s report indicates that a Lower MD rating was not at all plausible or supportable; however, I was not pointed to any analysis on why he believed this to be the case.

47Prior to the accident, the applicant was extremely active. He testified that he would golf on a weekly basis, attend the gym 3-4 times per week, would socialize with his friends 2-3 times per week, and see his brother or sister once or twice per week.

48Since the accident, the applicant described his social life as “non-existent”. He testified that he had only golfed twice since his injury, very rarely saw his friends or siblings, and no longer went to the gym. He did not have clear insight as to why the relationships with his friends had broken down but suspected that it was due to the fact that he no longer consumed alcohol in addition to personality changes resulting from his TBI.

49The applicant’s girlfriend, Cassandra Dickson, testified that it was her belief that the applicant’s relationships with friends deteriorated due to changes in his personality and his inappropriate behaviour is social settings. She highlighted that the applicant has difficulty controlling his emotions since the accident, gets easily frustrated, and is prone to lashing out. Since the accident, Ms. Dickson also noted that the applicant has become very opinionated and has gotten into arguments with many of his friends.

50A long-time friend of the applicant, Matthew McLeod, testified that the majority of the applicant’s friendships had broken down since his injury. Prior to the accident, Mr. McLeod and the applicant were part of a close group of friends who would socialize most weekends and occasionally during the week. They would golf, go out for dinner, and watch sports. Since the accident, several of these friendships have completely deteriorated due to the applicant “butting heads” with his friends. Mr. McLeod described the applicant as having less of a filter and saying things in social settings that would normally not be socially acceptable.

51During the collateral interviews conducted by Ms. Lazaruk, both Ms. Dickson and the applicant’s sister described the applicant as dominating conversations and exhibiting aggressive communication behaviours. They characterized his behaviour as “annoying” and believed that this has likely contributed to the breakdown of his friendships.

52With respect to the applicant’s relationship with his girlfriend, while they have remained together since the accident, their relationship has fundamentally shifted. Ms. Dickson testified that the applicant’s behavioural changes have put a strain on their relationship as he is more combative, easy to anger, and “on edge”. Since the accident, Ms. Dickson has moved in with the applicant and has taken on more of a supportive role to assist the applicant with his functional limitations. She provides reminders to ensure that the applicant consistently completes self-care tasks such as applying deodorant or brushing his teeth, must be vigilant to ensure safety (e.g. the applicant has occasionally forgotten to turn off the stove), and oversees finances and provides the applicant with a weekly allowance.

53I prefer the opinions of Ms. Lazaruk and Dr. Deng to that of Dr. West. As previously noted, Ms. Lazaruk conducted collateral interviews to ascertain the impact of the applicant’s TBI on his relationships with friends and family, whereas Dr. West did not. I find this to be especially important in light of the fact that the applicant does not have clear insight into why his relationships have broken down. Furthermore, the Guidelines indicate that withdrawal and social isolation, which I find to be present here, is indicative of constant disruption. Finally, I found the testimony of the applicant, Ms. Dickson, and Mr. McLeod to be persuasive and an accurate representation of the breakdown of the applicant’s relationships post-accident.

54The respondent submitted that the applicant’s ability to maintain a relationship with Ms. Dickson is sufficient to assign a rating of Upper MD. I disagree. The presence of a continuing relationship with Ms. Dickson does not preclude the applicant from experiencing daily and intolerable disruption to relationships with family and friends. I find the evidence before me demonstrates that there has been a substantial breakdown in the applicant’s social network and that he has become withdrawn and isolated. On this basis, I find that a rating of Lower MD more accurately describes the nature of the applicant’s relationships with his family and friends post-accident.

55For the foregoing reasons, I find that the disruptions to relationships with family and friends are constant (daily and intolerable) and assign a rating of Lower MD in this category. As such, I find that the applicant meets the criteria for CAT under Criterion 4.

The applicant is entitled to post-104 week IRBs

56To receive payment for a post-104 week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

57The applicant submits that he remains unable to work due to the impairments resulting from his severe TBI. He relies upon the reports and testimony of the various aforementioned CAT assessors as well as the testimony and section 25 neuropsychiatric assessment of Dr. Robert van Reekum, conducted May 13, 2025.

58The respondent submits that the applicant is able to work, albeit in a reduced capacity, and relies on a multidisciplinary IRB assessment which included a paper review by Dr. West dated December 10, 2024; a functional abilities evaluation conducted by Brian Souter, chiropractor, on December 16, 2024; an orthopaedic examination by Dr. Greg Jaroszynski on December 11, 2024; a labour market survey and vocational evaluation report authored by Kelly-Ann Smith, a certified vocational evaluation specialist, on December 18-19, 2024; and an executive summary completed by Laurie King, chiropractor. The respondent also relies upon surveillance of the applicant conducted on May 20, 23, 25, 28, and 29, 2025 which, it submits, supports the position that the applicant is able to work.

59As outlined in the CAT analysis above, the applicant worked at Alpha-Vico since graduating high school in 2007. During this time, he was responsible for liaising with customers, preparing quotes, reviewing contracts, providing warehouse assistance when necessary, attending trade shows in Ontario and western Canada, and conducting site visits. The majority of his days were spent working on a computer answering emails, completing shipping documentation, and preparing quotes.

60In her vocational evaluation, Ms. Smith opines that the applicant’s education, training, and experience would allow him to pursue employment as a property administrator, estimator, retail buyer, wholesale buyer, customer services representative, or information services supervisor. However, Ms. Smith explicitly notes that there may be medical contraindications that could preclude the applicant from pursuing employment, and she deferred to medical specialists to determine whether these vocational alternatives are reasonable from a medical or psychological perspective. While Ms. Smith’s report highlights employment that the applicant may be qualified for based on his experience, training, and education, she does make any finding with respect to the applicant’s ability to work.

61The applicant relies on the various CAT assessments outlined in the CAT analysis above, many of which were completed around one-year post-accident. While these reports are of limited assistance in speaking to the applicant’s ability to work 104 weeks post-accident, they nonetheless form a baseline for the applicant’s functionality at the one-year mark. As discussed above, I found that the applicant was unable to work one-year post-accident due to a multitude of physical, cognitive, and emotional factors, and for the reasons that follow, I find that the applicant remains unable to work 104 weeks post-accident.

62I find the report of Ms. McGrath, the applicant’s treating OT, dated August 13, 2024 (approximately 83 weeks post-accident) to be persuasive. This report outlines the applicant’s progress with respect to work hardening and notes that his status has been “declining”. Prior to April 2024, Ms. McGrath was assigning work-related work hardening tasks such as preparing quotes; however, due to cognitive fatigue and cognitive impairments, the tasks were changed to general cognitive tasks. Ms. McGrath observed that the applicant’s ability to persist was declining, noting that he had originally been able to engage in work hardening tasks for 1.5 to 2 hours but was now struggling to remain focussed after 30 minutes. As of the date of her report, Ms. McGrath did not believe that the applicant was able to return to work due to cognitive impairment. I find this report to be demonstrative of the fact that the applicant’s ability to work had not improved between one-year post accident and 83 weeks post-accident.

63I also heard testimony from Dr. van Reekum’s who assessed the applicant after the 104-week mark. I found Dr. van Reekum to be a credible witness and I found his report and testimony to be informative and persuasive. Dr. van Reekum highlighted the presence of bilateral anterior temporal and frontal lobe encephalomalacia which he suggested formed a neurobiological basis for the applicant’s impairments. Dr. van Reekum undertook a comprehensive review of the medical documentation and conducted a 90-minute assessment with the applicant and opined that he was unable to work due to cognitive impairments, anergia, disinhibition, and apathy. He testified that, even if the applicant attempted a return to work, that maintaining employment would be a significant challenge due to his aforementioned impairments.

64With respect to the respondent’s assessors, I am not persuaded by the reports of Dr. Souter or Dr. Jaroszynski. Dr. Souter’s functional abilities evaluation focuses on the applicant’s ability to perform physical tasks including lifting, carrying, walking, standing, sitting, and pushing/pulling. Dr. Souter concluded that the applicant had the ability to complete work duties occasionally to frequently at the light to medium strength level of work capacity. Similarly, Dr. Jaroszynski’s orthopedic assessment did not identify any orthopedic impairments that would preclude the applicant from resuming some form of an occupation. While I acknowledge that the applicant may have the physical ability to complete certain tasks in a limited capacity, the vocations that he is qualified for based on his education, training, and experience are not physical in nature. Ms. Smith’s vocational assessment indicates that suitable employment would include positions as a property administrator, estimator, retail buyer, wholesale buyer, customer services representative, or information services supervisor and she further notes that these positions would involve limited physical demands. As discussed in the CAT analysis above, I found the applicant’s inability to work was multifactorial and included numerous cognitive and emotional impairments stemming from his severe TBI and therefore do not find Dr. Souter or Dr. Jaroszynski reports to be persuasive evidence of the applicant’s ability to work.

65I am also not persuaded by Dr. West’s paper review in which he concluded that the applicant does not meet the test for post-104 week IRBs. As previously discussed, Dr. West was of the belief that the applicant had the ability to work one-year post accident. His IRB paper review indicates that there is “no new or compelling objective information of a neurocognitive or a psychological nature that would suggest to me that I should alter or amend any of the opinions I previously offered”. As such, he concluded that the applicant had the ability to work 104 weeks post-accident. As previously noted, I did not find Dr. West’s CAT report to be persuasive, and because his CAT report is the basis for his conclusions regarding IRBs, I am equally unpersuaded by his IRB paper review.

66Finally, I am not dissuaded by the respondent’s surveillance evidence. The respondent conducted surveillance over a 5-day period in May 2025. On two of the days, the applicant was seen assisting Mr. McLeod who owns a window and door installation company. The surveillance footage shows the applicant attending a job site on both days and completing various physical tasks including cleaning up garbage, loading up a trailer, and removing trim. Mr. McLeod testified that he was trying to help his friend by getting him out of the house for a couple of days and that the applicant was not remunerated for his time and did not provide assistance on any other occasion. Mr. McLeod indicated that during the applicant’s two days on-site, he required frequent breaks, was disruptive to employees, and was having difficulty completing tasks. The applicant testified that, after assisting Mr. McLeod, he spent the evening and following day in bed recuperating. As previously indicated, I found the applicant and Mr. McLeod to be credible witnesses, and in any event, I find the surveillance footage to be of little assistance in assessing whether the applicant can maintain gainful employment in a vocation for which he is reasonably suited by education, training or experience. The surveillance footage shows the applicant completing basic menial physical tasks which I find does not speak to the cognitive demands required for positions such as a property administrator, estimator, retail buyer, wholesale buyer, customer services representative, or information services supervisor.

67For the foregoing reasons, I find that the applicant is entitled to post-104 week IRBs because he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

The applicant is not entitled to the treatment plans in dispute

68To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

69At the outset of the hearing, I advised the parties that they were required to make submissions on the reasonableness and necessity of the various plans in dispute. To assist the parties in this regard, I agreed to provide the parties with additional time for closing submissions, over and above the 30-minute allotment outlined in the CCRO.

70Despite my instructions and the provision of additional time, the applicant did not make submissions explaining why the various treatment plans were reasonable and necessary. As noted above, it is the applicant’s onus to prove entitlement to the benefits claimed. The applicant must direct the Tribunal to the relevant evidence in support of his case and explain why he should be entitled to the benefits being sought. The applicant cannot simply submit evidence and leave it up to the Tribunal to connect the dots and make his case.

71I find that the applicant has fell short in meeting his onus in proving that the plans in dispute are reasonable and necessary. As such, I find that the applicant is not entitled to the plans in dispute.

Interest

72Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

73As I have found the applicant to be entitled to post-104 week IRBs, it follows that the applicant is entitled to interest on this benefit.

ORDER

74For the above reasons, I find:

i. The applicant has sustained a catastrophic impairment under Criterion 4, as defined in section 3.1(1)4 of the Schedule;

ii. The applicant is entitled to IRBs in the amount of $400.00 per week from February 12, 2025 to date and ongoing, plus interest; and

iii. The applicant is not entitled to the treatment plans in dispute.