Licence Appeal Tribunal File Number: 24-009848/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:
Ian Perrigard
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Nathan Prince
APPEARANCES:
For the Applicant: Maciek Piekosz, Counsel Victoria Edwards, Counsel
For the Respondent: Allison Webster, Counsel
Heard by Videoconference: May 14, 15, and 16, 2025
OVERVIEW
1Ian Perrigard, the applicant, was involved in an automobile accident on December 28, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUE
2The issue in dispute is:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule? Note: catastrophic impairment is being disputed under s.3(2)(f) of the Schedule.
RESULT
3The applicant has not met his onus of demonstrating that he sustained a catastrophic impairment as defined by s.3(2)(f) of the Schedule.
ANALYSIS
The applicant has not demonstrated that he is catastrophically impaired under s.3(2)(f) of the Schedule
4I find that the applicant is not catastrophically impaired (“CAT”) as defined in the Schedule under s.3(2)(f).
5The subject accident occurred on December 28, 2015 and therefore the current version of the Schedule, which includes the 2016 amendments to the definition of catastrophic impairment, are not applicable to this matter. The applicable test for CAT determination in this matter is based on the Schedule as it was on December 28, 2015.
6In order to prove his case, the applicant must demonstrate that he has suffered accident-related impairments that result in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) in one or more areas of function according to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (“AMA Guides”), due to a mental or behavioural disorder. Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning.
7The AMA Guides set out the four spheres or areas of function and the relative levels of impairment. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one, see: Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30.
8The four spheres of functioning as set out in the AMA Guides are as follows:
i. activities of daily living
ii. social functioning
iii. concentration, persistence, and pace
iv. adaptation
9Within each sphere, there are 5 possible levels of impairment:
i. Class 1 – no impairment: No impairment is noted
ii. Class 2 – mild impairment: Impairment levels are compatible with most useful functioning
iii. Class 3 – moderate impairment: Impairment levels are compatible with some, but not all useful functioning
iv. Class 4 – marked impairment: Impairment levels significantly impede useful functioning
v. Class 5 – extreme impairment: Impairment levels preclude useful functioning
10The parties agree that the applicant does not suffer from a Class 4 or Class 5 impairment in the spheres of activities of daily living; social functioning; and concentration, persistence, and pace. The point of divergence is solely with respect to the sphere of adaptation. The applicant submits that he has a class 4 impairment (marked) in the sphere of adaptation whereas the respondent submits that the applicant’s impairment in adaptation is class 3 (moderate).
11For the reasons that follow, I find on a balance of probabilities that the applicant suffers from a class 3 (moderate) impairment in the sphere of adaptation and therefore does not meet the definition of CAT under s.3(2)(f) of the Schedule.
The applicant suffers from a class 3 impairment in the sphere of adaptation
12I find on a balance of probabilities that the applicant’s impairment level is such that it is compatible with some, but not all, useful functioning and therefore find that he has a class 3 impairment in the sphere of adaptation.
13As per the AMA Guides, adaptation (deterioration or decompensation in work or work like settings) refers to the 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.
14The applicant relies on the occupational therapy report of Kelly Smale who conducted a two-day assessment of the applicant on June 29 and June 30, 2021, and the psychiatry CAT determination report of Dr. Leslie Kiraly who concluded that the applicant suffers from a class 4 (marked) impairment in the sphere of adaptation.
15The respondent relies on the occupational therapy report of Joseph Morgan who conducted a two-day assessment of the applicant on April 12 and April 13, 2023, and the CAT determination report of Dr. Sadiq Hasan, Psychiatrist, who concluded that the applicant suffers from a class 3 (moderate) impairment in the sphere of adaptation.
16On day 1 of his assessment with Ms. Smale, the applicant was able to complete all tasks, although he did require breaks and needed to take a 20-minute walk during the assessment. Nonetheless, I find that his ability to push through task completion highlights his ability to adapt and persevere through tasks which he found to be novel and cognitively demanding. On day 2, the applicant was assessed in the community. He arrived on time at the agreed upon location and was able to complete the assigned shopping tasks and interact appropriately with store employees. Again, he required breaks and exhibited signs of stress and anxiety while completing the shopping tasks, but he was still able to complete them as instructed.
17Similarly, the applicant was able to complete tasks assigned by Mr. Morgan. For example, the applicant completed a cooking task which involved creating an ingredient list, going to the grocery store to get the ingredients, and then making a meal. Mr. Morgan testified that the applicant was able to sustain attention throughout the assessment and had useful functioning across various domains, although he did become overwhelmed after some time and had some difficulties multitasking.
18I find that the applicant’s ability to complete the tasks asked of him during both occupational therapy assessments is indicative of the fact that he can adapt to some situations. While I acknowledge that he became overwhelmed and anxious at times, he was nonetheless able to complete the assessment tasks.
19With respect to his work history, at the time of the accident, the applicant had been working as a truck driver for nearly a decade with a consistent full-time employment record. After the accident, the applicant was off work for ten months, eventually returning to his pre-accident employment on a full-time basis. Shortly after returning to full-time work, the applicant was let go from his job due to restructuring. The following month, the applicant found a new job in a seasonal position, again driving a truck. The applicant testified that he would work 6 days per week and more than 200 hours per month during his seasonal work. He further testified that he would then require months to recuperate from the demands of his seasonal employment. The applicant continued to work on a seasonal basis for five years post-accident, after which he did not return to work.
20There was no evidence which suggested that the applicant had difficulties with attendance, making decisions, scheduling, completing tasks, or interacting with supervisors or peers during his seasonal employment stints. To the contrary, the applicant testified that he got along well with others at his job. I find that the applicant’s ability to work for five years post-accident and his ability to appropriately interact with others and complete the tasks of his employment illustrate some useful functioning in the sphere of adaptation.
21With respect to activities of daily living, the applicant testified that, while there are some limitations, he is independent with his personal care activities, he prepares his own meals, he maintains his trailer, he does his own grocery shopping, and he is responsible for his own banking and finances. This aligns with the observations of Mr. Morgan who noted in his report that the applicant’s current function level is congruent with some but not all useful functioning across the domains such as personal care, cooking, finances, and shopping.
22With respect to his social interactions, the applicant testified that he feels isolated and no longer socializes. He indicated that many of his friendships revolved around his social activities, such as kayaking, but as he no longer engages in many of his pre-accident social activities, he has lost these friendships. He further noted that his relationship of approximately 25 years had broken down post-accident. With respect to his family interactions, he has two adult children and one grandson. Ms. Smale’s report indicates that the applicant had recently resumed interaction with his children and that he described his relationship with them as good. While the applicant may not have the same social network he had pre-accident, I find that the applicant’s ability to repair and maintain relationships with his family members shows a level of functioning that is more aligned with a class 3 (moderate) impairment in the sphere of adaptation.
23In considering the competing CAT assessment reports of Dr. Kiraly and Dr. Hasan, I prefer the findings of Dr. Hasan who opined that the applicant suffers from a class 3 (moderate) impairment in the sphere of adaptation. I am not persuaded by Dr. Kiraly’s conclusion that the applicant suffers from a class 4 (marked) impairment in the sphere of adaptation because his account of the applicant’s post-accident employment contains several key errors and omissions. For example, Dr. Kiraly states that the applicant was let go from his full-time employment due to poor performance and that he couldn’t sustain the pressures of the workplace environment due to ongoing pain symptoms, cognitive difficulties and mood problems. These findings are incongruent with the evidence which shows that that the applicant was let go from his full-time employment due to restructuring. And while the applicant testified that he found his return to full-time work to be stressful, there was no indication that he was unable to sustain the pressures of his workplace or that he would not have continued in his full-time position had he not been let go due to restructuring. Moreover, Dr. Kiraly’s analysis fails to address the fact that the applicant continued to work on a seasonal basis for five years after his full-time position was terminated. When asked about this omission during cross-examination, Dr. Kiraly testified that he did not have access to any details regarding the applicant’s seasonal employment.
24In contrast, the section 44 report of Dr. Hasan considers the complete post-accident work history of the applicant. Dr. Hasan notes that the applicant stated that he was let go from his full-time employment as a result of restructuring and subsequently obtained a seasonal position as a truck driver delivering fertilizer for a farm supply company for 8-10 weeks out of the year and working high volume hours of 60-70 hours per week. He was employed in this capacity for several years until 2021 and was able to successfully fulfill his job duties. Dr. Hasan opined, and I accept his conclusion, that the applicant’s post-accident work history more aligns with a class 3 (moderate) impairment as he exhibited some useful functioning.
25The applicant points me to several cases which he submits are analogous to this matter; however, I find that these cases do not assist the applicant for the following reasons:
i. Dyer v Economical Insurance Company, 2024 CanLII 33186 (ON LAT): This case involved a finding of marked impairment in adaptation; however, the applicant in this case could not be relied upon to engage in any consistent activity reliably and independently, would spend days or weeks laid out and doing nothing, and was unable to engage in any meaningful employment post accident. I find that this case is distinguishable from the matter before me because the applicant here has engaged in meaningful employment post-accident and has the ability to engage independently in many activities.
ii. Bishop v TD General Insurance Company, 2022 CanLII 33194 (ON LAT): Again, the Tribunal found the applicant in this case to be markedly impaired in the sphere of adaptation; however, she had not worked post-accident and faced everyday life with considerable family support. Furthermore, she was prone to behavioural outbursts that would be inappropriate in public and would not be tolerated in a work like setting. Again, I find this case to be distinguishable because the applicant in the case before me has worked post-accident and is independent with everyday tasks.
iii. Harbin v Echelon General Insurance Company, 2024 CanLII 28818 (ON LAT): Again, the Tribunal found that the applicant was markedly impaired in the sphere of adaptation; however, this finding was based on the fact that she had an inability to return to work, was having dissociative episodes, and was reliant on her partner and support dog. Again, I find this case to be distinguishable from the matter before me because the applicant here has a lengthy history of post-accident employment and is living independently and not reliant others.
26Based on the totality of the evidence before me, I find that the applicant’s level of functioning in the sphere of adaptation to be compatible with some, but not all useful functioning, and therefore find that the applicant suffers from a class 3 (moderate) impairment in the sphere of adaptation.
27As the applicant does not suffer from a class 4 (marked) impairment in any of the four spheres of functioning, it follows that the applicant is not catastrophically impaired as defined by s.3(2)(f) of the Schedule.
ORDER
28For the reasons outlined above, I find:
i. The applicant has not sustained a catastrophic impairment as defined by s.3(2)(f) of the Schedule; and
ii. The application is dismissed.
Released: June 26, 2025
Nathan Prince
Adjudicator