Citation: Wheatle v. Certas Home and Auto Insurance Company, 2025 ONLAT 24-009441/AABS

Licence Appeal Tribunal File Number: 24-009441/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:

Amanda Wheatle

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Timothy Porter

APPEARANCES:

For the Applicant:

Jamie Fox, Counsel Faisal Afridi, Counsel

For the Respondent:

Andrea R. Lim, Counsel

HEARD: by Videoconference:

March 24 - 27, 2025

OVERVIEW

1Amanda Wheatle, the applicant, was involved in an automobile accident on January 9, 2021, 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 Home and Auto Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issue in dispute is:

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

3Issues 2, 3, and 4 from the case conference report and order (“CCRO”) dated November 14, 2024, were withdrawn by the applicant at the beginning of the hearing.

RESULT

4For the reasons that follow I find, on a balance of probabilities, that the applicant has sustained a catastrophic impairment, as a direct result of the subject accident, as defined by the Schedule.

PROCEDURAL ISSUES

5The respondent brought a motion seeking to extend the timelines for exchange of Addendum or Responsive Items, identified in the CCRO of November 14, 2024. The respondent requested that the timelines be extended to accommodate the service and filing of the respondent’s evidence:

i. s. 44 Physiatry Addendum Report of Dr. Soric dated February 10, 2025,

ii. s. 44 Physiatry Addendum Report of Dr. Marchuk dated February 19, 2025,

iii. s. 44 Neurology Addendum Report of Dr. Dost dated February 19, 2025.

iv. the s. 44 occupational therapist addendum report by Ms. Vinita Tandon, OT of March 11, 2025

6The respondent also brought a motion seeking to exclude the late filed evidence of the applicant, the complete Supplementary Book of Documents tabbed 1 to 6 (pages 1-1423), containing accident benefits files and medical documentation, exchanged and submitted March 3, 2025

7The respondent is opposed to the admission of the applicant’s late filed materials and the applicant is opposed to the admission of the respondent’s late filed materials. Both parties concur that the alternative is to exclude any late filed materials from both parties.

8The respondent submits that delays in receiving productions from the applicant and the applicant’s consent to conduct an OT paper review were the cause of delays in obtaining and exchanging its late and responding items. The applicant submits that there were undo delays in the scheduling and undertaking of the assessments which was the respondent’s obligation.

9In the CCRO, the parties were ordered to exchange, no later than 60 days from the case conference date, being January 13, 2025, all other documents and things not previously exchanged that they intend to rely on as evidence at the hearing. In addition, the CCRO stated that by no later than 90 days following, being February 12, 2025, the parties shall exchange any additional documents or things responsive to documents or things that have already been exchanged or produced that they intend to rely on as evidence at the hearing. The following is a list of documents being disputed with the associated date on which it was exchanged:

i. s. 44 Physiatry Addendum Report of Dr. Soric dated February 10, 2025, was served February 13, 2025.

ii. s. 44 Physiatry Addendum Report of Dr. Marchuk dated February 19, 2025, and shared with the applicant February 21, 2025.

iii. s. 44 Neurology Addendum Report of Dr. Dost dated February 19, 2025, shared with the applicant on February 21, 2025.

iv. the s. 44 occupational therapist addendum report by Ms. Vinita Tandon, OT of March 11, 2025, delivered to the applicant on March 12, 2025.

v. The Supplementary Joint Book of Documents, tabbed 1 to 6 (pages 1-1423), containing accident benefits files and medical documentation, exchanged and submitted March 3, 2025

10Rule 9.3 sets out the factors to consider when making a determination as to whether the documents in question may be entered into the hearing, including the reasons for non-compliance, the potential for prejudice, the degree to which the information contained in the evidence is within the knowledge of the other party, the position of the responding party and the relevance of the evidence to the dispute.

11There is a non-trivial number of documents that have been exchanged outside of the timelines agreed in the CCRO. I find the reasons for non-compliance range from no reason to awaiting a release that may not have been requested. However, as long as all late-filed evidence is treated similarly, I see no prejudice to either party. I find the information contained within the late-filed documentation by both parties is largely within their knowledge, for example: the opinions contained within the s. 44 reports are repetitious with other materials filed within the timelines and largely state that the professional opinion had not changed from the original findings; and the applicant’s late submissions found in the Supplementary Joint Document Brief of March 3, 2025, are not directly relevant to the issue in dispute. The applicant opposes the respondent’s motion, and both agree, in submissions, that in the alternative, none of the late filed documents should be admitted.

12I agree with the parties, none of the late filed materials will be admitted as evidence in the hearing. The materials are late filed, outside the timelines agreed to at the case conference and there are no substantive reasons for the materials to have been late filed. As the parties are also in agreement that none of the late filed materials be admitted, there would be no prejudice to either party.

ANALYSIS

The applicant has sustained a catastrophic impairment

13For the reasons that follow I find, on a balance of probabilities, that the applicant has sustained a catastrophic impairment, as a direct result of the subject accident, as defined by the Schedule.

14Catastrophic impairment is a legal definition and not a medical test, although the legal test involves consideration of medical evidence. The applicant is proceeding under s. 3(1)(8) of the Schedule, or Criterion 8, and in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”). This section of the Schedule explores mental and behavioural impairments that are rated according to how seriously they affect a person’s useful daily functioning; physical impairments have no bearing within these ratings. Chapter 14 of the Guides sets out the four spheres of functioning and the classification of impairments as represented 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 (“ADLs”)	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 (“CPP”)
Adaptation (In a work-like setting)

15The applicant has the burden of proving on a balance of probabilities that they are catastrophically impaired, under criterion 8, as a result of the accident. Given that the accident occurred on January 9, 2021, a catastrophic impairment under criterion 8 requires at least three of the four spheres of functioning to be a Class 4 (marked) impairment or for one sphere to be a Class 5 (extreme) impairment.

16The applicant submits that she has suffered class 4 marked impairments in each of the four spheres of function, as a direct result of the subject accident. The applicant relies on the catastrophic determination report by Dr. Shahzad Shahmalak, psychiatrist, the companion occupational therapy (“OT”) assessment report by Ms. Shahla Kara, occupational therapist, the testimony and clinical notes and records (“CNR’s”) of Dr. Thomas Fung, family physician and the testimony of the applicant and her spouse. The applicant submits she is functionally impaired with chronic pain syndrome, post-traumatic stress disorder, headaches, anxiety and depression.

17The respondent submits that the applicant suffered serious but not catastrophic injuries to her functional spheres in the subject accident and that some of her complaints relate to previously existing mental health concerns. It relies on the s. 44 assessments by Dr. Joel Eisen, psychiatrist, and the OT report by Ms. Vinita Tandon, occupational therapist.

18The applicant underwent a catastrophic impairment determination multidisciplinary assessment by Dr. Shahmalak and Ms. Kara, OT. Dr. Shahmalak assessed the applicant through a virtual meeting on October 31, 2024, for 75 minutes; and Ms. Kara saw the applicant on October 9 and 10, 2024. Dr. Shahmalak diagnosed the applicant with major depressive disorder: severe, somatic symptom disorder: pain moderate to severe, specific phobia: vehicular, and post-traumatic stress disorder. The conclusion by Dr. Shahmalak, on the aspects of functioning, provided the following ratings of the applicant in the four spheres of function:

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				Marked Impairment
Social Functioning				Marked Impairment
Concentration, Persistence and Pace				Marked Impairment
Adaption (In a work-like setting)				Marked Impairment

19I give substantial weight to Dr. Shahmalak’s report because he explains the analysis underpinning his ratings by drawing on his mental status exam, Ms. Kara’s OT report, and the documentation review in each section of his review of the four spheres to paint a comprehensive picture of the applicant and her functional impairments. In addition, Dr. Shahmalak utilizes psychometric testing which adds additional objective data points over and above the mental status examination, which I find to be probative of the applicant’s impairments.

20The applicant also underwent a catastrophic impairment determination multi-disciplinary assessment by Dr. Eisen and Ms. Tandon at the request of the respondent. Dr. Eisen saw the applicant in person on February 16, 2024, for 60 minutes and Ms. Tandon assessed the applicant on January 20 and 30, 2024. Dr. Eisen diagnosed the applicant with Somatic Symptom Disorder: with pain and cognitive complaints which he opines likely preceded the subject accident; as well as adjustment disorder and specific phobia: driving. The conclusion by Dr. Eisen, on the aspects of functioning, provided the following ratings of the applicant in the four spheres of function:

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			Moderate Impairment
Social Functioning			Moderate Impairment
Concentration, Persistence and Pace			Moderate Impairment
Adaption (In a work-like setting)			Moderate Impairment

21I assign Dr. Eisen’s report and testimony less weight because he does not draw on his mental status exam or the documentation review in his analysis of the four spheres of function to demonstrate the underpinnings of his ratings.

The applicant has a marked impairment in the sphere of ADLs

22According to the Guides, activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities 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 simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

23For the reasons that follow I find that, on a balance of probabilities, the applicant suffers from a Class 4 Marked Impairment of her ADLs.

24I am persuaded by the findings of Dr. Shahmalak because he clearly explained the manifestation of the applicant’s symptoms and the impact of those symptoms on function. For example, Dr. Shahmalak opines that there is a link between the applicant’s physical (chronic pain syndrome, headaches) and emotional symptoms (anxiety, and depression) which contributes to the physical symptoms, which results in functional limitations not explained by physical assessment. Dr. Shahmalak goes further and opines that the applicant is in a physical symptoms-anxiety-depression cycle and points to physical limitations in housekeeping, personal hygiene, and hair care in particular as examples of the cycle in action. Dr. Shahmalak opines that the applicant suffers from amotivation and notes a lack of independence in ADL activities, highlighting that some tasks are able to be completed on good days but often the attempt is rudimentary which suggests to me, on a balance of probabilities, a lack of effectiveness.

25Prior to the subject accident the applicant was the primary caregiver and took pride in “maternal” tasks with her two children, with a third on the way. The evidence from Ms. Kara’s report of January 9, 2021, outlines that the applicant now has four children and has been dismayed by her lack of ability to support and nurture her children in the way she had prior to the accident. In particular, the applicant is concerned that she has missed supporting her eldest daughter through important developmental milestones and cannot engage in a culturally significant hair care routine with her daughter due to physical symptoms. The applicant is also reliant on family members, friends, and paid support for caregiving: from getting children ready in the morning to after school care to engagement in the children’s activities. Of significance, while the family is financially strained the youngest two children remain in afterschool care as the applicant feels incapable of managing the children on her own. The applicant’s reporting to Ms. Kara is corroborated by the applicant’s spouse. For example, he expressed concern about the applicant’s ability to manage her son’s high energy in a public area to Ms. Kara when it was suggested that the applicant undertake an outing to Tim Horton’s with her youngest son. The applicant’s spouse’s concerns were only allayed when it was determined that the eldest son would support the applicant on the outing. Based on the evidence before me I am persuaded that the applicant’s caregiving capacity has been negatively impacted by the subject accident.

26I find Dr. Eisen’s report less persuasive for the reasons set out above, and because following the recitation of the ADLs the applicant cannot accomplish, Dr. Eisen opines that “[i]t is important to note that at least some of the impairment existed prior to the subject accident”. I find that this is not supported by the facts as outlined by Dr. Fung’s testimony. Dr. Fung submitted that the clinical note on which Dr. Eisen had based his conclusion that the applicant was suffering from post-concussive symptoms in the year prior to the subject accident was outdated and ceased being relevant in May of 2018. Further, a prescription for physiotherapy and chiropractic services delivered days prior to the accident was not related to any acute concerns but was for ongoing use of employee benefits, an annual practice by the applicant. Taken together these weaknesses in Dr. Eisen’s report and approach cause me to see his opinion on ADLs as less persuasive.

27I find the applicant to be a credible witness. The applicant testified that she has difficulty with initiating sleep, has multiple nightly awakenings due to pain and/or nightmares and is no longer interested in being intimate with her spouse, while at the same time lamenting the affect this is having on their relationship. The applicant’s spouse corroborated this testimony, highlighting that pre-accident the applicant had a special talent for falling asleep whereas that is no longer the case and on intimacy he reported that pre-accident they were ‘grooving’ with a third kid on the way, whereas now they are not even kissing.

28In sum, I find on a balance of probabilities, for the reasons set out above, the applicant has suffered a marked impairment in the sphere of ADLs.

The applicant has a marked impairment in the sphere of social functioning

29The Guides specify an individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others such as family members, friends, neighbours, grocery clerks, lenders, etc. 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 and interact and actively participate in group activities, consideration for others, awareness of others’ sensitivities and social maturity.

30I find that the applicant, on a balance of probabilities, has suffered a marked impairment of her social functioning as a result of the subject accident.

31The applicant demonstrates a marked retreat from the community. Dr. Shahmalak’s report indicates that the applicant’s social life is no longer vibrant. The applicant reported a consistently vital social life pre-accident with regular outings to the gym, and out with girlfriends dancing and to brunch. Going further, Dr. Shahmalak points to the applicant being highly engaged in her community, attending church regularly and undertaking many community volunteerism initiatives. Following the subject accident the applicant now only maintains contact with one friend who sometimes visits the applicant in her home. Dr. Shahmalak has concluded that the applicant suffered a class 4 marked impairment of her social function.

32The applicant is regularly tearful, depressed and experiences emotional dysregulation with family, friends, and community members. These observations have been made by Dr. Shahmalak, Ms. Kara and Dr. Eisen. Dr. Shahmalak also highlighted that the applicant struggled in her interactions with him, being unclear in her communication, due to difficulties with emotional regulation.

33A great deal was made of the “Mexico trip” in which the respondent suggested that travel is a demanding cognitive and physical exercise. Dr. Eisen comments on the trip in his report, specifically stating that the applicant had a relaxing time on the beach. This is in direct contrast with the testimony of the applicant and her spouse which set out that the trip had been a mistake with the applicant spending the vast majority of time in the room after having been transported through the airports in a wheelchair. I do not find the fact that the applicant could travel means that she does not have a marked impairment because the report by Dr. Shahmalak relates that the trip was a “mistake,” because the applicant was ferried through the airport in a wheelchair and spent the majority of her time in the room because of amplified physical and emotional symptoms, making it to the beach once.

34In this context, I again find Dr. Eisen’s opinion less persuasive because while Dr. Eisen notes that the applicant is no longer attending church, he does not mention the community activities that the applicant is no longer attending. He does not provide analysis or follow-up questioning regarding the applicant’s work in the community or with regard to church attendance and therefore I find that these important facts were largely not considered or have been dismissed by Dr. Eisen in his assessment. Instead, Dr. Eisen chose to highlight that the applicant has a good and cooperative relationship with her physicians and was pleasant, friendly, and cooperative with him. For these reasons I find Dr. Eisen’s rating less persuasive.

35For the reasons set out above, I find that the applicant, on a balance of probabilities, has suffered a marked impairment of her social functioning as a result of the subject accident.

The applicant has a marked impairment in the sphere of CPP

36Concentration, persistence, and pace is needed to perform many activities of daily living, including task completion. Task completion refers to the ability to sustain focussed attention long enough to permit the timely completion of tasks commonly found in activities of daily living or a work setting. Strengths and weaknesses in mental concentration may be described in terms of frequency of errors, the time it takes to complete the task and the extent to which assistance is required to complete the task.

37For the reasons that follow I find, on a balance of probabilities, that the applicant suffered a Class 4 Marked Impairment, in the sphere of CPP, as a result of the subject accident.

38I agree with Dr. Shahmalak’s finding that the applicant suffers a marked impairment of her CPP sphere. Dr. Shahmalak opines that the applicant’s poor emotional regulation would likely result in workplace conflict, amotivation or withdrawal; that her poor memory and concentration and impaired multi-tasking ability would lead to poor decision-making and decreased efficiency and finally, that her stress intolerance would cause further withdrawal or a worsening of emotional symptoms. These conclusions by Dr. Shahmalak are corroborated by the observations of Ms. Kara regarding the two homework assignments.

39I find the applicant’s performance during Ms. Kara’s ‘double-checking task’ highlights the ‘physical symptoms-anxiety-depression cycle’ theory outlined by Dr. Shahmalak, which supports his rating of markedly impaired in the domain of CPP. The double-checking task asks the applicant to compare two documents and identify the errors. The applicant expressed confidence on initiation, began to feel frustrated, and after a minute expressed that she felt stupid, and then soon began to experience back pain intensification. Upon completion the applicant was surprised to learn that she had only identified about one-third of the errors.

40I find that Dr. Eisen’s report erroneously places too much weight on his assumption regarding pre-existing mental health issues and his disbelief that the subject accident could have related to a haematoma the applicant suffered in her uterus. Dr. Eisen stated in his report that the applicant’s self-report that she had a surgery in relation to a hematoma in her uterus that was as a result of the accident could not be accurate. I find that the haematoma suffered by the applicant was caused by the subject accident. At the hearing, Dr. Eisen withdrew this contention when shown a report by Dr. Nicholas Pairaudeau, obstetrician, of April 5, 2024, that provided the opinion that the subject accident was the cause of a c-section delivery and a subsequent haematoma which required surgery.

41Finally, Dr. Eisen also opined that the applicant minimized her pre-existing mental health and emotional issues, noting that the clinical notes and records of Dr. Fung demonstrated mental health and physical issues for which the applicant was receiving care. However, I disagree, and I find the testimony of Dr. Fung was enlightening with regard to Dr. Eisen’s belief, because Dr. Fung testified that the pre-existing issues had fully resolved years prior to the subject accident and were related to family dynamics as opposed to any mental health concerns. As a result, I find this undermined Dr. Eisen’s report further such that I assigned limited weight to his conclusions.

42I find, on a balance of probabilities, that the applicant suffered a Class 4 Marked Impairment, in the sphere of CPP, as a result of the subject accident.

The applicant has a marked impairment in the sphere of adaptation

43Adaptation or 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 signs and symptoms. He or she may decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stressors common to the environment include attendance, making decisions, scheduling, completing tasks and interacting with others.

44For the reasons that follow I find, on a balance of probabilities, that the applicant suffered a Class 4 Marked Impairment, in the sphere of adaptation, as a result of the subject accident.

45The applicant now has significant difficulty coping. In her report, Ms. Kara highlights that the applicant was able to navigate her responsibilities at work, at home, in the community and with family with ease prior to the accident. However, the applicant now decompensates in the face of simple activities and minor obstacles, floundering in emotional distress and physical fatigue. All of which suggested to Ms. Kara that the applicant would struggle to maintain composure if faced with the pressures of her pre-accident work role. In this regard I highlight the applicant’s performance on the double-checking task, the applicant’s lack of action to address identified obstacles in the spousal relationship and the outsourcing of childcare, even though it places additional financial strain on the family finances.

46Dr. Shahmalak draws on the report of his co-assessor Ms. Kara to highlight the OT’s observations during situational assessments, which the Guides emphasize are the best clinical predictor of future work performance. The applicant’s pre-accident role involved regular interactions with students and faculty which required clear communication and effective collaboration. Ms. Kara relates that during her assessment the applicant was hesitant to engage in tasks, demonstrated reliance on her children for support and that her performance was inadequate during assigned tasks. Ms. Kara concluded that the applicant struggles to process information and is easily overwhelmed. I find Ms. Kara’s observations outline a marked contrast with the applicant’s pre-accident abilities as evidenced by her critical thinking, problem-solving, and policy analysis focused job from pre-accident.

47Dr. Shahmalak opines that prior to the subject accident, the applicant had no reported work-related socialization, attendance, or performance difficulties. Following the subject accident, the applicant extended her maternity leave, transitioned from short-term disability support to long-term disability support and has transitioned to a sheltered lifestyle. Dr. Shahmalak relates that he observed the applicant had difficulty maintaining attention throughout his exam and did not demonstrate the capacity to maintain work-appropriate engagement and emotional demeanor. For the reasons outlined above, I find Dr. Shahmalak’s opinion persuasive.

48I find that Dr. Eisen’s rating in this sphere does not align with the facts and analysis in his report. Dr. Eisen concluded that the applicant sustained a moderate impairment. However, I find that Dr. Eisen did not give due consideration in his report to the fact the applicant had not returned to work almost four years after the accident, that the applicant was highly dependent on her personal support worker and family for basic activities of daily living, and the applicant was unable to complete the occupational therapy assessment. His report suggests to me that these considerations were dismissed without a fulsome analysis or for reasons that are not otherwise borne out by the medical evidence before me. For this reason, I place less weight on Dr. Eisen’s assessment in relation to this sphere.

49I find on a balance of probabilities, for the reasons above, that the applicant suffered a Class 4 Marked Impairment, in the sphere of adaptation, as a result of the subject accident

ORDER

50For the reasons above I find, on a balance of probabilities, that the applicant has sustained a catastrophic impairment, as a direct result of the subject accident, as defined by the Schedule.