Licence Appeal Tribunal File Number: 24-003141/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:
Nika Gordan
Applicant
and
Certas Direct
Respondent
AMENDED DECISION
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Philip Pollack, Counsel
Lianne Sharvit, Counsel
For the Respondent:
Greg Abodago Abogado, Counsel
Christian Farahat, Counsel
Court Reporter:
Marcia Gardner
HEARD by Videoconference:
January 13, 14, 15, 16, 17, and 20, 2025
OVERVIEW
1Nika Gordan, the applicant, was involved in an automobile accident on October 17, 2020, 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, Certas Direct, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Has the applicant sustained a catastrophic impairment as defined by the Schedule?
Is the applicant entitled to an IRB in the amount of $400.00 per week from February 3, 2024 to date and ongoing?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
3Prior to closing submissions, the applicant withdrew issues 3, 4, 5, and 7 as indicated in the Case Conference Report and Order (“CCRO”) released on August 1, 2024. The balance of the issues remains in dispute.
RESULT
4For the reasons that follow, I find that:
the applicant is catastrophically impaired under Criterion 8;
the applicant is not entitled to an IRB; and
the respondent is not liable to pay an award.
5The application is granted in part.
PROCEDURAL ISSUES
Applicant’s request to rely on her late filed supplementary brief
6The applicant’s request to rely on her late filed supplementary brief is granted in part.
7The applicant requested permission to rely on her late filed supplementary brief, which was served and filed on January 9, 2025, pursuant to Rule 9.3 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). The applicant stated that some of the documents contained in the supplementary brief were received after the December 23, 2024 deadline while others were inadvertently not produced sooner. The applicant denied any prejudice to the respondent as her brief is not voluminous. The applicant argues that photographs of her injuries, property damage, a video of the scene of the accident, and her victim impact statement are relevant as they speak to the seriousness of the accident given that it was caused by a drunk driver. The applicant also indicated that these documents should not come as a surprise to the respondent as it was aware of the corresponding criminal proceeding and knew that a victim impact statement would be prepared in that proceeding. The applicant submits that in balancing the probative value of these documents against any prejudice to the respondent, she should be permitted to rely on the documents contained in her supplementary brief.
8The respondent opposed the applicant’s request to rely on Tabs 1-4 of the supplementary brief which contain photographs of the applicant’s injuries, property damage, a video of the scene of the accident, and the applicant’s victim impact statement pursuant to Rule 9.4.4 and Armstrong v. Intact Insurance Company, 2024 CanLII 121105 (ON LAT). The respondent argued that the fact that the supplementary brief is not voluminous does not diminish the prejudice that would flow from its admission. The respondent stated that it was not aware of the applicant’s victim impact statement until it was produced on January 9, 2025 and that allowing the applicant to rely on this document in the circumstances would amount to a trial by ambush. The respondent submitted that the victim impact statement is prejudicial and should be excluded. As for the photographs of the applicant’s injuries, property damage, and the video of the scene of the accident, the respondent submitted that these documents are not relevant to the issues in dispute as this hearing primarily deals with psychological impairments. Finally, the respondent consented to the applicant’s reliance on the documents contained at Tabs 5-14 which contain various Acknowledgement of Expert’s Duty forms and CVs of the applicant’s assessors.
9Pursuant to Rule 9.4.3 and the CCRO, the applicant was required to serve and file a PDF copy of the evidence that she intended to rely on at the hearing by no later than 21 days before the start of the hearing. As the hearing was scheduled to start on January 13, 2025, the 21-day deadline was December 23, 2024. As a result, the applicant’s supplementary brief is considered late filed.
10I partially granted the applicant’s request to rely on her late filed supplementary brief. With respect to the documents contained at Tabs 1-4, I denied the applicant’s request. I agreed with the respondent’s submissions, and I find that the prejudice to the respondent outweighs any probative value to these documents. With respect to the documents contained at Tabs 5-14, given the respondent’s consent, I granted the applicant’s request. With respect to the document contained at Tab 15, i.e., a left ankle MRI report from Mackenzie Health Hospital dated February 21, 2024, I denied the applicant’s request. Neither party made submissions regarding the inclusion or exclusion of this document. As such, I determined that the applicant could not rely on this document pursuant to Rule 9.4.4.
Applicant’s request to cross-examine Dr. Konstatine Zakzanis
11The applicant’s request to cross-examine Dr. Konstatine Zakzanis, psychologist and neuropsychologist, is granted.
12The applicant requested permission to cross-examine the respondent’s assessor, Dr. Zakzanis. Although Dr. Zakzanis did not provide an opinion for Criterion 8, the respondent’s other assessor, Dr. Velan Sivasubramanian, psychiatrist, relied on Dr. Zakzanis’ reports in his determination of Criterion 8. The applicant submitted that there are inconsistencies between the reports of Dr. Zakzanis and Dr. Sivasubramanian, and that she should be permitted to cross-examine these assessors on these inconsistencies. She argued that it would be procedurally unfair not to allow her to cross-examine Dr. Zakzanis. The applicant relied on Plante v. Economical Insurance Company, 2024 ONSC 7171, Ouderkirk v. BelairDirect Insurance Company, 2024 CanLII 108219 (ON LAT), and SPPA, s. 10.1.
13The respondent maintained that it no longer intended to call Dr. Zakzanis to testify at the hearing. The respondent indicated that Dr. Zakzanis prepared reports relating to Criterion 7 and the applicant’s entitlement to an IRB. Since the applicant is only proceeding on the issue of Criterion 8 and IRB, the respondent intended to solely rely on Dr. Zakzanis’ reports. The respondent also denied that they had an obligation to produce Dr. Zakzanis as a witness in the circumstances.
14I granted the applicant’s request to cross-examine Dr. Zakzanis. The relevant facts are as follows. In a letter dated December 23, 2024, the respondent advised that it intended to call various witnesses at the hearing, including Dr. Zakzanis and Dr. Sivasubramanian. In a letter dated December 23, 2024, the applicant advised the respondent that she intended to challenge the reports and viva voce testimony of the respondent’s assessors, including Dr. Zakzanis and Dr. Sivasubramanian, and indicated that the opinion of these assessors was being challenged on the grounds that they contain diagnoses and observations of the applicant’s impairments that are inaccurate, understated, and not substantiated by corroborating evidence. Based on the parties’ submissions, Dr. Sivasubramanian relied on Dr. Zakzanis’ reports, and there are inconsistencies between the reports prepared by these two assessors. On the eve of the hearing, on January 10, 2025, the respondent announced that it would not be calling Dr. Zakzanis to testify.
15While I found that the respondent was entitled to file Dr. Zakzanis’ report in lieu of calling him as a witness, I also found that the fact that the applicant put the respondent on notice that she wanted to cross-examine Dr. Zakzanis had to be considered. The applicant was entitled to rely on the respondent’s list of witnesses who might be called at the hearing as part of the respondent’s case, which included Dr. Zakzanis. Further, the Tribunal was required to adhere to the provisions of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) which provides that a party to a proceeding may, at an oral or electronic hearing, conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceedings (see: SPPA, s. 10.1(b)).
16In the circumstances, I found that the applicant was entitled to cross-examine Dr. Zakzanis pursuant to s. 10.1(b) of the SPPA. I also found that the facts in the present case were similar to those identified in the Divisional Court’s decision in Plante, which was a binding decision, and that based on Plante, it would be procedurally unfair to allow Dr. Zakzanis’ reports to be entered into evidence unchallenged. Therefore, I directed the respondent to make arrangements for Dr. Zakzanis to be cross-examined on January 20, 2025 at 9:30 am.
Applicant’s request to exclude the respondent’s authorities
17The applicant’s request to exclude the respondent’s authorities is granted.
18In its closing submissions, the respondent referenced various authorities, including: Kohl v. Intact Insurance, 2024 CanLII 92077 (ON LAT), Albanese v. BelairDirect, 2024 CanLII 61860 (ON LAT), S.P. v. Belair Direct Insurance Company, 2024 CanLII 70364 (ON LAT), Reynolds v. CUMIS General Insurance Company, 2022 CanLII 106434 (ON LAT), Kumar v. Aviva Insurance Company, 2023 CanLII 15063 (ON LAT), Fagundes v. Intact Insurance, 2023 CanLII 26941 (ON LAT), and Traders General Insurance Company v. Rumball, 2022 ONSC 7215.
19The applicant requested that the respondent’s authorities be excluded and asked the Tribunal not to consider these decisions. She stated that the respondent had not served and filed a book of authorities containing copies of these decisions at least 21 days prior to the start of the hearing, as required. The applicant argued that the inclusion of these decisions would be prejudicial as she did not have the opportunity to review and to respond to these decisions in her closing submissions, and she cannot at this stage present case law of her own that is supportive of her position.
20The respondent acknowledged that it had not produced a book of authorities in accordance with the CCRO and it simply stated that the decisions it referenced were all decided by the Tribunal.
21I granted the applicant’s request to exclude the respondent’s authorities. The respondent ought to have included these decisions in a book of authorities, served these on the applicant, and filed them with the Tribunal by no later than 21 days prior to the start of the hearing. It was the respondent’s obligation to comply with the CCRO, and it did not comply with the Tribunal’s order. The respondent ought to have requested relief from the timelines set out in the CCRO and obtained the Tribunal's permission to rely on the late-produced authorities before relying on them in its closing submissions (see also: Rules 9.3 and 9.4.4).
ANALYSIS
Catastrophic Impairment Determination
22I find that the applicant has demonstrated, on a balance of probabilities, that she is catastrophically impaired under Criterion 8 as a result of the October 17, 2020 accident.
23The test to determine whether the applicant is catastrophically impaired is a legal test and not a medical one. The criteria to establish a catastrophic impairment are found under s. 3.1(1) of the Schedule. In this case, the applicant claims that she is catastrophically impaired under Criterion 8, and she relies on an Application for Determination of Catastrophic Impairment (OCF-19) dated May 24, 2023 completed by Dr. Tajedin Getahun, orthopaedic surgeon.
24To qualify under Criterion 8, the applicant must prove that she suffers from an impairment due to a mental or behavioural disorder that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (“Guides”), results in a Class 4 impairment (marked impairment) in three or more areas of function that significantly impedes useful functioning or a Class 5 (extreme impairment) in one or more areas of function that precludes useful functioning. Physical impairments are not factored into the impairment level for a Criterion 8 catastrophic impairment.
25Further, Criterion 8 relies on the Guides which set out four functional domains: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, and pace; and (4) adaptation (deterioration or decompensation in work or work like settings). There are five levels of impairment within each domain: Class 1 (no impairment), Class 2 (mild impairment), Class 3 (moderate impairment), Class 4 (marked impairment), and Class 5 (extreme impairment).
26The applicant relies on multi-disciplinary assessment reports including an occupational therapy assessment report dated January 13, 2023 completed by Inna Rozenfeld, occupational therapist, and a psychiatric assessment report dated May 20, 2023 completed by Dr. Shahzad Shahmalak, psychiatrist. Dr. Shahmalak concluded that the applicant has a marked impairment in the domains of social functioning; concentration, persistence, and pace; and adaptation, and that she has a moderate impairment in the domain of activities of daily living.
27The respondent relies on multi-disciplinary assessment reports including two occupational therapy assessment reports (an in-home assessment, and a situational assessment) both completed by Vinita Tandon, occupational therapist, and a psychiatry assessment report completed by Dr. Sivasubramanian, all dated January 18, 2024. Dr. Sivasubramanian concluded that the applicant has a moderate impairment in the domains of activities of daily living; concentration, persistence, and pace; and adaptation, and that she has a mild impairment in the domain of social functioning.
a) Activities of Daily Living
28I find that the applicant suffers a moderate impairment in the domain of activities of daily living.
29The Guides specify that functioning in the activities of daily living domain includes self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitations in these activities should be related to the mental disorder. In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction. What is assessed is not the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
30The parties agree that the applicant suffers from a moderate impairment in the domain of activities of daily living. As such, there is no issue in dispute, and I find that the applicant suffers from a moderate impairment in the domain of activities of daily living.
b) Social Functioning
31I find that the applicant suffers from a marked impairment in the domain of social functioning.
32The 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, eviction, 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 of others, awareness of others’ sensitivities, and social maturity also need to be considered.
33It is undisputed that the applicant suffers from a mental and behavioural impairment because of the accident. Indeed, in his report, Dr. Shahmalak concluded that, because of the accident, the applicant suffers from somatic symptom disorder with predominant pain, specific phobia (situational type – vehicular), major depressive disorder (moderate), post-traumatic stress disorder, and generalized anxiety disorder. Similarly, in his report, Dr. Sivasubramanian concluded that, because of the accident, the applicant suffers from somatic symptom disorder with predominant pain, other specific trauma and stressor-related disorder (incorporating elements of post-traumatic stress disorder and specific phobia) with some degree of impairment but minimal avoidance, and adjustment disorder with anxious and depressed mood. However, Dr. Shahmalak and Dr. Sivasubramanian disagree in terms of the severity of the applicant’s anxiety and depressive symptoms.
34While the respondent suggests that Dr. Shahmalak’s diagnosis of major depressive disorder is an outlier, I do not agree. According to a psychological report dated November 7, 2020 completed by Dr. Eugene Hewchuk, psychologist, and Viktoria Talmatshov, psychotherapist, shortly after the accident, the applicant was diagnosed with major depressive disorder, mild, single episode, with anxious distress, and specific phobia, automobile fear. Correspondingly, when Dr. Shahmalak conducted his assessment, based on his clinical experience, the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria, and the information that was available to him at the time of his assessment, like Dr. Hewchuk, he found that the diagnostic criteria for a major depressive disorder had been met.
35Further, while the respondent argues that Dr. Sivasubramanian’s opinion should be preferred as his diagnosis of adjustment disorder with anxious and depressed mood is consistent with the diagnosis of the applicant’s treating psychiatrist, Dr. Zhila Fazeli, as indicated in an initial consultation report dated May 16, 2023, I do not agree. While I appreciate that Dr. Fazeli diagnosed the applicant with an adjustment disorder approximately a month following Dr. Shahmalak’s assessment, I find Dr. Shahmalak’s assessment to be more comprehensive than that of Dr. Fazeli in that his clinical interview was more detailed, and he conducted a thorough review of the applicant’s medical records. As such, I find that Dr. Shahmalak’s report depicts a clearer picture of the applicant’s mental and behavioural impairment, and I accept his opinion.
36I find that the evidence supports a finding that the applicant’s accident-related mental and behavioural impairments significantly impede useful functioning in social functioning. Based on the applicant’s testimony and the evidence of Dr. Shahmalak and Ms. Rozenfeld, prior to the accident, the applicant enjoyed engaging with her family and friends, she had strong and meaningful relationships with her mother, her brother, her sister-in-law, and her friends, she had an active social life, she was involved in a casual relationship, she was a caregiver for her mother, and she maintained two busy jobs. She was a young, healthy, and high functioning person. Similarly, Dr. Sivasubramanian and Ms. Tandon indicated that prior to the accident, the applicant went to the gym daily, she enjoyed outings with friends, going to the mall and movies, and travelling. She had a large circle of friends, and she went out with them regularly.
37Since the accident, the applicant’s capacity to interact appropriately and communicate effectively with other individuals, and her ability to get along with others has been affected. She avoids spending time with friends due to pain and low mood, she makes excuses not to go out, and when she does see her friends, it is because they come visit her on occasion. She has become isolated and withdrawn. She has intrusive thoughts. While she has a good relationship with her mother, she takes her anger out on her mother and is aggressive with her, even though her mother is now her caregiver. She rarely engages in social interactions, and her casual relationship has been impacted. While she continues to speak to her brother and sister-in-law, she does not initiate the calls, and she has not developed a meaningful relationship with her niece and nephew. She also has difficulty maintaining socially appropriate interactions, and she does not know what to say and how to start a conversation.
38Ms. Rozenfeld conducted a collateral interview with the applicant’s mother. The applicant’s mother described the applicant as completely different following the accident. She noted that the applicant’s personality had changed, that she becomes angry and aggressive towards her, that she yells at her a lot, that she has sudden mood swings, she is easily emotional, and she has many internal conflicts. She also avoids going out with her friends.
39Further, Ms. Rozenfeld noted in her report that the applicant’s depressed mood, reduced motivation for social interactions, and increased pain levels that limit her mobility all contribute to the deterioration in her ability to engage in meaningful social relationships. Similarly, Dr. Shahmalak noted in his report that the applicant’s mood was depressed, and she was very anxious. Further, there was evidence of impairment in affect regulation that would meaningfully affect her capacity to initiate and maintain a variety of social relationships.
40I find that the evidence does not support Dr. Sivasubramanian’s mild impairment rating. In his report, Dr. Sivasubramanian indicated that during the clinical interview, the applicant’s eye contact was good, her affect was broad ranging, reactive, and appropriate. She was able to smile, chuckle, and joke spontaneously. She had no trouble maintaining a conversation. He also indicated that she has good relationships with friends and family, and that she maintains regular contact with them. She resumed a relationship with her father following the accident, and she sees him every week.
41However, Dr. Sivasubramanian’s findings are inconsistent with the evidence before me. While he characterized the applicant’s relationship with her mother as good, he does not comment on the fact that the applicant now becomes aggressive and angry with her mother, resulting in fights. While he notes that the applicant resumed a relationship with her father following the accident, he does not comment on the fact that she resumed this relationship after experiencing what she described as a near death experience, and that she could not fathom her father seeing her next at her grave. While she maintains some contact with her brother and sister-in-law, they reside overseas, and she does not initiate communications with them. While she continued her casual relationship following the accident, her interactions with this person were significantly less frequent. While she attended her brother’s wedding, she testified that she did not participate in the pre-wedding activities, kept mostly to herself, cried, and left the wedding early. While she has contact with some of her friends, these interactions are initiated by them, and she has become significantly withdrawn and does not go out to the same extent as she used to.
42Additionally, while Dr. Sivasubramanian relies heavily on Ms. Tandon’s occupational therapy assessment reports, I find that Ms. Tandon’s reports are less comprehensive than Ms. Rozenfeld’s report. For example, while Ms. Tandon noted in her situational assessment that the store was observed to be busy and loud, and that the applicant stated, “the beeping is making me crazy”, she does not address how the applicant was affected by the noise despite evidence that the applicant suffers from phonophobia since the accident. Further, while Ms. Tandon noted that the applicant was observed to communicate with two employees at a Walmart in a polite manner, her report lacks particulars regarding the quality of these interactions. On cross-examination, Ms. Tandon testified that she could not recall the length of these interactions, simply that she observed the applicant interacting with an employee for directions to the vacuum section and with a cashier.
43Considering the above, I find that the applicant has met her onus of proving that she suffers from a marked impairment in the domain of social functioning.
c) Concentration, Persistence, and Pace
44I find that the applicant suffers from a marked impairment in the domain of concentration, persistence, and pace.
45The 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 or at work. In order to consider strength and weakness 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.
46I find that the evidence shows that the applicant’s accident-related mental and behavioural impairments significantly impede useful functioning in her concentration, persistence, and pace. As noted by Ms. Rozenfeld, prior to the accident, the applicant had no difficulty with cognition, memory, concentration, attention, or judgment and overall maintained a busy schedule.
47During her assessment, Ms. Rozenfeld noted that the applicant demonstrated ongoing difficulty with memory, attention, concentration, persistence, and motivation. She had difficulty with task initiation and plan development, and she did not have effective means of managing many of the activities presented to her as the assessment progressed. She became fatigued, frustrated, anxious, and experienced an exacerbation of her pain symptoms, even more so on the second day of testing. She also presented with an inability to focus for prolonged periods of time, plan, react, problem solve, pay attention to detail, complete tasks, multi-task, achieve goal-directed behaviour, and generally lacked the necessary compensatory strategies required to engage in day-to-day activities.
48Ms. Rozenfeld further noted that while she attempted most tasks, she demonstrated significant deficits with complex tasks requiring attention to detail, multiple steps, independent planning, problem solving, concentration, and organization of thought. She had difficulty completing the calendar tasks, and she experienced significant difficulty with the filing tasks, requiring cuing and assistance. Also, her ability to focus was greatly affected by her pain symptoms along with phonophobia and by her reduced tolerances for activity, along with fatigue and reduced motivation.
49Correspondingly, Dr. Shahmalak noted that the applicant had diminished attention, she forgets important events, and she cannot concentrate while watching TV. He concluded that the applicant’s poor emotional regulation would likely result in workplace conflict with co-workers or customers, amotivation, and/or avoidance/withdrawal. The applicant’s cognitive difficulties (impaired memory, concentration and attention, and impaired multi-tasking), and anergia would likely lead to poor decision-making, increased errors, and decreased task efficiency at her workplace. Further, the applicant has moderate stress intolerance, as stress, especially work-like stress, seems to cause either withdrawal and/or the worsening in her emotional symptoms.
50Moreover, I find that the evidence does not support Dr. Sivasubramanian’s moderate impairment rating. In his report, Dr. Sivasubramanian indicated that during his clinical interview with the applicant, there was no evidence of gross thought disorder, although she was somewhat inconsistent in her testimony at times. She had no word-finding difficulties. She drives independently. She maintains control of her medication and finance. Dr. Sivasubramanian also relies on the reports of Ms. Tandon and Dr. Zakzanis.
51However, Dr. Sivasubramanian’s findings are inconsistent with other evidence before me. While he claims that the applicant maintains control of her finances, Ms. Rozenfeld indicated that the applicant’s mother helps her manage her finances, and the applicant testified that she misses bill payments and has non-sufficient funds charges in her account. While he claims that the applicant maintains control of her medication, Ms. Tandon indicated that the applicant may miss a dose of her medication at times, and that the applicant stated “I’m not a pill person.” While he notes that the applicant was observed by Ms. Tandon to engage in cognitive and functional testing, there is no indication in his report that he considered the fact that the applicant did not acknowledge and/or attempt 40% of the tasks in her situational assessment with Ms. Tandon. Neither Dr. Sivasubramanian nor Ms. Tandon inquired as to why the applicant did not complete these tasks.
52Additionally, while Dr. Sivasubramanian suggests that the applicant did not demonstrate significant difficulties during her examination, Dr. Zakzanis indicated in his neurocognitive behavioural assessment report dated November 6, 2023 that the applicant was tangential and superfluous in her response at times during the assessment, that she took several short breaks to manage her anxiety and somatic symptoms, that she occasionally requested instruction repetition, and that her working memory issues were apparent. Moreover, Dr. Zakzanis found that, based on his objective psychometric examination, the applicant is functioning below his estimate of her premorbid intellectual and cognitive capabilities. Her cognition is primarily characterized by disturbed supervisory attentional processes that impede her information processing ability. Moreover, difficulties with planning and foresight – aspects of executive function – are variably compromised. Dr. Zakzanis also noted that his objective psychometric test findings are congruent with the applicant’s assertions along with what would be anticipated in terms of a neuropsychological outcome following an uncomplicated mild traumatic brain injury.
53Considering the above, I find that the applicant has met her onus of proving that she suffers from a marked impairment in the domain of concentration, persistence, and pace.
d) Adaptation
54I find that the applicant suffers from a marked impairment in the domain of adaptation.
55The 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, 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.
56I find that the evidence supports a finding that the applicant’s mental and behavioural impairments significantly impede useful functioning in adaptation. Prior to the accident, the applicant was a high functioning person. She was employed in two positions, one on a full-time basis and another on a part-time basis, she maintained an active social life, and she was a caregiver to her mother. Since the accident, the applicant has not returned to work, she is limited in her ability to get along with others, including her family and friends, and she has very limited interactions due to pain symptoms, fatigue, anxiety, feeling frustrated, low mood, low self-esteem, and reduced inner drive.
57In her report, Ms. Rozenfeld indicated that the applicant presents with multiple physical, cognitive, emotional, and psychosocial limitations that prevent her in engaging in most daily activities in a timely and effective manner. The applicant has been unable to participate fully and independently in grocery shopping, meal preparation, and housekeeping activities since the accident due to pain and fatigue associated with performing these tasks as well as reduced motivation. Her ability to complete and/or focus on a task for any length of time is greatly reduced and she requires frequent breaks from activity.
58In his report, Dr. Shahmalak noted that the applicant’s mental state was depressed. She was able to follow simple instructions, but she had some difficulties maintaining her attention. She had difficulty with memory retrieval when recalling past details and events. Dr. Shahmalak found that the applicant did not demonstrate the capacity to maintain work-appropriate engagement and emotional demeanour during the assessment, and there was evidence of impairment in social functioning that would interfere with her capacity to maintain work-like relationships with peers and supervisors.
59Moreover, I find that the evidence does not support Dr. Sivasubramanian’s moderate impairment rating. The respondent did not expressly address this domain in its closing submissions. Further, Dr. Sivasubramanian’s findings for this domain are similar to those indicated above under the concentration, persistence, and pace domain, the only difference being that he did not expressly rely on Dr. Zakzanis’ opinion in this domain, and he primarily relied on Ms. Tandon’s reports.
60Considering the above, I find that the applicant has met her onus of proving that she suffers from a marked impairment in the domain of adaptation.
61Based on the evidence, I find that the applicant has met her onus of proving that she suffers from a marked impairment in at least three functional domains. Accordingly, the applicant has established, on a balance of probabilities, that she sustained a catastrophic impairment under Criterion 8.
Income Replacement Benefit
62I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to an IRB in the amount of $400.00 per week from February 3, 2024 to date and ongoing.
63To receive payment for post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience. The applicant bears the burden of proving, on a balance of probabilities, that she meets the test and criteria.
64In terms of education, the applicant graduated from York University with a degree in social sciences. In terms of her training and experience, the applicant previously worked as a retail sales associate at Browns Shoes and occasionally as a French Tutor. At the time of the accident, the applicant was employed on a full-time basis as an executive assistant at Brian John Enterprises Ltd., and on a part-time basis as a logistics coordinator at Data on the Spot.
65The applicant did not return to work following the accident as she suffered from a substantial inability to perform the essential tasks of her pre-accident employment. She applied for and received an IRB until this benefit was terminated effective February 3, 2024. The applicant seeks entitlement to post-104-week IRB and submits that she is entitled to an IRB at the rate of $400.00 per week for the period of February 3, 2024 to date and ongoing.
66The applicant states that the test for entitlement to an IRB is a legal test, not a medical one, and that she is not required to arm herself with expert reports speaking to this test for entitlement. The applicant also submits that there is ample medical evidence to support her inability to work. Specifically, Dr. Shahmalak concluded that she suffers from a marked impairment due to her mental and behavioural impairment in the functional domain of adaptation and that she is unable to function at work. Further, while Dr. Sivasubramanian indicated in his report that the applicant does not meet the test for entitlement to post-104-week IRB, he also opined that the applicant is unable to work on a full-time basis.
67The applicant further submits that her physical impairments affect her ability to work and states that there is objective evidence of ongoing physical pain and treatment. She relies on the clinical notes and records of Dr. Hamid Nourhosseini, orthopaedic surgeon, and the clinical notes and records of Toronto Interventional Pain Clinic.
68In response, the respondent submits that the applicant’s claim for IRB should be dismissed on the basis that she has not met her onus of proving entitlement to this benefit. The respondent states that the applicant has not tendered any opinion evidence indicating that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience. The respondent also relies on the reports of its assessors including a transferable skills analysis and labour market survey completed by Taline Sethian, certified vocational evaluator, an orthopaedic surgeon assessment report completed by Dr. Ato Sekyi-Otu, orthopaedic surgeon, a neuropsychological assessment report completed by Dr. Zakzanis, and a psychiatry assessment report completed by Dr. Sivasubramanian, all dated January 18, 2024.
69The evidence does not support a finding that the applicant suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience. While the applicant directs me to Dr. Shahmalak’s report in support of her entitlement to an IRB, Dr. Shahmalak indicated in his report that adaptation is distinct from employability, which is determined by many factors, including physical and mental impairments, transferable skills, education, experience, job requirements, and labour market conditions. Further, Dr. Shahmalak did not provide an opinion in his report regarding whether the applicant suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.
70Although the applicant has directed me to the clinical notes and records of Dr. Nourhosseini and the Toronto Interventional Pain Clinic, these records primarily consist of progress notes, diagnostic imaging reports, and pain management follow up forms. Further, there is no indication in these records that the applicant suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.
71As such, I find that the only opinion evidence relating to the applicant’s eligibility to an IRB before me was tendered by the respondent, and the applicant has presented insufficient evidence to challenge the respondent’s evidence.
72The applicant has not tendered any opinion evidence to challenge Ms. Sethian’s findings that based on the applicant’s education, training, and experience, she is reasonably suited to engage in various occupations including general support worker (NOC 1411), customer services, information, and related clerks (NOC 6552), and receptionists and switchboard operators (NOC 1414). Further, she has not challenged Ms. Sethian’s labour market research which supports a finding that there is a moderate amount of job availability in the occupations suggested in the transferable skills analysis in the Toronto, Ontario region in which the applicant resides.
73The applicant has not tendered any opinion evidence to challenge Dr. Sekyi-Otu’s finding regarding the applicant’s entitlement to an IRB. From a physical perspective, Dr. Sekyi-Otu diagnosed the applicant with the following injuries as a result of the accident: left clavicle fracture, which has now healed; left shoulder strain; left ankle sprain; myofascial strain, cervical spine; myofascial strain, lumbar spine; myofascial strain, thoracic spine; left knee sprain; bilateral wrist sprain; and bilateral hip sprain. He concluded that the applicant did not suffer from a complete inability, as a result of the accident, to engage in any employment for which she is reasonably suited by education, training, and experience. He did not express an opinion regarding the applicant’s ability to perform the essential tasks of any and all occupations listed in the transferable skills analysis.
74The applicant has not tendered any opinion evidence to challenge Dr. Zakzanis’ finding regarding the applicant’s entitlement to an IRB. From a neurocognitive perspective, Dr. Zakzanis diagnosed the applicant with an uncomplicated mild traumatic brain injury as a result of the accident. He concluded that the applicant did not suffer from a complete inability to engage in any employment for which Ms. Sethian deemed the applicant to be reasonably suited by education, training, or experience. He did not express an opinion regarding the applicant’s ability to perform the essential tasks of any and all occupations listed in the transferable skills analysis.
75The applicant has not tendered any opinion evidence to challenge Dr. Sivasubramanian’s finding regarding the applicant’s entitlement to an IRB. Dr. Sivasubramanian concluded that the applicant did not suffer from a complete inability, as a result of the accident, to engage in any employment for which she is reasonably suited by education, training, or experience. While he believed that the applicant was suffering from mental impairments as a result of the accident, he found that these impairments were mild to moderate in severity, and that they were not completely occupationally impairing. Dr. Sivasubramanian also concluded that the applicant was able and qualified to perform the essential tasks of any and all of the occupations listed in the transferable skills analysis. However, Dr. Sivasubramanian also opined that he did not believe that in her current state that the applicant would be able to manage full-time employment, and that if the applicant’s psychiatric symptoms were to be under better control in the future, she may be able to return to full-time employment from a mental health perspective.
76While the applicant argues that little weight should be afforded to Dr. Sivasubramanian’s inconsistent findings, I find that even if I do not accept Dr. Sivasubramanian’s evidence regarding the applicant’s entitlement to an IRB, it remains that the applicant has not met her burden of proof regarding this benefit.
77Accordingly, I find that the applicant has not demonstrated that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience. Therefore, she is not entitled to an IRB.
Award
78The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
79At the commencement of the hearing, the respondent requested that the applicant’s award claim be dismissed. The respondent stated that pursuant to the CCRO, the applicant was ordered to provide particulars of her award claim by no later than September 27, 2024, which is 30 calendar days after it provided the adjuster’s log notes. The respondent advised that, to date, it has not received these particulars. The respondent submitted that it would be a breach of procedural fairness to allow the applicant to pursue her claim for an award and relied on Zhao v. Allstate Canada, 2021 CanLII 18931 (ON LAT) and Consagra v. Economical Insurance, 2023 CanLII 4444 (ON LAT).
80The applicant denied that she was in receipt of the adjuster’s log notes and explained that this was the reason why she did not provide particulars of her award claim. The applicant also advised that the parties had an understanding in writing that the respondent’s document brief would include all the documents that the parties intended to rely on at the hearing, and she noted that the respondent had not included a copy of the adjuster’s log notes in the respondent’s document brief.
81I granted the respondent’s request to dismiss the applicant’s award claim. I found that the particulars of the award were not produced in accordance with the document disclosure deadline as set out in the CCRO. While the applicant stated that she never received the adjuster’s log notes from the respondent, she did not direct me to evidence to support a finding that she took steps to obtain the adjuster’s log notes following the respondent’s alleged breach to ensure her own compliance with the CCRO. Further, at the time of the hearing, the applicant had not provided particulars of the award claim to the respondent. As such, I found that the applicant breached the CCRO, and that she had not sought the Tribunal’s permission to file the particulars of the award claim late pursuant to Rule 9.3. The consequence of not producing the particulars to the respondent is that the applicant cannot succeed with her claim for an award. It would be a breach of procedural fairness to the respondent to allow the applicant to proceed with the award claim without the particulars being produced in advance of the hearing.
ORDER
82For the reasons outlined above, I find that:
the applicant is catastrophically impaired under Criterion 8;
the applicant is not entitled to an IRB; and
the respondent is not liable to pay an award.
83The application is granted in part.
Released: May 8, 2025
Ludmilla Jarda
Adjudicator
