Chrysanthus Paranawithana v. Certas Home and Auto Insurance Company, 2025 CanLII 135618

RECONSIDERATION DECISION

Citation: Paranawithana v. Certas Home and Auto Insurance Company, 2025 ONLAT 24-007719/AABS-R

Before: Craig Mazerolle, Vice-Chair

Licence Appeal Tribunal File Number: 24-007719/AABS

Case Name: Chrysanthus Paranawithana v. Certas Home and Auto Insurance Company

Written Submissions by:

For the Applicant: Savannah Chorney, Counsel

For the Respondent: Eric B. Heath, Counsel

OVERVIEW

1On September 3, 2025, the respondent requested reconsideration of the Tribunal’s decision released August 13, 2025 (“decision”).

2Stemming from an accident on August 3, 2018 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), the parties participated in a videoconference hearing. In the decision, the panel found the applicant was catastrophically impaired based on Criterion 7, and he was entitled to attendant care benefits and housekeeping and home maintenance benefits (though only after he had provided proof that the benefits had been incurred). The panel further found the applicant did not demonstrate that he was entitled to the disputed medical benefits, award, or interest.

3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;

b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or

c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

4The respondent relies on Rule 18.2(a) and Rule 18.2(b) to support its request. It is asking for an order to either cancel the finding that the applicant is catastrophically impaired, or, in the alternative, to set up a new hearing.

5The applicant asks the Tribunal to deny the request, or, in the alternative, for the Tribunal to render a decision about Criterion 8.

RESULT

6The respondent’s request for reconsideration is dismissed.

PAGE LIMITS

7In the reconsideration order (released October 2, 2025), the Tribunal noted that the respondent’s initial reconsideration submissions exceeded the page limit set out in Rule 18.1. According to the order, it is “at the discretion of the adjudicator hearing the request for reconsideration whether to consider submissions that exceed the prescribed page limit.”

8Considering I have dismissed the respondent’s reconsideration request, I do not find it is necessary to address its procedural breach.

ANALYSIS

9The test for reconsideration under Rule 18.2 involves a high threshold, and the requesting party must show how or why the decision falls into one of the categories in Rule 18.2. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence.

10Since the respondent’s request is based on the Tribunal’s finding under Criterion 7, it is important to lay out a summary of how the panel concluded that the applicant was catastrophically impaired.

11To be deemed catastrophically impaired under Criterion 7, an applicant must show they have combined impairment ratings that meet or exceed the threshold of 55% whole person impairment (“WPI”). These impairments may be physical or psychological in nature. Psychological impairment ratings are determined in accordance with Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”), 6^th edition, 2008, and they are combined with the physical ratings from the 4^th edition, 1993, of the AMA Guides using the Combined Values Table.

12In this case, the panel was satisfied that the applicant had established physical WPI ratings totalling 35%, i.e., a combined 19% rating for the three aspects of the musculoskeletal system; a 17% rating for headaches; and a 3% rating for treatment/medications. The panel then concluded that the applicant had demonstrated a 30% rating in the mental and behavioural category. When these two amounts were merged in the Combined Values Table, the applicant was left with a total WPI of 55%. He was deemed catastrophically impaired.

13The respondent challenges the panel’s conclusion in four ways. The first ground is based on Rule 18.2(a), while the other three grounds are based on Rule 18.2(b). I find the respondent has not established any grounds for reconsideration.

Rule 18.2(a) – Sufficiency of Reasons

14The respondent claims the panel did not provide “fulsome reasons and analysis” to support their acceptance of the 30% rating under the mental and behavioural category. It highlights the panel’s assessment of the applicant’s psychiatric assessor, Dr. Shahzad Shahmalak, claiming there is an insufficient explanation for why they preferred this evidence over the opinion of its psychiatric assessor, Dr. Velan Sivasubramanian.

15As noted by the Supreme Court of Canada at paragraph 79 in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), reasons ensure the fairness and legitimacy of decision-making (citations removed):

Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner. Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power.

16Further, as the Supreme Court stated at paragraph 39 in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), reasons allow decisions to be questioned: “Reasons are invaluable if a decision is to be appealed, questioned, or considered on judicial review”.

17In light of the guidance provided in these cases, I do not accept the respondent’s position that there were insufficient reasons to explain this part of the decision.

18The panel provided a comprehensive review of the parties’ psychiatric assessments, with specific reasons provided for why Dr. Shahmalak’s opinion was preferred over the opinion from Dr. Sivasubramanian. Most notably, at paragraphs 58, 60 + 61, the panel explained that, due to the overlap between their diagnoses of Somatic Symptom Disorder, they found Dr. Shahmalak’s conclusions better captured the impact of this disorder, and, by extension, better supported his Psychiatric Impairment Rating Scale (“PIRS”) score:

Both experts agree that after administering the [Global Assessment of Function] scale, the applicant should be assigned a rating of 15%. Both experts also agree that the applicant should be assigned a rating of 30% for the [Brief Psychiatric Rating Scale]. The difference in the total rating for mental and behavioural impairment falls therefore to the results of the PIRS scale where Dr. Shahmalak assigned a rating of 30% and Dr. Sivasubramanian assigned 15%.

Having reviewed the experts’ reports and considering the experts’ testimonies, we find that the opinion of Dr. Shahmalak is more in line with the medical evidence. Both psychiatrists’ diagnoses and observations were similar, however Dr. Sivasubramian testified that he reduced his rating because he found the applicant’s pain was caused by his physical impairments. We do not find this consistent with the experts’ diagnoses. Both psychiatrists diagnosed the applicant with, in part, Somatic Symptom Disorder, a mental health condition which influences the applicant’s pain complaints. Dr. Sivasubramian also testified that the applicant had an excessive preoccupation with pain. We therefore do not agree with Dr. Sivasubramian that the applicant’s pain complaints were solely or primarily caused by his physical impairments.

Due to the diagnosis of Somatic Symptom Disorder, we find that Dr. Sivasubramanian’s explanation for reducing the PIRS score was not supported by the evidence…

19These reasons adequately explain the decision-making process that the panel used to assess the relative weight of the parties’ competing psychiatric opinions. As such, the panel’s conclusions are justified and do not appear arbitrary. They also allowed me to complete my review during this reconsideration process.

20I accept that the panel notes “the opinion of Dr. Shahmalak is more in line with the medical evidence”, a statement that does not indicate what “medical evidence” is being referred to. However, I find this alleged deficiency is akin to the “line-by-line treasure hunt for error” that the Supreme Court cautions against in Vavilov. Though this quotation refers to the standard that courts should use when assessing administrative decision-making, this passage still provides helpful guidance for my reconsideration review (at paragraph 102, citations removed):

To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”.

21The panel engaged in a detailed analysis of the reports from Drs. Shahmalak and Sivasubramian. Though more detail about what “medical evidence” the panel was referencing at paragraph 60 would have been helpful, I do not find I am unable “to trace the decision maker’s reasoning”.

22In sum, I find the panel has provided sufficient reasons to explain their conclusions about the mental and behavioural impairment WPI rating. The respondent has not established a breach of procedural fairness, pursuant to Rule 18.2(a).

Rule 18.2(b) – Mental and Behavioural Impairment

23In a similar vein, the respondent’s second ground for reconsideration is that the panel reversed the onus for the mental and behavioural impairment WPI rating. Specifically, the respondent claims the panel focused on deficiencies in its assessor’s findings, as opposed to showing why they accepted Dr. Shahmalak’s rating. For instance, the respondent alleges the panel did not provide sufficient examples to support their finding that Dr. Shahmalak’s PIRS score was an accurate appraisal of the applicant’s functional capacities.

24For many of the same reasons as above, I find the respondent has not demonstrated an error in the panel’s handling of Dr. Shahmalak’s opinion. The panel compared the parties’ psychiatric reports, and they found the overlap between these opinions was persuasive support for Dr. Shahmalak’s higher rating. Specifically, since the panel found their “diagnoses and observations were similar”, they turned their attention to the assessors’ justifications for the divergent PIRS scores. The panel did not accept Dr. Sivasubramian’s explanation, and they found Dr. Shahmalak’s rating was more persuasive. Following this chain of reasoning, I see no reversal of the applicant’s onus.

25I further find that, while the respondent argues that examples of the applicant’s functional limits should have been explored when assessing the PIRS scores, this argument is, in effect, a disagreement with the conclusion. The panel was entitled to weigh the relative reliability of these two opinions, a comparison they made based on the assessors’ justifications for their PIRS scores. Since the panel found the key disparity between the experts’ reports was their differing PIRS scores, I see no error with this approach.

Rule 18.2(b) – Musculoskeletal System

26Turning to the physical impairment ratings, the respondent argues that there was an insufficient basis to accept the applicant’s combined 19% WPI rating for the musculoskeletal system. According to the respondent, the panel did not have the necessary, objective evidence before them to accept a 10% rating for the lumbosacral spine:

Without objective evidence of radiculopathy, including loss of relevant reflexes unilateral atrophy 2 cm above or below the knee compared to measurements at the contralateral side, and/or electrodiagnostic findings confirming radiculopathy on the evidentiary record, the LAT’s finding of a DRE III lumbo-sacral impairment with 10% WPI is incorrect…

27The respondent contrasts the noted importance of “objective indicators” for DRE ratings in the AMA Guides against the uncertainty that Dr. Blitzer expressed about the “possibility” of radiculopathy: see paragraph 29 of the decision. Citing Syed v. Security National Insurance Company, 2023 CanLII 26958 (ON LAT) (“Syed”), the respondent argues that—without objective testing—the applicant’s evidence supports, at most, a DRE II impairment for the lumbosacral spine. This lower category would drop the musculoskeletal system rating to 10%, and the applicant’s total WPI would fall below the 55% threshold.

28I accept the respondent’s position that the descriptions of DRE II and DRE III in the AMA Guides show there must be an “objective” basis for radiculopathy to grant the higher of the two categories—a conclusion shared by the adjudicator in Syed. I also accept the respondent’s observation that there are different kinds of objective testing referenced in this part of the AMA Guides, e.g., electrodiagnostic testing. However, I do not find the respondent has shown that a specific kind of objective evidence needs to exist for a DRE III rating to be met. While the AMA Guides require “significant signs of radiculopathy” for a DRE III rating, it does not specify what these “signs” must entail. Rather, there is a list of different testing methods that might help an assessor to find these “significant signs”. With these observations in mind, I find the respondent has not established an error regarding the panel’s acceptance of Dr. Blitzer’s DRE III rating.

29The panel addressed the reasons for accepting this rating at paragraphs 25 – 34, with a significant amount of this analysis dedicated to the lumbosacral segment of the spine. Briefly, the panel found Dr. Blitzer’s approach to the musculoskeletal system was more in line with the AMA Guides, and there was corroborating evidence to establish the existence of exacerbation of pre-accident radiculopathy, namely, the applicant’s post-accident functional limitations. These limitations included impacts on “his ability to perform his activities of daily living”, as well as impacts on his sleep and “desire to interact socially”: see paragraph 33 of the decision.

30The panel did not simply accept subjective complaints of radiculopathy as the basis for endorsing Dr. Blitzer’s DRE III rating. Other forms of evidence were assessed by the panel to corroborate this claim, and the respondent has not shown how this approach is erroneous. This approach is in line with the guidance provided by the AMA Guides. In sum, this ground for reconsideration is better understood as a disagreement over the panel’s findings.

31I also note that Syed shows the importance of individualized, evidentiary assessments when determining the appropriate WPI rating for the musculoskeletal system. While decision-makers must be guided by the AMA Guides, Syed also establishes the importance of ensuring these ratings are based on a detailed accounting of the medical evidence on hand.

32The respondent also contends that the panel incorrectly noted that it, along with its executive summary author, Dr. Bob Karabatsos, orthopaedic surgeon, accepted that the applicant had pre- and post-accident radiculopathy—a key aspect of finding the DRE III impairment. Even if I accepted this alleged error, I do not see how it would likely have had an impact on the outcome.

33To trigger Rule 18.2(b), a party must not only show that an error occurred, but that the error would likely have impacted the outcome. In this case, pre-accident radiculopathy was addressed as a potential barrier to the applicant’s case. Put another way, the panel had to account for the existence of pre-accident radiculopathy before they could conclude that the applicant had met his onus for this rating. Therefore, even if the panel found that the respondent did not accept the existence of pre-accident radiculopathy, the conclusion would have likely been the same, i.e., there is persuasive evidence of post-accident, functional limitations that support the existence of radiculopathy.

34Finally, I note that the respondent submits that neither of the parties’ assessors provided an evidentiary basis to find that radiculopathy was established in a pre-accident note from March 22, 2017. It also claims that the assessors did not testify that the accident exacerbated this alleged impairment. Once again, I find these arguments are attempts to have the Tribunal re-weigh evidence considered at first instance. The panel considered documentary evidence and oral testimony to reach their conclusions about the applicant’s radiculopathy—conclusions they explained with detailed reasons. The respondent has not established any legal or factual errors with this approach.

Rule 18.2(b) – Headaches

35Moving to the final ground for reconsideration, the respondent challenges the 17% WPI rating assigned to headaches. Calling this rating “unsupported by precedent”, the respondent claims there are several errors in the analysis, including the lack of referrals from family doctors to headache specialists, and the panel’s improper reliance on the report of Dr. Lance Majl, neurologist, to support Dr. Blitzer’s 17% rating. The respondent submits that the panel should have followed the reasoning in Paesano v. Coseco, 2023 CanLII 96371 (ON LAT) (“Paesano”), a case where the Tribunal rejected a different WPI rating for headaches from Dr. Blitzer.

36The panel provided their reasoning for accepting the 17% rating at paragraphs 35 – 40. This analysis included a detailed weighing of Dr. Blitzer’s report, as well as the competing report from Dr. Karabatsos. Not only did the panel assess the approaches used by these two assessors (including how they explained their approaches during the hearing), but they also reviewed the neurology reports that the assessors used to help support their ratings. Specifically, the panel assessed Dr. Blitzer’s reliance on Dr. Majl’s opinion, and they reviewed Dr. Karabatsos’ reliance on a report from Dr. Michael Angel.

37All these evidentiary findings are explained in detail. For instance, the panel addressed an argument about the reliability of Dr. Majl’s report at paragraph 40:

Regarding the respondent’s argument that Dr. Majl’s neurological report did not appear to be prepared in the context of CAT, we note that, although the report does not speak to CAT specifically, it provides an independent assessment of the applicant from a neurological perspective. It was also prepared within the timeframe of the other CAT assessments (July and August 2023). We find that Dr. Majl’s findings are of assistance in the analysis of a determination of CAT from a neurological perspective.

38The respondent may disagree with the approach adopted by the panel, including what it sees as an unprecedented WPI rating for headaches. However, I do not find the respondent has shown any factual or legal error in this section of the decision. The panel explored the evidence at length, and they provided comprehensive reasons to justify their conclusions.

39The respondent’s reliance on Paesano does not alter my findings. Aside from the fact that Tribunal decisions are not binding, WPI ratings are fact-specific. These assessments must be done in accordance with the framework set out in the AMA Guides, but they must also be responsive to an insured person’s individual impairments. Therefore, just because the Tribunal may have questioned the same assessor’s WPI rating in one matter does not mean their opinions must be seen with skepticism in all other applications. The facts of each individual case must be considered.

CONCLUSION & ORDER

40The respondent’s request for reconsideration is dismissed.

Craig Mazerolle

Vice-Chair