Citation: Vanstone-Neufeld v. Belair Insurance Company Inc., 2025 ONLAT 24-003172/AABS

Licence Appeal Tribunal File Number: 24-003172/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:

Norman Vanstone-Neufeld

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR:

John Mazzilli

APPEARANCES:

For the Applicant:

Nancy M McAuley, Counsel

For the Respondent:

Kevin Mitchell, Counsel

Court Reporter:

Prashanth Thambipillai

HEARD: by Videoconference:

February 24-28, March 3-5

OVERVIEW

1Norman Vanstone-Neufeld, (the “applicant”), was involved in an automobile accident on July 23, 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 Belair Insurance Company Inc. (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Has the applicant sustained a catastrophic impairment as defined by the Schedule under Criterion 8?

ii. Is the applicant entitled to an income replacement benefit (“IRB) in the amount of $400.00 per week from October 28, 2022, to date and ongoing?

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

3At the hearing, the parties confirmed that even though the Case Conference Report and Order identified the period in dispute for IRB entitlement as being from January 27, 2023, to date and ongoing, the correct period in dispute was from October 28, 2022, and ongoing. Accordingly, at this hearing, IRB entitlement was considered from October 28, 2022, to date and ongoing.

RESULT

4The applicant is not catastrophically impaired under Criterion 8 in accordance with the Schedule.

5The applicant is entitled to an IRB in the amount of $400.00 per week from October 28, 2022, and ongoing.

6As the IRB is payable, interest in accordance with s. 51 of the Schedule is also payable.

PROCEDURAL ISSUES

Applicant’s Motion to Exclude Some of the Respondent’s Reports

7During the hearing the applicant requested that I exclude certain expert reports tendered by the respondent. During cross-examination of some of the respondent’s witnesses, it was determined that the witnesses had draft reports, notes, and incomplete reports that were not disclosed to the applicant in accordance with the Case Conference Report and Order dated July 26, 2024. I allowed all the reports in question into evidence and advised the parties that I would inform them of the weight I assign to the reports in my decision. I heard formal submissions on the weight that should be given to the reports, and I will address the weight I assigned to this evidence in my analysis.

Kinesiologist Functional Abilities Evaluation (“FAE”)

8The applicant sought to exclude the FAE report of Mr. Morris, kinesiologist, because during his examination in chief and cross examination he referred to evidence from a draft report that had not been previously disclosed to the applicant. The applicant submitted that I ought to assign lesser weight to Mr. Morris’ FAE report in the interest of procedural fairness, because Mr. Morris testified that the report, he referenced in his testimony was an “older report”.

9The respondent argued that it was not aware of any draft reports as they had not been disclosed to respondent, therefore, it was unable to provide the applicant with the draft report in question. Further, the respondent argued that Mr. Morris testified that he truly and faithfully reported the findings of his assessment in his final report, which was disclosed to the applicant, and as such I should assign full weight to the FAE report.

10While I accept that Mr. Morris truly and faithfully reported his assessment findings from the FAE in his final report, it was obvious that there was a draft report and notes that had not been disclosed to the applicant or the respondent. I agree with the applicant that this was procedurally unfair to the applicant and therefore I assigned less weight to his FAE report.

Dr. Derry and Dr. Out’s Reports

11The testimony of Dr. Derry, the respondent’s catastrophic impairment assessor, revealed that he had referred to three of Dr. Out’s IRB reports. However, upon cross examination of Dr. Out, it was revealed that she only produced two reports for the respondent and that one of the reports was a “running report” until the final version of the report was completed.

12In the document review portion of Dr. Derry’s report, he quotes a passage from one of Dr. Out’s reports. The applicant argued that this report from Dr. Out had not been disclosed to the applicant prior to the hearing. The applicant argued that it would be procedurally unfair for me to rely on a report that had not been previously disclosed to the applicant in accordance with the Case Conference Report and Order. Further the applicant argued that he should not have to guess what evidence the respondent has and that I should place little to no weight on the reports of Dr. Derry and Dr. Out.

13The respondent argued that all documents and reports that it had received were disclosed to the applicant in accordance with the timelines set out in the Case Conference Report and Order. Further it argued that Dr. Out testified that she only produced two reports and there was no third report to disclose to the applicant.

14Further it argued that Dr. Out’s reports pertain to the IRB and not to the determination of catastrophic impairment, and that both Dr. Out and Dr. Derry testified that they truly and faithfully reported their assessment and findings and that I should assign full weight to their reports.

15I accept Dr. Out’s testimony that she only produced two reports and that both had been disclosed to the applicant in accordance with the Case Conference Report and Order. Further, Dr. Derry’s quoted passage in his document review from Dr. Out’s report is identical to that of the reports that had been disclosed to the applicant in accordance with the Case Conference Order and Report. Therefore, there is no prejudice to the applicant as the passage referenced and relied upon by Dr. Derry is identical to the language found in Dr. Out’s report previously disclosed to the applicant. Accordingly, I do not diminish any weight to the reports of Dr. Derry and Dr. Out.

Hearing Length

16At the out set of the hearing the applicant and the respondent presented a final witness list with 17 witnesses. Accordingly, I established a hearing schedule which included all 17 witness’ within the 8-day hearing. After completing the witness list the applicant requested formal submissions to lengthen the hearing by adding additional hearing days.

17The applicant submits that at the Case Conference the applicant requested that this hearing take place over the course of 20 hearing days as the applicant and the respondent’s witness list at that time included 25 witnesses. The applicant’s counsel further argues that it is procedurally unfair to her client to complete this hearing in the eight days allocated and that I should extend the hearing length by another six days.

18The respondent objects to the extension of the hearing by any number of days and accepts the number of days allocated by the case conference Adjudicator in this regard. The respondent further submits that the Licence Appeal Tribunal controls its own process.

19I agreed with the respondent and did not lengthen the hearing by any days. I see no procedural unfairness in proceeding with the number of hearing days set out in the Case Conference Report and Order. The parties had a reasonable expectation that the hearing would run for eight days. The applicant was unable to substantiate what, if any, prejudice would result from maintaining the hearing length ordered at the case management stage. During the eight-day hearing, none of the witnesses were limited by time and both parties were able to conduct a through examination in chief, cross-examination, and re-examination of all 17 witnesses. The hearing was completed on the 8th and final day allocated by the Tribunal.

ANALYSIS

Has the applicant sustained a catastrophic impairment under Criterion 8?

20I find that the applicant has not proven on a balance of probabilities that he is catastrophically impaired under Criterion 8 as a result of the accident.

21To determine whether an insured person is catastrophically impaired under Criterion 8, the Tribunal considers whether the accident caused a mental or behavioral disorder, the impact of the disorder to the person’s life, and the level of impairment, as described in section 3.1(1)8 of the Schedule. The applicant bears the onus to prove on a balance of probabilities that he is catastrophically impaired. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test, not a medical test: see Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571.

22Criterion 8 requires evidence of the insured person’s impairment levels due to a mental or behavioural disorder. Impairment levels are to be assessed in relation to four functional domains: (1) Activities of Daily Living (ADL); (2) Social Functioning (SF); (3) Concentration, Persistence and Pace (CPP); and (4) Adaptation (deterioration or decomposition in work or work like settings) (AD). To meet the Schedule’s threshold for a catastrophic impairment designation under Criterion 8, an individual must have three marked (class 4) impairments out of the four spheres of functioning or one extreme (class 5) impairment as a result of the accident due to a mental and behavioural disorder. These impairments are assessed under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (“Guides”). Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The spheres of functioning and the levels of impairment are outlined in the chart below:

Area or Aspect of Functioning	Class 1: No Impairment	Class 2: Mild Impairment	Class 3: Moderate Impairment	Class 4: Marked Impairment	Class 5: Extreme Impairment
Activities of Daily Living	No impairment is noted	Impairment levels are compatible with most useful functioning	Impairment levels are compatible with some, but not all useful functioning	Impairment levels significantly impede useful functioning	Impairment levels preclude useful functioning
Social Functioning
Concentration, Persistence and Pace
Adaptation (Deterioration in a work-like setting)

23In this case the parties both agree that the applicant has not sustained a marked impairment in the domain of activities of daily living. Their dispute arises over the remaining domains.

24The applicant submits that he has a class 3 marked impairment in the domains of social functioning, concentration, persistence, pace, and adaptation, as a result of the mental/behavioral disorders that he sustained in the motor vehicle accident.

25The respondent submits that the applicant has class 3 moderate impairments in social functioning and adaptation, and a class 2 mild impairment in concentration, persistence, and pace, caused by mental/behavioral disorders.

26As both parties agree that the applicant has sustained a class 3 moderate impairment in the domain of activities of daily living, my review of the evidence will focus on whether the applicant suffers from a marked impairment in the social function, concentration persistence and pace and adaptation domains. However, if the applicant is found to not have a marked impairment in two of the four domains, my analysis will not continue as the applicant would have failed in his onus to prove that he is catastrophically impaired under Criterion 8.

Mental or Behavioral Disorder

27The applicant relies on an OCF-19 dated June 7, 2023, completed by Dr. Meghji, psychiatrist, her catastrophic impairment report dated July 20, 2023, and a rebuttal report prepared by Dr. Brown, psychotherapist dated April 17, 2024. Further the applicant relies on a consolidated opinion report dated July 20, 2023, completed by Kelly Farrell, occupational therapist and Bianca Heaslip, speech language pathologist. Dr. Meghji in her report diagnosed the applicant with major depressive disorder, moderate, with anxious distress.

28The respondent relies on a catastrophic impairment report completed by Dr. Derry, psychologist, dated January 10, 2024, and an executive summary report dated January 10, 2024, completed by Dr. Levy, physician. The respondent further relies on the situational and in home occupational therapy reports completed by Matt Sutherland, occupational therapist, dated January 10, 2024. In his report Dr. Derry diagnosed the applicant with major depressive disorder with anxious distress but noted that it was mild.

29The reports of Dr. Meghji, Dr. Derry, Dr. Levy and the testimony of the assessors are sufficient for me to accept that as a result of the accident the applicant has sustained the mental disorder of major depressive disorder with anxious distress.

30It is also important to note that both Dr. Meghji and Dr. Derry did not diagnose the applicant with somatic symptom disorder because both assessors opined that the applicant did not meet the threshold of such a diagnosis. I will further consider the applicant’s physical pain in the IRB portion of my decision.

31Dr. Meghji as part of her assessment administered two tests to the applicant. The first is the Beck Depression Inventory (BDI) and the second test was the Beck Anxiety Inventory (BAI). I placed less weight on the report of Dr. Meghji because the applicant was not administered the above noted tests at the time of her assessment, but rather, the applicant returned them completed to Dr. Meghji some time following the virtual assessment. Further, Dr. Meghji testified that she did not know how or when the applicant completed the tests. However, in the assessment methodology section of her report she lists psychometric inventories as part of her methodology. For this reason, I placed less weight on the report of Dr. Meghji.

32I placed more weight on the reports of Dr. Derry because he testified that psychological testing was administered to obtain clinical information and information about effort and validity. Further, I note that Dr. Derry administered the tests to the applicant in person and verified that the applicant completed the testing on his own, as part of a three hour and thirty-four-minute in-person examination.

33For example, Dr. Derry’s testing consisted of the World Health Organization Disability Schedule 2.0, the Pain Patient Profile, the Rey 15-item Memory Test, and The Minnesota Multiphasic Personality Inventory-3 (MMPI-3). Dr. Derry testified that the MMPI-3 has particular value because this test has several validity scales of over reporting and exaggerating. I accepted Dr. Derry’s report as being more comprehensive because his assessment including testing that was performed by the applicant in the presence of Dr. Derry.

Pre-Existing Concussion

34The applicant suffered from a workplace concussion injury that occurred in January 2020. At the time of the workplace accident, the applicant was also attending a diesel mechanic apprenticeship through his employer. At the time of the motor vehicle accident the applicant was one course away from completing his apprenticeship as a diesel mechanic. The applicant submits that his workplace injury had primarily resolved and that if not for the accident he had been on course to fully recover from the workplace concussion. In June 2020 the applicant had begun a return-to-work program on modified duties which involved driving and delivering parts approximately three days a week for four hours per day.

35The applicant’s assessors opined that given the applicant’s age and the progress from his workplace concussion, he would have been able to return to full time work hours in September of 2020 if not for the motor vehicle accident.

36The respondent submits that the applicant’s symptomology from his workplace concussion had not fully resolved at the time of the motor vehicle accident, however it opines that the applicant had achieved a reasonable recovery from his concussion, but not a full recovery. The respondent did not argue causation during the hearing as many of the assessors agreed that the applicant’s symptomology of his workplace accident had primarily resolved.

37For the purposes of this decision, I accept that the applicant’s symptomology from his workplace concussion had primarily resolved at the time of the motor vehicle accident.

Social Functioning

38I find that the applicant does not have a class 4 marked impairment in the domain of social functioning.

39The Guides specify that social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords, or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Strengths in social functioning may be documented by an individual’s ability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities. Cooperative behaviour, consideration for others, awareness of others’ sensitivities, and social maturity also need to be considered.

40Dr. Meghji in her report submits that the applicant has a class 4 marked impairment in social functioning based on her clinical findings, consideration of the information obtained through the companion and physician assessments, collateral information, and review of relevant documentation. Dr. Meghji opines that “based on the OT and SLP assessments, it was evident that there is impairment in social functioning. Mr. Vanstone-Neufeld demonstrates impairment within his social functioning, within the areas of work (he is not able to work in any capacity) rehabilitation (communicating with treatment team, frequent cancelling of appointments) and leisure/social life (extended family and friends)”.

41The respondent argues that the applicant has a class 3 moderate impairment in social function because the applicant’s impairment levels are compatible with some but not all useful functioning. Dr. Derry in his report opines that strictly from a psychological point of view, the accident has not caused the applicant to have serious problems in getting along with others (e.g., friends, neighbours, store clerks, landlords, family members). The accident has not caused him to have impaired social functioning such as a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation or similar events or characteristics.

42The applicant testified that he currently resides in the basement apartment of his mother’s home, and that the upstairs is accessible from inside and outside of the apartment. He lives with his wife, who at the time of the accident was his girlfriend. The applicant testified that pre-accident he was an avid hunter and fisherman, he enjoyed working out at the gym, working on cars, and playing the guitar. He testified that he enjoyed time with friends and family and that as a family they would gather weekly for family dinners and that he enjoyed hanging out with his brother and sister.

43The applicant further testified that post-accident he is no longer able to hunt, do woodwork, play the guitar, work, and work on cars in his home garage because his pain is different every day and that he cannot plan on a good day because he doesn’t know what tomorrow would look like. He testified that he receives nerve block injections biweekly. The applicant further testified that he does not enjoy social gatherings as he once did because he feels that he does not have much to offer, and that he mainly isolates and spends hours downstairs or in his garage. Further he testified that he supervises his younger brother when doing oil changes in the garage and in yard/gardening work.

44I do not agree with Dr. Meghji’s assessment because the applicant’s testimony and the evidence does not suggest or point to the applicant being withdrawn or isolated to the degree of a class 4 marked impairment. The evidence establishes that the applicant can appropriately interact and get along with others which is consistent with impairment levels that are compatible with some but not all useful functioning.

45While I accept that the applicant is more irritable due to his physical, cognitive, and mental/behavioral impairments, the evidence does not show a history of altercations, evictions, firings, or a fear of strangers to suggest the applicant avoids interpersonal relationships to the degree that significantly impede useful functioning.

46For example, as previously discussed, the applicant at the time of the accident was dating his current wife. After the accident they moved in together, got engaged and subsequently got married in June of 2024. They both testified that they had a stag and doe with approximately forty people in attendance and a wedding with approximately fifty people in attendance on the property where they reside.

47In addition, the applicant and his wife occasionally will go out for dinner, they shop together, and they attended a friend’s wedding in Haliburton. They split the drive to Haliburton, which is approximately a four-hour drive, and stayed in a cottage while in Haliburton with the applicant’s mother and siblings. The applicant’s ability to carry on relationships with friends, family, attend local restaurants and even participate in a lengthy drive with family suggests that the applicant’s impairment levels are compatible with some, but not all useful functioning.

48Further, the applicant testified that he maintains a good relationship with his childhood friends, Nick, Erin, and Sam. Although they do not see each other as often as they once did, they do communicate by phone or text. This is corroborated by the applicant’s wife who testified that usually friends will call them and sometimes, he gets together with them. This is not indicative of a class 4 marked impairment, because the applicant has maintained long term relationships with friends which suggests the applicant’s social function is compatible with some but not all useful functioning. Further, this is suggestive that the applicant maintains co-operative behavior and has the social maturity to stay in touch with friends.

49While I accept that the applicant may not be able to hunt or work due to his physical, cognitive and emotional symptoms, and he may not enjoy socializing as much as he once did because he feels that he does not have much to offer to a conversation, I do not accept that his limitations are indicative of a class 4 marked impairment because the evidence shows that he is able to participate socially and in the community and that he continues to have a good relationship with his wife, mother, siblings, friends and his paternal father. For these reasons, the applicant’s impairment levels are compatible with some but not all useful functioning.

50This is further supported by the applicant’s wife’s testimony as she testified that their relationship is good and strong. Additionally, the applicant testified that he speaks to his mother almost every day either in person or by text and that he speaks with his brother and sister not everyday but a lot and that they enjoy a good relationship. The continuation of long-term relationships with family and friends shows that the applicant’s useful function in the domain of social functioning has not been significantly impeded as a result of the accident.

51In addition, the applicant’s occupational therapy notes from Kelly Farrell show that regarding social relationships, the applicant “stated that he has maintained all his friendships, however, he sees his friends less often, mostly once per month or less and they are no longer able to do the things he previously did with them (i.e. hunting, fishing, etc.) He is still very close with his mother, siblings, and girlfriend. During family gatherings, his girlfriend indicated that he will distance himself”. While I accept that the applicant’s social interactions may not be the same as they once were, he is able to maintain friendships and derives pleasure from these relationships which is not indicative of class 4 marked impairment that significantly impedes his useful function because his social interactions are compatible with some but not all useful function.

52In addition to the applicant’s testimony, both the applicant’s and the respondent’s occupational therapists conducted situational assessments with the applicant at a local Walmart store. Both occupational therapists testified that the applicant was personable and laughed appropriately while conducting their respective assessments. In her report Kelly Farrell noted that the applicant was pleasant and co-operative and made eye contact when communicating. He was personable and smiled/laughed appropriately over the course of a two-day assessment, although after the second day she noted that she observed the applicant to be fatigued following the grocery store and baking task.

53Mr. Sutherland testified that the applicant was polite and cooperative with the check out person at the Walmart and that the applicant asked a store employee where to find an item he could not find. Ms. Farrell testified that the applicant did well in the community and that he was able to purchase the number of items assigned within the monetary limits assigned. Further, both assessors commented in their reports that the applicant provided appropriate directions throughout the trip without prompting, as the applicant chose to be a passenger rather than a driver for both situational assessments.

54Mr. Sutherland and Kelly Farrell were at the time of their assessment’s complete strangers to the applicant and both assessors commented on the applicant as being personable and smiling/laughing appropriately during the assessments. This shows that the applicant can initiate social contact with others, communicate clearly with others, interact actively and is further suggestive of co-operative behavior on the applicant’s part. This is not indicative of a class 4 marked impairment because the applicant has demonstrated that he does interact appropriately with strangers and within the community without significant impediment.

55Further, the surveillance evidence shows that the applicant can access the community. The surveillance evidence revealed the applicant driving to a local plaza with his wife to run some errands, to a service office, a Canadian Tire and to a Walmart. While in the Canadian Tire the applicant was looking at fishing rods, while he was on his own without his wife by his side. The applicant testified that the fishing rod was not for him but rather it was a gift for his brother’s birthday. While I accept that the surveillance evidence is a small snapshot in time, it does reinforce that the applicant is not socially isolated to a degree that would significantly impede his useful functioning.

56From the evidence before me, the applicant can interact appropriately and communicate effectively. He has shown that he has the ability not only to maintain but even strengthen relationships as is evidenced by the strengthening of his relationship with his girlfriend at the time of the accident, then fiancé and now his wife. Further, the applicant does have a strong family and friend network, and the evidence shows that he does engage appropriately in the community. As such I find that the applicant does not have a class 4 or class 5 impairment in the domain of social functioning.

57Having found that the applicant does not have a class 4 marked impairment in at least two of four domains, and that the applicant does not assert that he has a class 5 impairment, the applicant has not established that he is catastrophically impaired under Criterion 8.

Is the applicant entitled to a post-104 IRB from October 28, 2022, to date and ongoing?

58I find that the applicant is entitled to a post-104 IRB in the amount of $400 per week from October 28, 2022, and ongoing.

59To 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.

60The applicant submits that as a result of the accident 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. He submits that he suffers from ongoing headaches, pain in his neck back and shoulder, dizziness, vomiting, depression, anxiety, cognitive and visual impairments as a result of the accident.

61The applicant relies on the reports and testimony of Dr. Biederman, psychologist, Dr. Sequeira, physiatrist, and the CNR’s from Dr. Koyenikan, family physician, the CNR’s of Dr. Khamis, optometrist, and the CNR’s of Dr. Muhsin, interventional pain physician. Further the applicant submits that the approval of his long-term disability (“LTD “) and Canada Pension Plan (“CPP”) are supportive of his complete inability to engage in any employment for which he is reasonable suited by education, training, or experience.

62The respondent argues that the applicant does not suffer a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience and as such terminated the applicant’s post-104 IRB on October 28, 2022. The respondent relies on a multidisciplinary report dated January 20, 2023, completed by Dr. Mustafa, neurologist, Dr. Out, psychologist, Dr. Sandhu, internist, Dr. Morris, optometrist, David Morris, Kinesiologist and a vocational report and a labour market survey report completed by Kelly-Ann Smith dated January 20, 2023.

63For the purposes of this decision, I placed little weight to the evidence of David Morris because during his testimony Mr. Morris was referencing his FAE draft report which was not disclosed to the applicant in accordance with the Case Conference Report and Order.

64The applicant testified that prior to the motor vehicle accident he was on a return-to-work program from a concussion he sustained while at work and that his prognosis was for a full recovery. However, he testified that at the time of the motor vehicle accident his recovery was approximately seventy percent. He testified that he worked at a diesel mechanic shop and that he required one more course to complete his apprenticeship to become a diesel mechanic, a job that requires physical lifting, mobility, and cognitive function.

65I find on a balance of probabilities that the evidence shows that the applicant’s physical, psychological, cognitive, and visual impairments as a result of the accident have rendered the applicant to suffer a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience.

66In their reports Dr. Mustafa, Dr. Sandhu, Dr. Morris, and Dr. Out all opined that from their area of medical expertise, the applicant does not suffer from a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience. However, both the applicant’s and respondent’s optometrists agree that the applicant has sustained post-concussion vision syndrome, which causes the applicant to struggle with visual information processing and remembering the information he has read.

67Further Dr. Khamis opines that the applicant’s post-concussion vision syndrome accounts for his balance issues, headaches, blurry vision and near work asthenopia. Dr. Out testified that the applicant requires further psychological treatment. The evidence shows that the combination of the applicant’s physical and psychological sequalae from the accident have caused him to suffer a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience.

68Dr. Morris opined that the applicant would require extensive accommodations such as job pacing, however the accommodations required are not insurmountable. Dr. Mustafa testified that given the applicant’s exacerbation of headaches he should be treated by a neurologist. Further, most of the assessors when considering the multitude of the applicant’s physical and mental/ behavioral impairments and the passage of time since the applicant had last worked, testified that it would be a barrier to his performance.

69While I am not bound by the applicant’s approval from CPP or LTD, I am in this case persuaded by the applicant’s CPP approval as CPP’s consideration for approval considers the severity and duration of disability in preventing a person from working at any job.

70According to CPP, the legal test for disability is one of medical impairment and employability that according to CPP focuses on whether the severity and prolonged duration of disability prevents the person from working at any job.

71Further CPP defines “severe” as a person that has a mental and or physical disability that regularly stops them from doing any type of substantially gainful work, and “prolonged” means that the disability is long-term and of indefinite duration or is likely to result in death.

72As part of the applicant’s CPP application the applicant relied on his family physician, Dr. Koyenikan. Dr. Koyenikan listed the applicant’s medical conditions, impairments, and functional limitations as post concussive syndrome, major depression-recurrent, chronic pain, and degenerative disc disease of the lumbar spine with radiculopathy.

73Further Dr. Koyenikan lists some of the applicant’s functional limitations as being unable to lift, carry anything heavy, fatigue, headaches, unable to squat and bend without difficulty, difficulty maintaining focus on a work task and in meeting deadlines. The combination of the applicant’s physical and mental/behavioral impairments are well documented and when considering the impairments as a whole I find on a balance of probabilities that the applicant does suffer from a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience.

74The applicant had one course remaining to become a diesel mechanic, and in the approximately five years since the accident he has not been able to complete this course. His inability to complete the one course needed to be licenced as a diesel mechanic in five years, indicates to me that the applicant would have difficulty in retraining for employment.

75While I note the respondent’s vocational assessment and labour market survey which found that the applicant would be able to be employed in a few identified jobs, I do not believe on a balance of probabilities that he would be able to maintain such employment based on the evidence before me.

76I find that the applicant would not be able to maintain a schedule or find a sympathetic employer to accommodate his needs as the evidence shows that he has good days and bad days and often recovery time for the applicant to become symptom free varies. This is further supported by the evidence which shows that the applicant cancelled/rescheduled various assessments due to sequalae from the accident such as fatigue, physical pain, headaches, depression, and cognitive limitations.

77Finally, I agree with Dr. Sequeira’s assessment and testimony that accounting for the applicant’s experience, education and training, the applicant’s ability to return to any future work is poor because in general, when individuals are out the workforce for two years or longer, the likelihood for a successful return to competitive and sustainable work is near nil.

78I find on a balance of probabilities that as a result of the accident the applicant suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

79Accordingly, I find that the applicant is entitled to a post-104 IRB from October 28,2022 to date and ongoing.

Interest

80Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the IRB is payable, interest is to be calculated in accordance with s. 51.

ORDER

81It is ordered that:

i. The applicant is not catastrophically impaired under Criterion 8 in accordance with the Schedule.

ii. The applicant is entitled to $400.00 per week for a post-104 IRB from October 28, 2022, and ongoing.

iii. Interest is payable on all overdue payments of benefits in accordance with s. 51 of the Schedule.